El Paso Elec. Co. v. Real Estate Mart, Inc.

• Decision Date: 20 July 1982
• Docket Number: No. 5365,5365
• Citation: 98 N.M. 570,1982 NMCA 117,651 P.2d 105
• Parties: EL PASO ELECTRIC COMPANY, a Texas corporation, et al., Plaintiffs-Appellees, v. REAL ESTATE MART, INC., Defendant-Appellant.
• Court: Court of Appeals of New Mexico

Page 105

651 P.2d 105

98 N.M. 570

EL PASO ELECTRIC COMPANY, a Texas corporation, et al., Plaintiffs-Appellees, v. REAL ESTATE MART, INC., Defendant-Appellant.

No. 5365.

Court of Appeals of New Mexico.

July 20, 1982.

Rehearing Denied Aug. 5, 1982.

Certiorari Denied Sept. 16, 1982.

Stephen A. Hubert, Beverly J. Singleman, Martin, Lutz, Cresswell & Hubert, P. A., Las Cruces, for plaintiffs-appellees

George T. Harris, Arthur D. Melendres, Zachary L. McCormick, Modrall, Sperling, Roehl, Harris & Sisk, P. A., Albuquerque, for defendant-appellant.

OPINION

NEAL, Judge.

In this eminent domain case the jury awarded appellant $25,070.00 for a power line easement, and $1,000.00 for trespass damages. Appellant appeals. Five issues, all dealing with admission or exclusion of evidence, are raised:

1. The trial court erred in allowing the condemnor utilities to present two witnesses who were not listed in the pretrial order.

2. The trial court compounded this error when it refused to allow appellant to rebut evidence presented by Mr. Murray, one of the witnesses not listed in the pretrial order.

3. Evidence of settlement negotiation was admitted contrary to N.M.R.Evid. 408, N.M.S.A.1978.

4. Prejudicial error occurred during jury view of the property.

5. The trial court erred in modifying U.J.I. 7.11, N.M.S.A.1978.

We affirm.

1) Witnesses not listed in the pretrial order.

This claim involves two witnesses, Mr. Burleson and Mr. Murray. For the sake of clarity, and because the circumstances require it, we consider each witness separately.

Burleson

A pretrial order was entered pursuant to N.M.R.Civ.P. 16, N.M.S.A.1978, (1980 Repl.Pamph.). The order did not list Mr. Burleson as a witness. Burleson was to be called on a Monday. On the previous Friday appellees moved the trial court to amend the pretrial order to add Mr. Burleson as a witness. Appellants were present at the hearing on the motion. The trial court allowed amendment of the pretrial order, and Mr. Burleson was added as a witness. In doing so, the trial court specifically directed appellees to make Burleson available for interview over the weekend.

Appellant relies on State ex rel. S. Hwy. Dept. v. Branchau, 90 N.M. 496, 565 P.2d 1013 (1977), and El Paso Elec. Co. v. Pinkerton, 96 N.M. 473, 632 P.2d 350 (1981). Branchau holds that, in an eminent domain proceeding, allowing an unexpected expert witness not listed in the pretrial order to testify is reversible error. In Pinkerton El Paso Electric presented its case first, and the landowner then presented his case. At the close of the landowner's case El Paso Electric called a witness not listed in the pretrial order. The witness testified as to the value of the land. Our Supreme Court held that this evidence was properly part of El Paso Electric's case-in-chief, and that the utility could not escape the requirement that it list its witnesses in the pretrial order simply by labeling property value evidence as "rebuttal." Rebuttal witnesses need not be listed in the pretrial order, Martinez v. Rio Rancho Estates, Inc., 93 N.M. 187, 598 P.2d 649 (Ct.App.1979); rebuttal witnesses are those witnesses " 'whose testimony reasonably cannot be anticipated before the time of trial,' " Wirth v. Commercial Resources, Inc., 96 N.M. 340, 630 P.2d 292 (Ct.App.), cert. denied, 96 N.M. 543, 632 P.2d 1181 (1981).

Appellant's reliance on Branchau and Pinkerton, supra, is misplaced. In both of those cases the witness was never listed in the pretrial order. Here the witness, Burleson, was added to the pretrial order two days before being called as a witness. The trial court, in its discretion, may amend a pretrial order when no unfairness will result. Rule 16, supra; Tobeck v. United Nuclear-Homestake Partners, 85 N.M. 431, 512 P.2d 1267 (Ct.App.1973).

No unfairness resulted here. Appellant had the opportunity to interview Burleson who was a partner of and a substitute for an expert witness listed in the pretrial order. There was no surprise. This further distinguishes this case from Branchau and Pinkerton, supra. In both of those cases there was no chance to pursue discovery. In that situation it would be unfair to allow the witness not listed in the pretrial order to testify. Here, however, appellant had knowledge of Burleson and an opportunity to interview Burleson to determine whether his testimony departed from that which would have been given by the expert for whom Burleson was a substitute.

