1 This memorandum opinion was not selected for publication in the New Mexico Reports. Please

2 see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum opinions. 

3 Please also note that this electronic memorandum opinion may contain computer-generated

4 errors or other deviations from the official paper version filed by the Court of Appeals and does

5 not include the filing date. 

6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO

7 TAMMY GONZALES, 

8 Plaintiff-Appellant/Cross-Appellee, 

9 v. NO. 27,896

10 PAUL LIVINGSTON, 

11 Defendant-Appellee/Cross-Appellant.

12 APPEAL FROM THE DISTRICT COURT OF GUADALUPE COUNTY

13 Abigail Aragon, District Judge

14 Law Offices of Daymon B. Ely

15 Daymon B. Ely

16 Albuquerque, NM

17 Border Law Office, P.A.

18 Dean Border

19 Albuquerque, NM

20 for Appellant

21 Paul Livingston

22 Placitas, NM

23 Pro Se Appellee

24 MEMORANDUM OPINION

25 BUSTAMANTE, Judge.
2

1 This case arises from a malpractice suit brought by Plaintiff, alleging Defendant

2 was negligent in his representation of Plaintiff by failing to timely file her appeal

3 from a decision of the Human Rights Commission prior to the expiration of the

4 relevant statute of limitations. The district court found in Plaintiff’s favor, awarding

5 her $54,837 in damages. Defendant appeals, arguing insufficient evidence supports

6 both the verdict and the award, and that the district court made several evidentiary

7 mistakes. Unpersuaded by Defendant’s arguments, we affirm the district court.

8 I. FACTS

9 Plaintiff was employed as the fire and safety sergeant for Wackenhut Detention

10 Facility (Wackenhut) from 1998 until 2000. Wackenhut hired Plaintiff because of her

11 previous experience with the fire department. She was apparently assured her lack of

12 experience with prisoners would ensure she would not be required to “work the line”

13 as a corrections officer. This distinction was important to her.

14 For some time, Plaintiff, working under Warden Eloy Mondragon, received

15 good performance reviews. A riot occurred at Wackenhut in August 1999. After the

16 riot, Warden Mondragon was replaced by Warden Bravo. Sometime after the change

17 in warden, Plaintiff began to observe changes in behavior toward her that she felt were

18 discriminatory. For example, Plaintiff received a written reprimand for an incident

19 in which a male driver backed into and damaged a sally port. Even though Plaintiff
3

1 was the passenger rather than the driver, the male driver apparently received no formal

2 reprimand. Plaintiff also testified she was formally reprimanded for leaving early

3 after the conclusion of a seminar; her male counterparts received no similar reprimand

4 despite having left at the same time as Plaintiff. Moreover, Plaintiff was apparently

5 demoted for her performance and originally replaced by an uncertified male worker;

6 she was brought back after one week because of the lack of the new employee’s

7 certifications. Sometime thereafter, Plaintiff was again demoted and was told she

8 would be required to work on the line. Plaintiff resigned rather than work on the line,

9 claiming she had received threats which had made her fear for her life.

10 Plaintiff filed a complaint with the New Mexico Human Rights Commission

11 (HRC), alleging gender discrimination in violation of NMSA 1978, Section 28-1-7(A)

12 (2001). She received an initial finding of probable cause and her claim proceeded to

13 hearing. After losing the hearing in front of the HRC, Plaintiff was entitled to a de

14 novo appeal in district court, by filing a complaint. The statute of limitations for her

15 appeal ran April 8, 2002. 

16 On April 8, 2002, Defendant attempted to file the complaint/appeal by

17 facsimile, without filing fee, in Santa Rosa, New Mexico, just before closing. The

18 clerk refused to file the complaint without the filing fee, and the complaint was not

19 actually filed until April 10, 2002, when the fee was submitted. The district court
4

1 dismissed the complaint because it was filed outside of the statute of limitations.

2 Plaintiff filed this malpractice action against Defendant in 2004, alleging legal

3 negligence. 

