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Lewis v. Samson9/14/1999
ration echoes the approach taken by Lujan without requiring the multiple factual investigations described by the Dissent. It is even unclear under Section 50 whether a plaintiff would have any responsibility to prove divisibility as such when there is no question of his or her own comparative negligence. According to Section 50, comment g., injuries are indivisible when "all legally culpable conduct of the plaintiff and every tortious act of the defendants and other relevant persons caused all the damages." We should note that Lujan addressed the issue in this context by essentially holding that, if the medical malpractice causes injury, that conduct and its consequences are separate from the original injury. See Restatement, section 7, cmt. m.
{62} Finally, the Dissent questions the viability of the indemnification principles addressed in paragraph 17 of Lujan. We merely point out that the Discussion in paragraph 17 was not necessary to Lujan's holding and is thus dicta. The potential for indemnification of the original tortfeasor in this case is nonexistent. It should not be used as a straw man argument against the applicability of Lujan to the facts in this appeal.
C. The Trial Court Afforded Plaintiff an Evidentiary Hearing on Its Motion for a Change of Venue, and Its Denial of the Motion Was Not an Abuse of Discretion
{63} Change of venue is governed by NMSA 1978, § 38-3-3 (1965), under which a party may move to change venue to a different county for sufficient cause stated in the affidavit of the party, his or her agent, or attorney. Upon motion of a party, "the court may require evidence in support thereof, and upon hearing thereon shall make findings and either grant or overrule said motion." NMSA 1978, § 38-3-5 (1929). Under this rule, if a party moves for a change of venue and submits an affidavit in support of the motion stating that a fair trial cannot be held on account of local prejudice, the court shall allow the movant to present evidence in support of this allegation and then determine the merits of such allegations. See Schultz v. Young, 37 N.M. 427, 430, 24 P.2d 276, 278 (1933). In Schultz, our Supreme Court reversed the trial court's decision to refuse additional evidence upon being presented with a mere averment by counsel's affidavit. See id. at 430-31, 24 P.2d at 278.
{64} Denial of a motion to change venue is reviewed for an abuse of discretion. See State v. Chamberlain, 112 N.M. 723, 726, 819 P.2d 673, 676 (1991). The trial court must receive evidence upon which it can make findings of fact. See McCauley v. Ray, 80 N.M. 171, 175, 453 P.2d 192, 196 (1968). If the record lacks substantial evidence, the trial court has abused its discretion. See id. at 176-77, 453 P.2d at 197-98.
{65} In support of her motion for a change of venue, Plaintiff submitted her counsel's affidavit and the affidavit of a jury consultant. Both affidavits contained numerous averments of fact regarding the previous conduct of the jury during voir dire and of the jury pool in general at the time of the first trial attempt in July of 1997. The court reviewed these affidavits but refused Plaintiff's request to present live testimony in support of her motion. Plaintiff argues that, under Schultz, these affidavits were merely procedural requirements for an evidentiary hearing and not evidence by themselves. Plaintiff thus contends that the trial court should have allowed her to present live testimony in addition to the affidavits.
{66} We disagree with Plaintiff's reading of Schultz. The Court in Schultz considered an affidavit by the movants stating their belief that they would not be able to secure a fair trial in the county where the cau
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