Murray

Unlike Burleson, Murray was never listed in the pretrial order. Murray was called to impeach Roe Pleyte, an officer of appellant Real Estate Mart. During appellant's case-in-chief, Pleyte testified that the property was worth $648,426.00. Appellees, on cross-examination, asked Pleyte if he had ever stated, at a meeting in 1975, that the land was worth $350,000.00. He answered: "I don't remember that, no." Murray was later called by appellees; his direct testimony covers only two pages of the transcript. Murray was asked if, at a 1975 meeting, Pleyte had placed a value on the land. Murray testified that Pleyte had stated that the land was worth $350,000.00.

Appellants contend that Branchau and Pinkerton require reversal. Appellees contend that Murray was called to impeach Pleyte, and therefore his testimony comes within "rebuttal". We do not decide this question, however, because the issue has not been properly preserved.

At a chambers conference before Murray was called as a witness, appellees announced that Murray would be called as an impeachment witness and appellant was informed as to the content of Murray's testimony. At the conference, appellant stated that it did not know whether or not it would object. When Murray was called appellant objected claiming that Murray was going to present evidence from settlement negotiation, in violation of Evidence Rule 408. The trial court overruled this objection. Appellant never objected on the ground that Murray was not listed in the pretrial order. This argument is being raised for the first time on appeal.

Objections must alert the trial court to error in order to preserve the issue for review. Marquez v. Marquez, 74 N.M. 795, 399 P.2d 282 (1965); Hill v. Burnworth, 85 N.M. 615, 514 P.2d 1312 (Ct.App.1973). Had appellant objected on the ground that Murray was not listed in the pretrial order, the trial court would have ruled on that issue. Having failed to alert the trial court to the pretrial order issue, appellant must suffer the consequences. Furthermore, arguments not raised in the trial court cannot be raised for the first time on appeal. Wynne v. Pino, 78 N.M. 520, 433 P.2d 499 (1967); Batchelor v. Charley, 74 N.M. 717, 398 P.2d 49 (1965). The claim that Murray was not listed in the pretrial order was not raised below, and will not be considered.

Whether or not Murray was improperly allowed to present evidence of settlement negotiation is discussed under point three of this opinion.

2. Refusal to allow appellant to rebut evidence presented by Murray.

Murray's direct testimony was limited to whether or not Roe Pleyte, at a meeting held in November 1975, valued the land at $350,000.00. Appellant conducted vigorous cross-examination of Murray. Appellant also wanted to introduce two letters and a memorandum to rebut Murray's testimony. Arguing that the two letters and the memorandum did not concern the November 1975 meeting, appellees objected. The trial court sustained the objection.

The scope of rebuttal testimony is within the discretion of the trial court. Weiland v. Vigil, 90 N.M. 148, 560 P.2d 939 (Ct.App.), cert. denied, 90 N.M. 255, 561 P.2d 1348 (1977); Phillips v. Smith, 87 N.M. 19, 528 P.2d 663 (Ct.App.), cert. denied, 87 N.M. 5, 528 P.2d 649 (1974). Rebuttal testimony should be limited to the matter in issue; a witness cannot state everything he recalls. Nichols v. Sefcik, 66 N.M. 449, 349 P.2d 678 (1960); See, State v. Manus, 93 N.M. 95, 597 P.2d 280 (1979).

The trial court did not abuse its discretion in refusing to admit the two letters and the memorandum into evidence. One of the letters was written by Mr. Pleyte in January 1975, eleven months prior to the November 1975 meeting. The other letter was written by Pleyte in April 1975. The memorandum was written by Mr. Pleyte on September 18, 1975, after a phone conversation. The trial court was justified in concluding that these three proffered exhibits were not sufficiently related to the matter in issue, the November 1975 meeting, to warrant their introduction as rebuttal evidence.

Appellant also claims that Mr. Pleyte was not allowed to testify in rebuttal of Murray's testimony. This is incorrect. Mr. Pleyte was not questioned concerning statements made by him at the meeting in November 1975 nor was a tender made as to any such statement. The questioning went entirely to the two letters and the memorandum properly excluded as evidence. Inasmuch as Mr. Pleyte was not questioned concerning statements made by him at the November 1975 meeting, the claim that Mr. Pleyte was not permitted to testify is a false issue. See Evidence Rule 103.

3. Evidence of settlement negotiation.

Murray testified about a meeting between appellant and appellees held in November 1975. He stated that, at that meeting, Pleyte valued the land at $350,000.00. Appellant objected contending that Murray's testimony was evidence of value presented during settlement negotiation and therefore inadmissible under Evidence Rule 408. We disagree.

Under Rule 408 evidence of settlement negotiation is not admissible to prove liability or the amount of the claim. The rule does not prohibit the introduction of all evidence derived from settlement negotiation. It states: "This rule [Rule 408] does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations."

Rule 408 further provides: "This rule also does not require exclusion when the evidence is offered...