4 After a bench trial, the district court specifically found Defendant was negligent

5 in his representation of Plaintiff, Defendant’s conduct fell below the requisite standard

6 of care, and Plaintiff had a greater than even chance of prevailing in the lawsuit

7 against Wackenhut and its employees. The district court found in favor of Plaintiff,

8 awarding her $54,837 for lost wages, benefits, and retirement, but denying her

9 requests for attorney’s fees and damages for emotional distress. Defendant appeals

10 both the verdict and the damages award. 

11 II. SUBSTANTIAL EVIDENCE SUPPORTS THE DISTRICT 

12 COURT’S VERDICT

13 Defendant asserts insufficient evidence supports the district court’s decision.

14 Defendant argues Plaintiff failed to prove he acted negligently, failed to support her

15 contention that she had been constructively discharged, failed to make a prima facie

16 case for gender discrimination, and failed to prove adequate job performance, thus

17 failing to prove she had a reasonable chance of prevailing on the underlying appeal.

18 A. Standard of Review

19 In reviewing a sufficiency of the evidence claim, we consider whether

20 substantial evidence supports the district court’s decision. “Substantial evidence is
5

1 such relevant evidence that a reasonable mind would find adequate to support a

2 conclusion.” Landavazo v. Sanchez, 111 N.M. 137, 138, 802 P.2d 1283, 1284 (1990).

3 We view the evidence in the light most favorable to the prevailing party and disregard

4 evidence and inferences to the contrary. Weidler v. Big J Enters., Inc., 1998-NMCA5 021, ¶ 30, 124 N.M. 591, 953 P.2d 1089 (filed 1997). Our concern is not whether

6 substantial evidence exists to support the opposite result, but rather whether

7 substantial evidence supports the result reached. Las Cruces Prof’l Fire Fighters v.

8 City of Las Cruces, 1997-NMCA-044, ¶ 12, 123 N.M. 329, 940 P.2d 177 (filed 1996).

9 “Additionally we will not reweigh the evidence nor substitute our judgment for

10 that of the fact finder.” Id. Where there is conflict in the testimony, we therefore

11 defer to the trier of fact. Buckingham v. Ryan, 1998-NMCA-012, ¶ 10, 124 N.M. 498,

12 953 P.2d 33 (filed 1997). Finally, we also presume the district court is correct. The

13 burden is on the appellant to clearly demonstrate that the district court erred.

14 Farmers, Inc. v. Dal Mach. & Fabricating, Inc., 111 N.M. 6, 8, 800 P.2d 1063, 1065

15 (1990). 

16 B. Substantial Evidence Supports the District Court’s Finding 

17 Defendant’s Actions Were Negligent and the Proximate Cause of 

18 a Loss to Plaintiff

19 For a malpractice claim, a plaintiff must prove: (1) she employed the defendant

20 attorney, (2) her attorney neglected a reasonable duty, and (3) the negligence resulted
6

1 in and was the proximate cause of loss to the plaintiff. Hyden v. Law Firm of

2 McCormick, Forbes, Caraway & Tabor, 115 N.M. 159, 162-63, 848 P.2d 1086, 1089-

3 90 (Ct. App. 1993). Defendant disputes all three elements on appeal. Defendant

4 asserts he was not employed as Plaintiff’s attorney, and that he fulfilled any duty he

5 had by faxing the complaint before the expiration of the statute of limitations.

6 Defendant further asserts there was insufficient evidence his actions were the

7 proximate cause of any loss to Plaintiff. 

8 First, Defendant argues, without any citation to legal authority or supporting

9 documentation, he was not representing Plaintiff at the time the statute of limitation

10 ran on the HRC appeal. He claims his representation of Plaintiff was always intended

11 to be limited to the HRC hearing and that he communicated this limitation to Plaintiff.

12 He also asserts that, even assuming he had a duty to Plaintiff, his facsimile filing of

13 the complaint was enough to discharge his duties because the Guadalupe County

14 Clerk should have accepted the facsimile complaint for filing. We disagree and affirm

15 the district court. 

16 The question of whether Defendant represented Plaintiff at the time the HRC

17 appeal was to be filed is a question of fact for the fact finder, in this case the district

18 court. Here, the district court made detailed findings of fact and conclusions of law.

