Poorbaugh v. Mullen

• Decision Date: 21 September 1982
• Docket Number: No. 5451,5451
• Citation: 653 P.2d 511,99 N.M. 11,1982 NMCA 141
• Parties: Fred W. POORBAUGH, Plaintiff-Counterdefendant, Appellee Cross-Appellant, v. Leo M. MULLEN, Defendant-Counterclaimant, Appellant Cross-Appellee.
• Court: Court of Appeals of New Mexico

Page 511

653 P.2d 511

99 N.M. 11

Fred W. POORBAUGH, Plaintiff-Counterdefendant, Appellee Cross-Appellant, v. Leo M. MULLEN, Defendant-Counterclaimant, Appellant Cross-Appellee.

No. 5451.

Court of Appeals of New Mexico.

Sept. 21, 1982.

Rehearing Denied Nov. 5, 1982.

Certiorari Denied Nov. 5, 1982.

[99 N.M. 14] Fred W. Poorbaugh, pro se.

Michael G. Rosenberg, Michael R. Rosenberg & Associates, P.C., Albuquerque, Winston Roberts-Hohl, Singleton & Roberts-Hohl, Santa Fe, for defendant-counterclaimant, appellant cross-appellee.

OPINION

DONNELLY, Judge.

Plaintiff, Fred W. Poorbaugh (appellee), and defendant Leo M. Mullen (appellant), have each appealed judgments entered against them based upon jury verdicts on the complaint and counterclaim. The jury awarded appellee $50,000.00 actual damages and $10,000.00 punitive damages on appellee's claims of defamation stemming from a dispute between the parties over a real estate transaction. The jury also returned a verdict on appellant's counterclaim, awarding him $60,000.00 actual damages for constructive fraud arising from the same real estate transaction.

If allowed to stand on appeal, the judgments recovered below in favor of each party would exactly cancel each other out.

Appellee claims on his cross-appeal that (1) this court should set aside the award on the counterclaim because of the use of improperly secured evidence; (2) that the trial court erred in giving a jury instruction specifying the duties of a real estate broker; and (3) the court abused its discretion in failing to grant a judgment N.O.V. on the counterclaim.

Appellant alleges on his appeal that the trial court erred in: (1) refusing to grant judgment N.O.V. on appellee's defamation claims; and (2) the giving of a jury instruction on defamation.

This case was previously before us on appeal from an order of the trial court granting summary judgment in favor of the appellee and dismissing appellant's counterclaim. The facts that gave rise to the claims of the parties are set forth in our prior decision. Poorbaugh v. Mullen, 96 N.M. 598, 633 P.2d 706 (Ct.App.1981); see also Poorbaugh v. New Mexico Real Estate Com'n, 91 N.M. 622, 578 P.2d 323 (1978).

I. POORBAUGH'S CROSS-APPEAL

(A) Claim of Improper Subpoena

Appellee contends that this court should set aside appellant's recovery against him under the counterclaim because appellant was guilty of fraud and gross error in procuring and introducing certain documentary evidence at trial. Specifically, appellee contends that Mullen obtained appellant's Exhibits 6, 8, 9, 10 and 11 by means of an improper subpoena duces tecum served in April, 1981, upon Max M. Mansur, an officer of the Albuquerque Board of Realtors. The documents were used at trial in furtherance of appellant's counterclaim against appellee.

Appellee's brief contends that the subpoena was fraudulent because it bore neither the signature of the clerk of the district court nor the seal of the court and was issued after a court order closed further discovery. Appellee argues that these alleged improprieties in obtaining evidence require reversal of the judgment against him.

Appellee contends he first learned of the improper use of the subpoena after trial. His brief fails to pinpoint the date he first discovered this violation, but asserts it was after "jurisdiction had passed from the trial court." We presume this means after the case was on appeal.

Appellee has attached to his brief a copy of the subpoena duces tecum and an affidavit from the clerk of the Bernalillo County District Court. In it she states that she found no record of the subpoena in the court files in this case. The affidavit does not state that the subpoena was not in fact properly issued by the district court clerk.

Appellee's claim of error regarding the subpoena does not warrant reversal. Examination of the record regarding the items obtained under the subpoena indicates that appellee either concurred in the introduction of the evidence or as to other evidence obtained by the subpoena, objected to its admission and was sustained by the trial court.

Exhibit 6 was a copy of a letter, dated January 24, 1964, to appellee from Roger Cox, Chairman of the Albuquerque Multiple Listing Service and advising him that he had been fined $25.00 for listing property without a waiver. The letter was admitted into evidence at the request of appellant's attorney during his cross-examination of appellee. When appellant originally tendered the exhibit, appellee's attorney objected to its introduction and the court sustained the objection outside the presence of the jury. After laying further foundation, appellant's attorney again tendered the letter into evidence and the court announced it was admitted into evidence. After securing the admission of the exhibit, appellant's counsel apparently then had second thoughts about offering the document and sought to have it withdrawn from evidence. The following colloquy occurred outside the presence of the jury.

