Richardson v. Rutherford

• Decision Date: 08 February 1990
• Docket Number: No. 17673,17673
• Citation: 787 P.2d 414,109 N.M. 495,1990 NMSC 15
• Parties: E.W. RICHARDSON and Richardson Properties, Inc., d/b/a Richardson Ranch, Plaintiffs-Appellees and Cross-Appellants, v. Roger RUTHERFORD, Glenda Rutherford and Randall Rutherford, Defendants-Appellants and Cross-Appellees.
• Court: New Mexico Supreme Court

Page 414

787 P.2d 414

109 N.M. 495

E.W. RICHARDSON and Richardson Properties, Inc., d/b/a Richardson Ranch, Plaintiffs-Appellees and Cross-Appellants, v. Roger RUTHERFORD, Glenda Rutherford and Randall Rutherford Defendants-Appellants and Cross-Appellees.

No. 17673.

Supreme Court of New Mexico.

Feb. 8, 1990.

Rehearing Granted Feb. 19, 1990.

[109 NM 496] Taylor, Gaddy, Rakes & Hall, Brad D. Hall, Albuquerque, for defendants-appellants and cross-appellees.

Paul R. Caldwell, Linda Martinez-Palmer, Santa Fe, Foy, Foy & Jollensten, Silver City, for plaintiffs-appellees and cross-appellants.

OPINION

RANSOM, Justice.

E.W. Richardson, an absentee ranch owner, and Richardson Properties, Inc., doing business as Richardson Ranch, brought suit against the manager of their ranch on sixty-one counts of conversion of property, fraud, and for misuse, abuse or neglect of buildings and equipment. (Unless otherwise indicated, E.W. Richardson and Richardson Properties, Inc., are referred to herein jointly as "Richardson.") Joined as defendants with the ranch manager, Roger Rutherford, were his wife Glenda and their son Randall. The complaint, first filed in Bernalillo County for $2,000,000 compensatory plus punitive damages, and then dismissed on grounds of forum non conveniens, was refiled for $3,000,000 in Grant County. (Richardson's counsel of record on this appeal and at trial were not his counsel prior to or at the time his lawsuit was filed and then refiled.)

Preceding the filing of these complaints, however, Mr. Richardson personally had confronted Rutherfords, accusing them of various acts of theft and embezzlement. Rutherfords alleged at trial that Richardson threatened them with physical violence. Although, Rutherfords contend, they protested to Richardson that his allegations of wholesale corruption were unfounded, Richardson nevertheless forced them to accompany him to a motel in Silver City, New Mexico, and forced them to enter into a "debt settlement agreement" by which Glenda and Randall conveyed to Richardson 636 unencumbered and 1200 encumbered acres of Arizona ranch land. In return, Richardson promised to pay $183,000 to secure the land from foreclosure and to forego legal action on his various allegations of impropriety in the management of Richardson Ranch. Richardson also promised to split with Glenda and Randall any net profit from the resale of the Arizona land, after deducting Richardson's expenses and the value of anything "missing" from Richardson Ranch. Rutherfords were to cooperate in determining the value of missing or damaged ranch property.

After the agreement was signed, Richardson terminated Rutherfords' employment and ejected them from Richardson Ranch. Rutherfords, apparently penniless, spent the next several months living in their car. Although Roger Rutherford did admit responsibility for the removal of some timber from ranch property, Rutherfords did not admit to any further improprieties nor help to compile a list of missing or damaged property subsequent to the signing of the agreement.

Richardson's complaints were filed within six months after the debt settlement agreement was signed. Roger and Glenda Rutherford counterclaimed for assault and false imprisonment, and all three Rutherfords counterclaimed for conversion of personal property and abuse of civil process. Also, Roger sought damages for defamation, and Glenda sought damages for intentional infliction of emotional distress. Rutherfords additionally claimed that Richardson used duress to obtain real property interests from Glenda and Randall.

The jury awarded $3,000 compensatory damages to Richardson as against Roger only, for conversion of property; $10,000 compensatory damages to Roger as against Richardson, plus $50,000 in punitive damages as against each plaintiff, Richardson and Richardson Properties, Inc.; $25,000 in compensatory damages to Glenda, plus $37,500 in punitive damages as against each plaintiff; and $10,000 in compensatory damages to Randall, plus $25,000 in punitive damages as against each plaintiff. Each of the Rutherfords were specially awarded their attorney's fees and expenses for defending the action. With respect to the claim of duress to obtain real property, the jury found that the fair market value of the Arizona land in question was $508,800. The jury's awards of compensatory and punitive damages in favor of Roger were lump sums unspecified as to whether for defamation or abuse of process. The jury's awards of compensatory and punitive damages in favor vor of Glenda were lump sums unspecified as to whether for assault, false imprisonment, intention al infliction of emotional distress, or abuse of process. The jury's awards o f compensatory and punitive damages in favor of Randall were lump sums unspecif i ed as to whether for conversion of personal property or abuse of process.