19 Those findings indicate the district court determined a legal relationship continued to
7

1 exist between Plaintiff and Defendant at the time Defendant untimely filed the appeal;

2 we see no reason to disagree. See Herrera v. Roman Catholic Church, 112 N.M. 717,

3 721, 819 P.2d 264, 268 (Ct. App. 1991) (“Unless clearly erroneous or deficient,

4 findings of the trial court will be construed so as to uphold a judgment rather than to

5 reverse it.”). 

6 The sole evidence of the termination of the legal relationship Defendant

7 apparently introduced was Defendant’s testimony. Defendant apparently did not

8 provide any written evidence the relationship had been terminated nor did he provide

9 any evidence he had complied with the notice requirements found in the Rules of

10 Professional Responsibility. See, e.g., Rule 16-116(D) NMRA. 

11 Plaintiff’s testimony contradicted Defendant’s; the question of representation

12 was therefore a matter of whose testimony was more credible. Plaintiff stated she had

13 hired Defendant as her attorney and that she had little or no contact with Defendant

14 after her hearing before the HRC until she received a call from him requesting she

15 take a filing fee to the district court. Moreover, Defendant attempted to file the

16 complaint, which belies his suggestion he was under the impression he had no duty

17 to Plaintiff. 

18 The district court apparently found Plaintiff more credible than Defendant. As

19 previously stated, “when there is a conflict in the testimony, we defer to the trier of
8

1 fact.” Buckingham, 1998-NMCA-012, ¶ 10. We therefore accept the district court’s

2 determination that a legal relationship existed between Plaintiff and Defendant. 

3 Further, we decline to accept Defendant’s contention his facsimile filing of the

4 complaint, minutes before closing, on the last day prior to the running of the statute

5 of limitations, without filing fee, was sufficient to discharge any duty he may have had

6 toward Plaintiff. Defendant suggests the problem lies with the clerk because she

7 improperly rejected the complaint contrary to Rule 1-005(E), (F) NMRA (2006). See

8 also, Ennis v. Kmart Corp., 2001-NMCA-068, ¶¶ 6-10, 131 N.M. 32, 33 P.3d 32

9 (holding court clerk lacks discretion to refuse filing because of technical violations).

10 Here, however, the clerk did not refuse to file the complaint because of a “technical

11 violation,” but rather because she was following statutory requirements. 

12 Plaintiff’s HRC appeal was subject to the guidelines found in Rule 1-076(B)

13 NMRA, which governs de novo appeals to the district court and states: “An appeal

14 from the Human Rights Commission may be taken by filing a notice of appeal in the

15 form of a complaint in the district court in the manner provided by these rules for the

16 filing of a civil action in the district court.” That same rule states that the clerk shall

17 docket the appeal upon filing of the notice and the filing fee. Rule 1-076(H).

18 Additionally, the rules for filing civil actions state that, with limited exceptions, “a

19 filing fee shall be collected in civil matters in the amount prescribed by law for the
9

1 docketing of any cause, whether original or reopened or by appeal or transfer from a

2 court of limited jurisdiction.” Rule 1-099 (A) NMRA. Finally, Rule 1-005.1(D) also

3 only permits facsimile filing of documents in cases where a fee is not required. 

4 Clearly, the rules required Defendant to file the complaint in person,

5 accompanied by a filing fee. Defendant’s error, rather than the clerk’s, led to

6 Plaintiff’s complaint being dismissed. This is buttressed by the testimony of

7 Plaintiff’s expert, Diane Garrity (Garrity) who testified Defendant’s actions were

8 below the required standard of care relevant to an attorney and his client. Andrews v.

9 Saylor, 2003-NMCA-132, ¶ 16, 134 N.M. 545, 80 P.3d 482 (permitting expert

10 testimony to assist the fact finder in resolving the hypothetical case and to determine

11 whether a lawyer violated the standard of care); Rodriguez v. Horton, 95 N.M. 356,

12 359, 622 P.2d 261, 264 (Ct. App. 1980) (stating that the testimony of another attorney

13 to the applicable standards is usually necessary in legal malpractice cases). We

14 therefore affirm the district court’s finding that Defendant’s negligent conduct directly

15 caused the dismissal of Plaintiff’s case against Wackenhut. 