MR. ROSENBERG: Okay. I would like to withdraw it. May I do that?

MR. TAYLOR: Oh, no, Your Honor. He's already--

MR. HINES: You have admitted it. You offered it.

MR. TAYLOR: He's put it in front of the jury.

MR. ROSENBERG: Now, wait a minute.

MR. TAYLOR: He doesn't like what he's heard now, and he wants to take it out of the consideration of the jury. You can't do that, Your Honor.

MR. HINES: And you have ruled, Your Honor, that it's been admitted.

MR. ROSENBERG: I can withdraw it. It's my exhibit.

MR. HINES: He didn't offer to withdraw it before it was admitted. Now he's going to know what's going to happen to him on redirect, and he'd like to get it out of there, but it's in.

THE COURT: Yep. I'm afraid so, Mike.

MR. ROSENBERG: Okay. All right.

Since appellee's own attorney vigorously opposed the withdrawal of the exhibit from evidence, he will not be heard on appeal to object to the use of this evidence. Having had an opportunity to have this evidence withdrawn from the jury's consideration and electing to resist this effort, appellee waived any error alleged in the admission of this exhibit. See Beal v. Southern Union Gas Co., 66 N.M. 424, 349 P.2d 337 (1960).

Appellant's Exhibit 8 was a letter dated June 19, 1958 to appellee from Edward R. Dixon, Executive Vice President of the Albuquerque Board of Realtors, informing appellee that he was suspended from services of the board for 30 days due to some unspecified reason. Appellant's counsel offered the exhibit during cross-examination of appellee. Based on appellee's objection, the court never admitted the letter into evidence. Appellee neither asked the court to admonish the jury to disregard the letter, nor requested a cautionary instruction. No prejudice resulted from the proffer of this exhibit.

Appellant's Exhibit 9 was a letter to appellee from William C. Campbell, Jr., requesting that appellee comply with regulations, apparently of the Albuquerque Board of Realtors. This exhibit also was offered into evidence, but, upon objection from appellee's attorney, was never admitted into evidence.

Appellant's Exhibit 10 was a letter dated April 13, 1965, written by appellee to W.C. Campbell, Jr., in response to appellant's Exhibit No. 9. The court sustained appellee's attorney's objections to the letter on grounds of irrelevancy. It was not admitted into evidence, except for one sentence which appellee conceded writing and which he read into the record.

Appellant's Exhibit 11 was a note signed by appellee, dated March 21, 1975, and which read, "I request voluntary suspension from the Albuquerque Board of REALTORS, as of January 1, 1975." This exhibit was admitted into evidence without objection by appellee's attorney. Since appellee failed to voice a timely objection to the admission of this exhibit, appellee cannot be heard to complain now of the use of the exhibit during the trial. To preserve error on appeal, there must be a proper objection. N.M.R.Evid. 103(a)(1), N.M.S.A.1978; see also N.M.R.Civ.App.P. 11, N.M.S.A.1978.

In his brief, appellee states "[h]ad they [appellant's Exhibits 6, 8, 9, 10 & 11] been presented in context they would not have been damaging." It was appellee's duty at trial to attempt to clear up the context of the exhibits admitted into evidence.

Appellee's contentions concerning the subpoena duces tecum were not raised in the trial court and are argued for the first time on appeal. Appellee has filed a motion before this court seeking dismissal of the judgment against him. No motion has been made seeking remand for further consideration of this point by the trial court. The subpoena duces tecum complained of by appellee is not contained in the record before us. The rules of appellate procedure do not authorize consideration of documents attached to briefs involving exhibits not identified or tendered into evidence before the trial court. State v. Lucero, 90 N.M. 342, 563 P.2d 605 (Ct.App.), cert. denied, 90 N.M. 636, 567 P.2d 485 (1977); see Kassel v. Anderson, 84 N.M. 697, 507 P.2d 444 (Ct.App.1973). Matters not of record are not before the reviewing court on appeal. Macnair v. Stueber, 84 N.M. 93, 500 P.2d 178 (1972). Briefs are not the proper method to establish facts on appeal. Cornell v. Albuquerque Chemical Co., Inc., 92 N.M. 121, 584 P.2d 168 (Ct.App.1978). Although an appellate court is not precluded from considering facts or circumstances first becoming known after the trial court lost jurisdiction, N.M.R.Civ.App.P. 11, supra, appellee's failure to object to the introduction of Exhibits 6 and 11, and the trial court's refusal to admit Exhibits 8, 9 and 10 due to appellee's objections fails to establish any prejudicial error on this claim.

We do not sanction the improper use of process of a court, but even if appellee's assertions are true, the remedy is not reversal. The avenues for redress of such an alleged error include a motion to quash the subpoena, inquiry into the...