Webb v. Webb

• Decision Date: 14 February 1975
• Docket Number: No. 10055,10055
• Citation: 87 N.M. 353,533 P.2d 586,1975 NMSC 3
• Parties: Charles B. WEBB and Charles W. Webb, d/b/a Green Chaparral Turf Ranch, Plaintiffs-Appellants and Cross-Appellees, v. Roy W. WEBB, d/b/a Green Mesa Turf, and Evelyn A. Webb, his wife, Defendants-Appellees and Cross-Appellants.
• Court: New Mexico Supreme Court

Page 586

533 P.2d 586

87 N.M. 353

Charles B. WEBB and Charles W. Webb, d/b/a Green Chaparral Turf Ranch, Plaintiffs-Appellants and Cross-Appellees, v. Roy W. WEBB, d/b/a Green Mesa Turf, and Evelyn A. Webb, his wife, Defendants-Appellees and Cross-Appellants.

No. 10055.

Supreme Court of New Mexico.

Feb 14, 1975.

Rehearing Denied March 31, 1975.

Threet, Threet, Glass King & Maxwell, Charles N. Glass, Albuquerque, for plaintiffs-appellants.

Thomas E. Jones, Albuquerque, for defendants-appellees.

OPINION

FRANK B. ZINN, District Judge.

This cause of action arose from a business dispute largely between two brothers. The plaintiffs, Charles Webb and his son, C. Wayne Webb, sued Roy Webb, the brother of Charles, claiming he owed them $5,218.00 as the balance due them for purchases of grass turf which Roy Webb had taken from time to time during the year 1969. The father and son operated a business in Albuquerque called Green Chaparral Turf Ranch selling the material for instant lawn in the form of rolls of blue grass turf. The defendant Roy Webb operated a similar business in Santa Fe under the name of Green Mesa Turf. Roy Webb denied he owed anything on the plaintiffs' claim contending it was offset or paid.

A counterclaim by Roy Webb asserted that the two brothers had agreed to start a business undertaking and that, with plaintiff C. Wayne Webb, had commenced a joint business venture for the production of grass turf, carrying it on in the years 1967, 1968 and 1969. The essentials of the agreement, as he alleges them to have been, were that he was to supply his expertise and his labor in growing, cutting and marketing of the product and to share on a one-third basis the costs and the profits of the enterprise. Charles Webb and C. Wayne Webb had the land to be used and the water source to irrigate it.

Roy Webb contended the operation was successfully developed but that after October, 1969, he was excluded from participation by the plaintiffs. He asked that they account to him for profits earned and for his share of the value of their stock in trade, the developed turf. He asked $34,000.00 as his damages.

The plaintiffs-Counterdefendants admitted in their answer to the counterclaim that some sort of agreement had existed between the parties for sharing costs and profits on the grass turf raising and selling operation. At the close of the testimony relating to the counterclaim, they asked leave of court to amend that response to deny the allegation of a partnership or joint venture agreement insofar as C. Wayne Webb was concerned. The court denied this request.

After four days of testimony, an intervening two-day weekend and a day of instructions, argument and deliberation, the jury returned a verdict for the plaintiffs for the full amount of their claim as plead originally, $5,218.00, and for the defendant in the full amount of his counterclaim in the amount of $34,000.00.

Both parties have appealed.

The appellants are the plaintiffs, Charles and C. Wayne Webb; appellee is defendant Roy Webb.

Appellants claim 'fundamental error', contending that the trial court, without any help from the parties, turned around the whole theory of the case by writing, on its own, the opening instruction to the jury setting out the issues. Whether this departure is reversible error depends on whether appellants waived this by failure to submit a proper instruction or by failing to object to the court's instruction. See Rule 51(1)(i), Rules of Civil Procedure (§ 21--1--1(51)(1)(i), N.M.S.A.1953.)

The court at one point said to both counsel:

'THE COURT: Now, between now and Friday morning, I want you both to get together and to present to me an agreed upon Instruction No. 1, and do you understand the Instruction No. 1?

'MR. JONES: Referring to 3.1 of the UJI?

'THE COURT: The first instruction that we give under the UJI which, in essence, is the statement of your case.

'MR. JONES: Yes, your honor, 3.1.

'THE COURT: 3.1, and 1 want you to present to me an agreed upon Instruction No. 1, and have your other instructions ready to present because, as I understand it, Mr. King has a couple of witnesses that he intends to call, is that correct?

'MR. KING: Yes, sir.'

The record does not disclose that the collaboration suggested by the court on the 'issues' instruction took place. Counsel for plaintiff submitted no issues instruction.

Counsel for the defendant and counterclaimant submitted a requested instruction along the lines of U.J.I. 3.2 as defendant's requested Instruction No. 1. The court's instruction and the one submitted by defendant were substantially the same insofar as stating the issues on the plaintiff's cause of action against defendant. The court wrote its own statement of the issues on the counterclaim, adopting generally the language submitted by defendant.

Counsel for plaintiffs made no objection to the court's Instruction No. 1, the issues instruction. Counsel for defendant did make an objection to the court's Instruction No. 1. The silence of plaintiff's counsel as well as the stated objection by defendant's counsel were, practically speaking, of the same effect. The judge was not there. What defendant's counsel said was not heard, and if plaintiff's counsel had spoken to the point, his remarks would merely have been recorded, not considered by the judge.

Rule 51 of the Rules of Civil Procedure, supra, explains the mechanics and requirements of the court and the parties in getting the jury instructed on the law of the case.

Subparagraph (i) of that rule reads: 'For the preservation of any error in the charge, objection must be made to any instruction given, whether in U.J.I. or not; or, in case of a failure to instruct on any point of law, a correct instruction must be tendered, before retirement of the jury. Reasonable opportunity shall be afforded counsel so to object or tender instructions.' (Emphasis supplied.)

What transpired in regard to the opportunity to object was the following:

'THE COURT: All right. Let the record reflect here that we are continuing this case on Monday, April 9th, and that at this point, both the plaintiff and defendant are being given the opportunity before the matter is submitted to the jury to read their objections to any of the instructions into the record. Here are the instructions and you notify me when you get through.

'MR. JONES: Let the record reflect that the court is not in attendance at the time of reading the objections to the instructions into the record as required by the Supreme Court.'

During the judge's absence, counsel for each party dictated a great number of objections as to instruction proposed for use by the court and to the refusal to give others submitted. The judge then reappeared and the record continues:

'THE COURT: Let the record reflect that the Court has afford (sic) to both attorneys the opportunity to read their objections to the instructions into the record, that Mr. Jones requested that the Court be present during this period of time. The Court has already ruled on the Instructions, either allowed them or disallowed them, and the Court does not feel that it was necessary to be present during the period of time that the objections to the Instructions were being read by the attorneys.'

Affording counsel reasonable opportunity to object or tender instructions is not a mere ceremonial matter. It should be a cerebral undertaking on the part of the court.

In this case, the record indicates the copies of the proposed instructions of the court were handed to counsel and then the judge departed. Counsel were left to state, ceremonially and futilely, their objections to the proposed instructions to the court reporter.

Prior to the adoption of the Uniform Jury Instructions and the amendments to Rule 51 which accompanied them, the method of settling jury instructions and the manner of record the process varied from judge to judge. This variety was sought to be ended and some uniformity obtained by the adoption of the amended rule which is cited above. Apparently, old habits are not easily changed by rules. Hopefully, they will be changed by this opinion.

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