16 Turning next to the issue of proximate cause, in legal malpractice actions

17 involving a failure to appeal, proximate cause “ultimately reduces to a prediction as

18 to what the outcome of a hypothetical appeal would have been.” Andrews,

19 2003-NMCA-132, ¶¶ 1, 15. The success of the hypothetical appeal is a question of
10

1 fact for the fact finder. Id. ¶ 16. The party bearing the burden of proof need only

2 persuade the fact finder that “the likelihood of a favorable outcome in the hypothetical

3 appeal was greater than even.” Id. ¶ 15. 

4 In Plaintiff’s case, because her underlying case was based on gender

5 discrimination, she was required to demonstrate she had a greater than even chance

6 of proving, by either indirect or direct evidence, Wackenhut intentionally

7 discriminated against her on the basis of her sex. See, e.g., Sonntag v. Shaw, 2001-

8 NMSC-015, ¶ 11, 130 N.M. 238, 22 P.3d 1188 (explaining that, under Section 28-1-

9 7(A), a plaintiff must prove intentional discrimination). 

10 Defendant asserts Plaintiff failed to make her case on essentially two grounds,

11 negating the required element of proximate cause. First, Defendant argues there was

12 a lack of evidence proving Plaintiff was constructively discharged. Constructive

13 discharge permits an employee to recast a resignation as a de facto firing, depending

14 on the circumstances surrounding the employment relationship and the employee's

15 departure. Because Plaintiff resigned and was not terminated, the parties agree she

16 would be required to prove constructive discharge as part of establishing wrongful

17 termination. See Gormley v. Coca-Cola Enters., 2005-NMSC-003, ¶ 9, 137 N.M. 192,

18 109 P.3d 280 (explaining the concept of constructive discharge). Plaintiff was

19 therefore required to demonstrate her employer made working conditions intolerable,
11

1 and that when viewed objectively, a reasonable person would be compelled to resign.

2 Id. ¶ 10.

3 Defendant argues Plaintiff improperly failed to permit her employer an

4 opportunity to “work out a problem” because she had predetermined she would resign.

5 He further argues Plaintiff’s alleged fear was entirely subjective, rather than objective,

6 because other female employees worked on the line. However, our review of the

7 record indicates Plaintiff testified to a specific reason for her fear; she was told on

8 “numerous occasions” that a female officer would be killed and that she, specifically,

9 had been warned she was the next target. Her testimony indicates she resigned

10 because she feared for her life. Plaintiff’s employment law expert, Garrity, also

11 testified that, based on her experience, a review of a deposition of Plaintiff’s prior

12 supervisor, and Plaintiff’s testimony, she thought Plaintiff’s fears were sincere and

13 reasonable, given the threats and recent riot. See Andrews, 2003-NMCA-132, ¶ 16

14 (also permitting expert testimony to assist the fact finder in resolving the hypothetical

15 case).

16 While it is true the HRC came to a different conclusion regarding constructive

17 discharge, the district court clearly gave more credibility to the testimony of Plaintiff

18 and Garrity than had the HRC. This may have been at least partly because of

19 Defendant’s lack of rebuttal witnesses at trial. Regardless, the district court was not
12

1 bound by the HRC findings in this case, and, as previously stated, we do not reweigh

2 issues of credibility on appeal. Id. ¶ 15 (stating that in cases of legal malpractice

3 involving a failure to appeal, the fact finder’s answer to the question of who would

4 likely prevail does not change the result in the earlier lawsuit and does not establish

5 precedent for future lawsuits.) We hold sufficient evidence supports Plaintiff’s

6 constructive discharge. 

7 Second, Defendant asserts Plaintiff failed to establish a prima facie case of

8 gender discrimination and that the clear weight of the evidence establishes it was

9 instead incompetence and misconduct that led to Plaintiff’s demotion and subsequent

10 resignation, rather than any discrimination. Defendant again cites to the HRC’s

11 findings of fact, the non-binding nature of which we have already addressed. He also

12 claims Plaintiff failed to demonstrate she was treated less favorably than male

13 employees in similar positions. However, this issue again goes to credibility. As

14 Plaintiff points out, she testified to at least three instances where she was treated less

15 favorably than her male counterparts: (1) the sally port incident, (2) the seminar

16 incident, and (3) her original demotion and replacement by a non-certified male

17 worker. Garrity testified her review of depositions and the record indicated that

18 Plaintiff had been doing a good job, that she followed instructions, that she did not

19 call in sick, that she followed through, that she got along well with the other staff, and
13

1 that she was well qualified for her position. Further, both Plaintiff and Garrity

2 testified Wackenhut failed to follow their own disciplinary procedures, which stated

3 Plaintiff should have been given verbal warnings before she was issued a written

4 reprimand. 

