Martinez v. Rio Rancho Estates, Inc.

• Decision Date: 05 July 1979
• Docket Number: No. 3697,3697
• Citation: 598 P.2d 649,1979 NMCA 86,93 N.M. 187
• Parties: Manuel A. MARTINEZ and Patricia A. Martinez, Plaintiffs-Appellants, v. RIO RANCHO ESTATES, INC., and Amrep Construction Corporation, as New Mexico Corporations, Defendants-Appellees.
• Court: Court of Appeals of New Mexico

Page 649

598 P.2d 649

93 N.M. 187

Manuel A. MARTINEZ and Patricia A. Martinez Plaintiffs-Appellants, v. RIO RANCHO ESTATES, INC., and Amrep Construction Corporation, as New Mexico Corporations Defendants-Appellees.

No. 3697.

Court of Appeals of New Mexico.

July 5, 1979.

[93 NM 187] David W. King, Albuquerque, for plaintiffs-appellants.

Richard A. Winterbottom, Jerrald J. Roehl, Jerrald J. Roehl & Associates, Albuquerque, for defendants-appellees.

OPINION

WALTERS, Judge.

The interesting question presented: Shall an engineer-expert, who is also an attorney and has signed one of the pleadings in the case but participated no further as an attorney, be excluded as an expert witness on matters not concerned with the attorney-client privilege? is not reached on this appeal, because we decide it on another ground.

Martinez complains on appeal that the trial court committed error in refusing to allow his engineering expert to testify on rebuttal. The same witness had originally signed an entry of appearance on behalf of defendant Rio Rancho, but although no withdrawal and substitution of counsel were filed, he did not, in fact, act any further as an attorney in the case. At oral argument counsel for appellant advised the court that he learned of the witness's expertise a few days before trial, and he sought to have him testify in appellant's case-in-chief. However, upon objection by Rio Rancho that the name of the witness was not included in the pre-trial order and that his testimony would be a surprise, the trial court sustained the objection and would not permit the witness to take the stand.

The witness had written a letter to Rio Rancho which might have had substantial bearing on Martinez's claim for punitive damages, and it was with respect to the contents of the letter that Martinez wished to examine the expert in the presentation of his case. In ruling that the witness could not testify, because of surprise to appellee, the court suggested that the letter be introduced through another witness. It was intimated at oral argument that Martinez inadvertently rested without introducing the letter, so counsel attempted to bring the witness back on rebuttal notwithstanding the court's earlier ruling that the witness would not be allowed to testify.

Rule 16, R.Civ.P., N.M.S.A.1978, provides that the trial court may enter a pre- trial order which, "when entered controls the subsequent course of the action, unless modified at the trial to prevent...