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Claim that court should hear additional testimony is “exposed”



By Jeremy Ray

A construction company observed an exposed electrical line protruding out of the ground at one of its residential properties. The construction company notified an electrical company about the exposed electrical line. The construction and electrical companies each denied responsibility for the exposed electrical line and offered contrasting evidence at the trial as to the source of the exposure.

At trial, the electrical company introduced photographic evidence that its employee took when he went to the property to view the damage and assess what repair work was needed. The construction company claimed that it did not have any reason to, and did not, excavate on the property during the year leading up to the discovery of the exposed electrical line. The construction company claimed that it did not have any excavation equipment at the property when the electrical line became exposed. The construction company asserted that the electrical line became exposed because the electrical company dug a trench too shallow and repeated freezing and thawing caused the shallow line to surface. 

The court awarded the electrical company damages and fees. The construction company sought reversal of the judgment on the basis that the electrical company failed to prove its case or alternatively, requested the court to reopen the case to receive additional evidence. The court overruled the motion and the construction company appealed.

Sufficient evidence to support the finding
The construction company claimed there was no competent evidence that it excavated and/or caused any damage to the electrical company’s utility line. The construction company reiterated its factual arguments presented at trial in the appeal. The construction company argued that the facts presented during the trial established that no one saw the construction company or its agents excavate on the property, no one saw any excavation on the property, and there was no reason for the construction company to be excavating on the property during the relevant time period. The electrical company’s witness testified that, based upon his 10 years of experience, he believed the line was exposed by excavation. The electrical company offered into evidence photographs its witness took showing a pile of PVC conduit pipe at the base of the transformer and an excavator.

The appellate court recognized that the trial court was presented with conflicting evidence as to which party was the owner of the bobcat or skid-loader in the photograph, conflicting evidence as to which party was responsible for the excavation and damage to the line. The trial court was free to, and evidently did, find that the electrical company’s testimony was more credible than the construction company’s testimony. The appellate court deferred to the trial court’s factual findings as issue of witness credibility and the weight of the evidence was within the purview of the trial court. The appellate court did not reweigh the evidence.

The construction company seeks to clarify certain evidence
The construction company contended that the trial court erred in overruling its motion for a new trial because the additional proffered evidence was critically material to the merits of the construction company’s defense and would not unfairly prejudice the electrical company. The construction company sought to present additional testimony to refute or clarify certain evidence that was presented at trial and to “make a better record” on other issues. The construction company sought to introduce additional evidence that it did not own the PVC pipe piled up at the base of the transformer and the pipes were actually the same type the electrical company would use to fix a broken line. The construction company further sought to introduce additional testimony to establish that the electric service was never interrupted at the property. The construction company believed that this evidence would establish that it had no motive for reporting the exposed line. 

The construction company argued that when there is no inconvenience to the court, nor unfair advantage to the offering party, it is an abuse of discretion for the court to refuse to reopen the case for additional evidence that might substantially affect the merits of the case. The court found that the construction company had ample opportunity to present the additional evidence during trial that it sought to present in the appeal. The appellate court noted that courts cannot reopen cases merely because a party has a change of heart regarding the importance of evidence it chose not to introduce when it first had the opportunity to do so.

The construction company did not claim the additional evidence was “newly discovered evidence.” The construction company merely sought to present additional evidence that could have been presented during trial. The appellate court affirmed the trial court’s rejection of the construction company’s request to introduce additional evidence. The trial court’s refusal to consider this evidence was not an abuse of discretion. The appellate court affirmed the trial court’s judgment of liability and denied the construction company’s motion to appeal.




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