5 Defendant asserts some of Plaintiff’s testimony suggests Plaintiff’s verbal

6 reprimands were for incompetence or because of her unique position, rather than

7 because of her gender. The district court clearly disagreed with this characterization

8 of Plaintiff’s testimony, instead viewing the actions as discriminatory in nature. As

9 we have previously explained, the strength of a plaintiff’s case is factual in a legal

10 malpractice case and we will not reweigh the evidence. Id. ¶ 16.

11 As previously discussed, the district court entered detailed findings of fact and

12 conclusions of law sufficient to support the verdict in favor of Plaintiff. Specifically,

13 the district court found: (1) Plaintiff had hired Defendant to represent her, (2)

14 Defendant had acted negligently in that representation, (3) Defendant’s negligence

15 caused the dismissal of Plaintiff’s lawsuit, and (4) Plaintiff had a greater than even

16 chance of prevailing in the lawsuit against Wackenhut and its employees. Based on

17 the record, findings and briefs, we see no reason to disturb these findings and hold

18 substantial evidence exists to support the verdict. 
14

1 C. Substantial Evidence Supports the District Court’s Award of Damages

2 “We will uphold a [district] court’s [award of damages] if . . . supported by

3 substantial evidence.” Chavarria v. Fleetwood Retail Corp., 2006-NMSC-046, ¶ 12,

4 140 N.M. 478, 143 P.3d 717. While we agree with Defendant that damage awards

5 must be more than merely speculative, we also note “[p]recise mathematical

6 computation is not required.” Ledbetter v. Webb, 103 N.M. 597, 604, 711 P.2d 874,

7 881 (1985). Reasonable certainty is enough and ordinarily an award of damages will

8 be upheld unless the amount awarded is “so grossly out of proportion to the injury

9 received as to shock the conscience.” Martinez v. Ponderosa Products, Inc., 108

10 N.M. 385, 386, 772 P.2d 1308, 1309 (Ct. App. 1988). 

11 Here, contrary to Defendant’s assertions of speculation, testimony supports the

12 district court award. Both Plaintiff and Plaintiff’s expert, Garrity, testified as to

13 Plaintiff’s damages. Specifically, Plaintiff testified as to her annual income and that

14 her tax returns were indicative of said salary. She further testified she had been

15 unable, despite numerous attempts, to find comparable employment. Garrity testified

16 how employment attorneys calculate damages including lost wages, emotional distress

17 and attorney’s fees. The testimony further indicated Plaintiff’s lost wage claim alone

18 was worth $54, 837 and that Garrity’s calculations were consistent with how both she

19 and other employment lawyers regularly calculate lost wages. 
15

1 Defendant disputes this testimony, but this, again, is an issue of credibility left

2 to the district judge. Moreover, we are not persuaded that Plaintiff’s testimony is per

3 se speculative simply because her tax returns were prepared by a tax service. The

4 district judge properly exercised her discretion, weighing the testimony and

5 determining Plaintiff had sufficiently proven losses in wages, benefits, and retirement,

6 but that she had failed to prove damages for emotional distress or attorney’s fees. We

7 therefore find sufficient evidence supports the district court’s decision.