On Rutherfords' respective claims of abuse of process, the trial court granted to Richardson a judgment notwithstanding the verdicts (j.n.o.v.). On the claims of Glenda and Randall that Richardson was liable for duress to obtain real property, a set-off of $183,000 was granted to Richardson for trust fees, expenses and other payments made to get clear title. The fair market value of $508,800 reduced by $183,000 amounted to $325,800, or $162,900 each for Glenda and Randall. On his jury verdict of $25,000 in punitive damages against each plaintiff, Randall accepted a remittitur in the amount of $25,000 from the $50,000 total. With respect to Roger's claim of defamation, a new trial was granted to Richardson.

Richardson has fully and completely satisfied the judgment in favor of Glenda and Randall.¹ Although it would appear that Glenda and Randall have joined with Roger in claiming that it was error to grant j.n.o.v. on the Rutherfords' respective claims of abuse of process, satisfaction of the judgment in favor of Glenda and Randall has made moot their claim to error in that regard, unless we were to grant a new trial on the cross-appeal. As discussed below, we affirm the court on all cross-appeal issues. The determinative point on appeal, therefore, is Roger's claim of error in the grant of j.n.o.v. on abuse of process. First, however, we address Richardson's cross-appeal.² Richardson seeks a new trial based upon allegations that opposing counsel was guilty of improper conduct that inflamed the jury, and because evidence was presented through leading questions.

Trial court did not abuse discretion in allowing argument as to relative wealth of the parties. As specifically acknowledged by Rutherfords in their answer brief, the issue of wealth and poverty was used to argue to the jury that Richardson's motive in filing a three million dollar lawsuit was to gain clear title to Glenda and Randall's land in Arizona by coercing them to settle. Indeed, Rutherford's attorneys had commented on the relative wealth and poverty of the parties prior to a ruling by the trial court that it would allow the introduction of evidence of Richardson's wealth on the issue of punitive damages. Richardson contends that these comments improperly inflamed the passions of the jury, and, therefore, that the court erred in refusing to grant a new trial. We disagree.

Even Richardson cites authority for the unquestioned proposition that reference to wealth or poverty is proper when relevant to the issues in a particular case. Richardson fails, however, to acknowledge what we see as the relevance of wealth and poverty to Rutherfords' counterclaim. We conclude the trial court did not err in this regard.

Use of leading questions generally within the trial court's discretion. Richardson also argues the court abused its discretion in allowing leading questions by Rutherfords' counsel. With cursory analysis, Richardson's brief in chief sets forth numerous examples of the use of leading questions. Rutherfords argue in their answer brief that many of these examples are from cross-examination, some involve matters already raised in previous testimony, some were questions as to which no objection was made, and, in some instances, the district court sustained the objection. It lay within the trial court's discretion, Rutherfords argue, to allow the use of leading questions. See Jim v. Budd, 107 N.M. 489, 760 P.2d 782 (Ct.App.), cert. denied, 106 N.M. 95, 739 P.2d 509 (1987); Jojola v. Baldridge Lumber Co., 96 N.M. 761, 635 P.2d 316 (Ct.App.1981); SCRA 1986, 11-611(C).

Moreover, as Rutherfords point out, by agreement of the parties, Rutherfords presented their case in chief on the counterclaims simultaneously with their defense. It is true that a party should not by means of leading questions on cross-examination present its case in chief or substitute its words for those of a witness. Jojola, 96 N.M. at 764, 635 P.2d at 319; State v. Orona, 92 N.M. 450, 589 P.2d 1041 (1979). However, it is also true that, when the issues relevant to the opposing party's theory of the case overlap significantly with the issues relevant to cross-examination, it may be difficult to distinguish between permissible cross-examination and impermissible use of leading questions to present new evidence. Jojola, 96 N.M. at 764, 635 P.2d at 319. We cannot say on the basis of the portions of the record cited by Richardson that the trial court abused its discretion in most of the instances in which leading questions were used. Absent specific analysis by Richardson as to why these questions were improper, we conclude the trial court did not act improperly in these instances.

References to value of golf course and admission of documents of value of other properties was harmless error. One of the leading questions asked at several points by Rutherfords' counsel, however, was improper. Several of Richardson's witnesses were asked if they were aware that property "just across the road" from Glenda and Randall's land had been sold for $1000 per acre for use as a golf course....