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Lewis v. Samson9/14/1999
se was pending. See Schultz, 37 N.M. at 428, 24 P.2d at 277. Certainly, the court needs to hear sufficient evidence upon which to base a ruling. See McCauley, 80 N.M. at 175, 453 P.2d at 196. It did so in this case by considering the affidavits of counsel and the jury consultant. Had Plaintiff only submitted an affidavit of her counsel containing merely a general averment that Plaintiff could not receive a fair trial in Quay County, as occurred in Schultz, the trial court may have been required to allow additional evidence in support of or in opposition to the motion, which presumably could have consisted of the jury consultant's affidavit as well as other evidence. See, e.g., V.P. Clarence Co. v. Colgate, 115 N.M. 471, 472, 853 P.2d 722, 723 (1993) (counsel's arguments are not evidence). We believe, however, that the affidavits of either Plaintiff's counsel or the jury consultant constituted sufficient evidence on which to base a ruling. Counsel's factual averments in her affidavit are evidence, not mere arguments. Similarly, the jury consultant's affidavit detailed the consultant's sworn personal observations of the various jury members and thus also constituted evidence on which the trial court could base a ruling. Dr. Samson's counsel also submitted his affidavit as evidence opposing the motion.
{67} We are thus presented with the narrower question of whether the trial court abused its discretion by limiting evidence to these three affidavits and not considering "live testimony." Generally, a trial court has the discretion to exercise reasonable control over the presentation of cumulative or repetitious evidence in order to prevent needless delay and inconvenience and to expedite matters. See Rule 11-611(A) NMRA 1999; see generally Pierce v. Albertson's Inc., 1996-NMSC-009, 15, 121 N.M. 369, 911 P.2d 877. A review of the two affidavits offered by Plaintiff in support of her motion indicates to us that both of them appeared to comprise the entire factual basis for Plaintiff's motion, that each affidavit included all relevant facts known to each affiant, and that additional testimony would be redundant. The trial court was also free to impute greater credibility to the affidavit of Dr. Samson's counsel.
{68} We therefore conclude that the trial court did not abuse its discretion in limiting the evidence to be considered by it to what was contained in the affidavits submitted by the parties. Our Disposition of this issue does not preclude either party from requesting a change of venue on remand for a new trial.
III. CONCLUSION
{69} We hold that the trial court abused its discretion in denying Plaintiff's motion to reopen discovery for the purpose of adding Ms. Griner and Dr. Hanosh as witnesses. For this reason, we reverse the trial court's judgment and remand for a new trial and further proceedings consistent with this opinion. We also hold that the trial court should have granted Plaintiff's motion to exclude evidence of the assailant's comparative fault and negligence per se from consideration by the jury and submitted appropriate instructions to the jury on Plaintiff's successive-tortfeasor-liability theory. We conclude, however, that the trial court did not abuse its discretion in denying Plaintiff's change of venue motion. Because of our Disposition, we need not address Plaintiff's remaining issue and arguments. Plaintiff is awarded costs on appeal.
{70} IT IS SO ORDERED.
RUDY S. APODACA, Judge
WE CONCUR:
MICHAEL D. BUSTAMANTE, Judge
HARRIS L HARTZ, Judge (concurring in part, Dissenting in part)
Hartz, Judge (concurring in part, Dissenting in part).
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