8 III. THE DISTRICT COURT DID NOT ABUSE ITS DISCRETION 

9 BY PERMITTING GARRITY TO TESTIFY ABOUT 

10 FORMER DEPUTY WARDEN SPRUNK’S DEPOSITION 

11 TESTIMONY OR BY REFUSING TO RE-OPEN TESTIMONY 

12 Defendant asserts the district court erred in two evidentiary decisions. First,

13 Defendant argues the district court improperly permitted Garrity to testify concerning

14 former Deputy Warden Sprunk’s (Sprunk) deposition and that the court improperly

15 relied on said testimony. Second, Defendant argues the court improperly denied its

16 request to re-open testimony to permit Defendant to call Plaintiff on direct

17 examination. Unpersuaded by these arguments, we affirm the district court on both

18 issues. 
16

1 A. Standard of Review

2 The admission or exclusion of evidence is reviewed for abuse of discretion.

3 Coates v. Wal-Mart Stores, Inc., 1999-NMSC-013, ¶ 36, 127 N.M. 47, 976 P.2d 999.

4 When reasons both supporting and detracting from a decision exist, there is no abuse

5 of discretion. Talley v. Talley, 115 N.M. 89, 92, 847 P.2d 323, 326 (Ct. App. 1993).

6 We assume the district court is correct and the burden is therefore on the appellant to

7 clearly demonstrate the district court's error. Akins v. United Steelworkers of America,

8 AFL-CIO, CLC, Local 187, 2009-NMCA-051, ¶ 40, 146 N.M. 237, 208 P.3d 457,

9 cert. granted, 2009-NMCERT-005, N.M. , P.3d (No. 31,637, May 13,

10 2009). Moreover, “[i]n a non-jury case, the trial court is presumed to have

11 disregarded incompetent evidence, absent a showing that the court was influenced

12 thereby.” In re I.N.M., 105 N.M. 664, 669, 735 P.2d 1170, 1175 (Ct. App. 1987). We

13 may affirm a district court’s ruling for any reason so long as reliance on the new

14 reason would not be unfair to the appellant. Meiboom v. Watson, 2000-NMSC-004,

15 ¶ 20, 128 N.M. 536, 994 P.2d 1154.

16 B. Rule 11-703 NMRA Permits an Expert to Testify to Facts Relied 

17 on in Formulating Her Opinion, Including Otherwise 

18 Inadmissable Evidence 

19 Defendant argues the district court erroneously relied on Sprunk’s out-of-court

20 deposition when formulating its findings. He argues that, while the court may have
17

1 been entitled to “hear” those portions of the deposition relied on by Garrity in forming

2 her expert opinion, it was improper for the deposition material to be “transmuted” into

3 findings of fact. 

4 Defendant relies on Rule 1-032 NMRA for his arguments. We, however, note

5 that it is actually Rule 11-703 which governs this type of evidence. Rule 11-703

6 states:

7 The facts or data in the particular case upon which an expert bases an

8 opinion or inference may be those perceived by or made known to the

9 expert at or before the hearing. If of a type reasonably relied upon by

10 experts in the particular field in forming opinions or inferences upon the

11 subject, the facts or data need not be admissible in evidence in order for

12 the opinion or inference to be admitted. Facts or data that are otherwise

13 inadmissible shall not be disclosed to the jury by the proponent of the

14 opinion or inference unless the court determines that their probative

15 value in assisting the jury to evaluate the expert's opinion substantially

16 outweighs their prejudicial effect. 

17 As discussed at trial, Garrity used the deposition testimony of Sprunk, who had

18 day-to-day dealings with Plaintiff and her job performance, in formulating her expert

19 opinion. Pursuant to Rule 11-703, she is permitted to testify to these facts. See also

20 Lopez v. City of Albuquerque, 118 N.M. 682, 684, 884 P.2d 838, 840 (Ct. App. 1994)

21 (permitting the admission of otherwise inadmissable evidence where said evidence is

22 introduced as the basis for an expert’s opinion). As previously discussed, the fact

23 finder is entitled to rely on such testimony in cases of legal malpractice. Moreover,

24 this case involves a bench trial. There was therefore obviously no requirement that
18

1 the district court engage in any formal balancing test between the probative value and

2 prejudicial effect of the deposition testimony. 

3 We also note that Defendant appears to have at least partially waived his right

4 to object to the introduction of Sprunk’s deposition. During Defendant’s cross5 examination of Plaintiff, Plaintiff’s counsel informed the district court and Defendant

6 that the questions being asked “open the door to Officer Sprunk’s investigation.”

