State ex rel. State Highway Dept. of New Mexico v. Branchau

• Decision Date: 22 June 1977
• Docket Number: No. 11201,11201
• Citation: 565 P.2d 1013,1977 NMSC 48,90 N.M. 496
• Parties: STATE of New Mexico, ex rel. STATE HIGHWAY DEPARTMENT of New Mexico, Petitioner-Appellant, v. Dorothea A. BRANCHAU et al., Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 1013

565 P.2d 1013

90 N.M. 496

STATE of New Mexico, ex rel. STATE HIGHWAY DEPARTMENT of New Mexico, Petitioner-Appellant, v. Dorothea A. BRANCHAU et al., Defendant-Appellee.

No. 11201.

Supreme Court of New Mexico.

June 22, 1977.

[90 NM 496] Toney Anaya, Atty. Gen., Richard Russell, Henry Rothschild, State Highway Dept. Asst. Attys. Gen., Santa Fe, for appellant.

Jones, Gallegos, Snead & Wertheim, J. E. Gallegos, Steven L. Tucker, Santa Fe, for appellee.

OPINION

McMANUS, Chief Justice.

The State of New Mexico brought an eminent domain action in the District Court of Quay County seeking to acquire some of Branchau's property. The jury returned a verdict in the sum of $21,800 and the State appealed. We reverse.

The State's basic contention was that the trial court erred in permitting Nathan Bell, an expert witness called on behalf of Branchau, to testify even though he was not listed in the pretrial order. The State objected immediately after opening argument when Bell's name was revealed and later when Bell was called to testify. The State also objected to the trial court's denial of its requested motion to question the jury on voir dire concerning any business or personal relationships between Bell and the jurors.

The pretrial order provided that the State and Branchau were to exchange appraisal reports and the names of all of the witnesses on October 5, 1976. Trial was scheduled to start October 12, 1976. Appellee contends that since Bell did not give a value statement it was unnecessary to name him according to the pretrial order and that she informed the State that she would call a "land value witness" and the State did not object when the witness' identity was not disclosed.

N.M.R.Civ.P. 16 (§ 21-1-1(16), N.M.S.A. 1953 (Repl. Vol. 4, 1970)) concerning pretrial procedures provides The court shall make an order which recites the action taken at the conference, the amendments allowed to the pleadings, and the agreements made by the parties as to any of the matters considered, and which limits the issues for trial to those not disposed of by admissions or agreements of counsel; and such order when entered controls the subsequent course of the action, unless modified at the trial to prevent manifest injustice.

The pretrial order determines the issues and becomes the law of the case. Johnson v. Citizens Casualty Company of New York, 63 N.M. 460, 321 P.2d 640 (1958). As set forth in the rule, the test for modification is the prevention of manifest injustice which determination is within the discretion of the trial court. Herrera v. Springer Corporation, 89 N.M. 45, 546 P.2d 1202, cert. denied, 89 N.M. 206, 549 P.2d 284 (1976). Such decision is reviewable for an abuse of that discretion. Transwestern Pipe Line Company v. Yandell, 69 N.M. 448, 367 P.2d 938 (1961).

The Court of Appeals in a similar situation held that the trial court did not abuse its discretion in permitting a witness to testify whose identity was not revealed at the time set forth in the pretrial order. In Tobeck v. United Nuclear-Homestake Partners, 85 N.M. 431, 512 P.2d 1267 (Ct.App.1973), the pretrial order stated that the parties would exchange the names of the witnesses thirty (30) days before trial. However, seventeen (17) days before the trial the defendants notified the plaintiff that they were calling an additional...