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Fowler-Propst v. Dattilo3/22/1991
Hartz, Judge. [111 NM Page 573] The district court ruled that newly discovered evidence required setting aside a judgment in favor of plaintiffs. Plaintiffs contend that the district court erred because the new evidence concerned an event that did not occur until after trial. We reverse. A new trial should not be granted solely on the ground that a post-trial event undercuts a prediction which formed the basis for the assessment of damages.
Plaintiffs sued defendant Dattilo for misrepresentation and professional negligence relating to the sale of a house that turned out to have an inadequate water well. On July 11, 1989, the jury returned a verdict in favor of plaintiffs, finding that the house was worth $69,560.02 less than it would have been worth with a proper well. Judgment was entered on the verdict on July 26. The following month plaintiffs put the house on the market. They sold it on October 4 for a price greater than what they had paid for it and much greater than the value estimated by their witnesses at trial. On October 20 Dattilo filed a motion pursuant to SCRA 1986, 1-060(B)(2), requesting that the judgment be set aside on the ground that the sale demonstrated that plaintiffs had suffered no damage. The district court granted a new trial, ruling that "after-occurring events which shed light on a condition which was at issue at the trial" constitute newly discovered evidence.
Rule 1-060(B) sets forth the grounds upon which a final judgment may be set aside by the district court. The pertinent portion of the rule states:
On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order or proceeding for the following reasons:
(1) mistake, inadvertence, surprise or excusable neglect;
(2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 1-059 [governing motions for new trial];
(3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party;
(4) the judgment is void;
(5) the judgment has been satisfied, released or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or
(6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2) and (3) not more than one-year after the judgment, order or proceeding was entered or taken.
B(2), which concerns newly discovered evidence, is the provision cited both in Dattilo's motion to set aside the judgment and in the district court's order. No other provision applies in this case. On appeal Dattilo asserts for the first time that her motion "gives rise to an inference of fraud by the plaintiffs," apparently attempting to rely on B(3) as authority for the district court's order. Her district court motion, however, included no allegation of fraud. BEcause Dattilo did not plead or prove fraud, B(3) does not apply. Cf. SCRA 1986, 1-009(B) (must plead fraud with particularity); ) (must plead fraud with particularity in independent proceeding to reopen judgment); ) (to prevail under Federal Rule of Civil Procedure 60(b)(3) there must be clear and convincing evidence of fraud), cert. denied, 365 U.S. 818 (1961). In her appellate brief Dattilo also explicitly contends that she can rely on B(6). We reject that contention as
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