7 Plaintiff’s counsel stated he would seek to “include Officer Sprunk’s deposition or

8 portions of that investigation.” Defendant responded “[t]hat’s understood.” Further,

9 even were we to find the district court erred in issuing findings based on Sprunk’s

10 deposition, Defendant has failed to demonstrate any prejudice. Even were we to find

11 specific findings improper, the district court was entitled to rely on Garrity’s

12 testimony and conclusions, including her review of Sprunk’s deposition. The result

13 would therefore have been the same. “On appeal, error will not be corrected if it will

14 not change the result.” In re Estate of Heeter, 113 N.M. 691, 695, 831 P.2d 990, 994

15 (Ct. App. 1992). Further, those findings were not necessary to the verdict and we

16 have previously held “erroneous findings of fact not necessary to support the

17 judgment of the court are not grounds for reversal.” Downs v. Garay, 106 N.M. 321,

18 323, 742 P.2d 533, 535 (Ct. App. 1987).
19

1 C. The District Court Did Not Abuse its Discretion by Refusing to 

2 Re-open Witness Testimony or Denying Defendant’s Motion 

3 for a New Trial 

4 The bench trial was held in 2007. Plaintiff presented three witnesses: former

5 Clerk Georgia Gomez, Plaintiff, and Garrity. Plaintiff rested and Defendant testified.

6 Directly after Defendant testified, the district court asked whether Defendant had any

7 other witnesses. Defendant’s counsel replied he did not, but thereafter Defendant

8 reminded counsel he wanted to call Plaintiff on direct. Defense counsel then

9 attempted to correct his error, but Plaintiff objected, claiming the other side had

10 already closed their case. The district court agreed, noting Defendant had ample time

11 to cross-examine Plaintiff, and directed the parties to proceed to closing arguments.

12 Defendant subsequently brought a motion to re-open testimony, but that motion was

13 denied. 

14 Defendant argues the district court’s decision and subsequent refusal were an

15 abuse of discretion, as cross-examination of a witness is limited to the subject matter

16 of the direct examination and Plaintiff testified before Plaintiff’s expert. Under the

17 specific circumstances of this case, we hold the district court’s actions were not an

18 abuse of discretion because Defendant had ample opportunity to examine Plaintiff and

19 Defendant has failed to show any prejudice. 
20

1 As Defendant states, Rule 11-611(B) NMRA limits cross-examination to the

2 “subject matter of the direct examination and matters affecting the credibility of the

3 witness.” Moreover, Defendant also correctly points out that Rule 1-040(C)(3)

4 NMRA permits the court to allow parties to introduce additional evidence after the

5 regular close of trial, and Rule 1-059(A) NMRA gives the court discretion to re-open

6 the judgment, take additional testimony, or amend its findings. 

7 We begin by noting the latter two rules do not require the court to do anything.

8 Instead, they simply permit the court to correct possible problems at its discretion.

9 Moreover, while we may agree it might have been preferable for the district court to

10 permit additional testimony, there is every indication Defendant had ample

11 opportunity to examine Plaintiff during the lengthy cross-examination. It appears

12 Plaintiff’s counsel did not try to limit Defendant’s cross-examination and that

13 Defendant’s cross-examination was lengthy. 

14 Defendant has also failed to demonstrate he has suffered any prejudice as a

15 result of the district court’s decision. Defendant has not suggested the court’s decision

16 resulted in a denial of his examining Plaintiff on any substantive topic, nor has he

17 provided this Court with any specific examples of relevant questions he would have

18 asked but for the district court’s denial of his request to re-open testimony. We

19 reiterate we do not consider errors that would not change the result. In re Estate of
21

1 Heeter, 113 N.M. at 695, 831 P.2d at 994. Given the particular facts in this case, we

2 affirm the district court’s decision. 

3 IV. CONCLUSION

4 We hold substantial evidence supports both the district court verdict and

5 damage award and that the district court did not abuse its discretion with regard to

6 either evidentiary issue. We therefore affirm the district court. 

7 IT IS SO ORDERED.

8 

9 MICHAEL D. BUSTAMANTE, Judge

10 WE CONCUR:

11 

12 MICHAEL E. VIGIL, Judge

13 

14 LINDA M. VANZI, Judge