Haberer v. Radio Shack

GILBERTSON, Justice

(on reassignment).

[¶ 1] Carney and Merle Haberer (Haberer) appeal a directed verdict in favor of Brick’s TV & Appliance and a jury verdict in favor of Radio Shack. We affirm.

FACTS & PROCEDURE

[¶ 2] Haberer owned the “Showcase,” a bar in Aberdeen, South Dakota. In 1993, Haber-er contacted James Schaunaman to install and upgrade a sound system in the bar, using equipment Haberer already owned. Haber-er first met Schaunaman as a tenant in the apartment building that Haberer managed. Schaunaman had previously installed smoke detectors in the apartment building and repaired a television set for Haberer. At the time Haberer asked Schaunaman to perform the work at the Showcase, Schaunaman was the owner of Brick’s Video, a sole proprietorship having its office in the same building as Brick’s TV & Appliance (Brick’s TV), wMch was owned by Larry Brick. Brick’s Video provided repair service on VCR’s, video equipment, televisions, and audio equipment. Brick’s Video and Brick’s TV share the same address and telephone number.

[¶ 3] Schaunaman installed the sound system at the Showcase. On June 21, 1993, Schaunaman further installed a battery-operated mixer, the device which combines and distributes the signal between the audio source and the amplifiers. Following some problems with the mixer, Schaunaman suggested and installed a Radio Shack AC adapter between the mixer and a power strip. One and a half days later, there were more problems with the sound system. Schaunaman, believing the lead wires were malfunctioning, exchanged them at Radio Shack. He replaced the lead wires again two days later. On July 2, 1993, Schaunaman installed components in the system, including a “Y” adapter.

[¶ 4] On July 4,1993, at approximately 3:00 a.m., Kris Jensen, Haberer’s employee, was in the Showcase and smelled smoke. Jensen contacted the fire department, wMch was *608unable to contain the fire. The Showcase was completely destroyed.

[¶ 5] Haberer filed suit against Radio Shack and Brick’s TV on March 4,1994. He did not sue Sehaunaman, who was doing business as Brick’s Video. Haberer served interrogatories March 20,1995. On April 24, 1995, Radio Shack responded to Haberer’s interrogatory regarding expert witnesses by sending Haberer a list of expert witnesses which included E.P. Hamilton, III. Radio Shack stated these experts would testify regarding the source of the fire and that “Dr. Hamilton has concluded that neither the mixer nor the adapter sold by Radio Shack could have been the cause of the fire.” The answers indicated Radio Shack’s experts relied on physical evidence including the fire scene itself, the adapter removed from the scene, and undamaged mixers and adapters similar to those involved in the fire.

[¶ 6] At trial, lay witnesses and expert witnesses testified regarding the fire’s origin. Haberer’s witnesses testified the fire started in the stage area which held the sound system and then spread to the basement through a hole caused by the malfunctioning Radio Shack equipment. Radio Shack’s experts testified the fire started in the basement and that there were multiple points of origin.

[¶7] Prior to trial, the trial court had denied a motion for summary judgment made by Brick’s TV based on apparent or ostensible agency. At the close of Haberer’s evidence, however, the trial court on its own motion directed a verdict for Brick’s TV. The jury returned a verdict in favor of Radio Shack. Haberer appeals, seeking a reversal of the directed verdict and a new trial against both Brick’s TV and Radio Shack.

ANALYSIS & DECISION

[¶ 8] 1. Whether the trial court erred in granting a directed verdict to Brick’s TV?

[¶ 9] The agency issue presents a two-pronged question. The first prong is whether a question of fact exists regarding ostensible agency between Brick’s TV and Schau-naman. The second prong is whether a question of fact exists regarding reliance by Haberer upon that ostensible agency. The evidence of this case establishes there is a question of fact as to the existence of an agency relationship between Brick’s TV and Sehaunaman. There has been no showing, however, of reliance by Haberer in this regard. Thus, Haberer fails on this second prong.

[¶ 10] In reviewing a trial court’s decision to grant a directed verdict pursuant to SDCL 15-6-50(a), we will presume the determination of the trial court to be correct and will not seek reasons to reverse. Sabag v. Continental South Dakota, 374 N.W.2d 349, 355 (S.D.1985). Upon a motion for a directed verdict, the trial court must determine whether there is “substantial evidence” to allow Haberer as the plaintiff to continue with his cause of action. Haberer v. Rice, 511 N.W.2d 279, 284 (S.D.1994). Thus, for Haberer to establish “substantial evidence” upon the reliance issue, he must bring forth facts to show he either commenced or continued his business relationship with Schauna-man based on a reliance on Schaunaman’s ostensible agency with Brick’s TV. Such evidence is totally lacking from the record, including Haberer’s own testimony which supports a contrary conclusion. With no evi-dentiary dispute, reasonable minds could not differ and a directed verdict was appropriately granted. BankWest, Inc. v. Valentine, 451 N.W.2d 732, 734 (S.D.1990).

[¶ 11] The record reflects Haberer’s initial contact with Sehaunaman was through their acquaintance as tenants at the apartment complex Haberer managed. Haberer and Sehaunaman became friends and Haberer hired Sehaunaman to do some repair work for him personally on a television set and for the apartment complex installing smoke alarms. This work was done approximately six months prior to Haberer’s hiring Schau-naman to work on the sound equipment at the Showcase. Haberer testified when he needed the work done at the Showcase, “I thought of Mr. Sehaunaman and Sehaunaman and I are real good friends. I hope we still are, but we were real good friends. And he came down and I asked him, could you make, you know, a music system out of this?”

*609[¶ 12] SDCL 59-6-3 provides that “[a] principal is bound by acts of his agent under ostensible authority, to those persons only who have in good faith, and without negligence, incurred a liability or parted with value upon the faith thereof.” As long ago as 1929, this Court held that the third party's “knowledge of and reliance upon circumstances tending to show agency” was a prerequisite to the admission into evidence of those circumstances if the third party was claiming ostensible agency. McKean Auto Co. v. O’Marro, 54 S.D. 435, 439, 223 N.W. 354, 356 (1929); see also Karlen v. Butler Mfg. Co., 526 F.2d 1373, 1378 (8th Cir.1975) (applying South Dakota law). More recently, we stated “[t]he third person dealing with the agent, therefore, must show not only damages resulting from his reliance on the appearance of authority, but also reasonable diligence and prudence in ascertaining the fact of the agency and the nature and extent of the agent’s authority.” Dahl v. Sittner, 429 N.W.2d 458, 462 (S.D.1988) (citing 3 Am-Jur2d Agency §§ 80, 83 at 587, 592-93 (1986)).

[¶ 13] Haberer has offered no evidence that he relied on any “circumstances tending to show agency” between Schauna-man and Brick’s TV & Appliance when Ha-berer hired Schaunaman to do work on the sound equipment at the Showcase.1 Haberer freely admitted that he hired Schaunaman because Schaunaman was a good friend of his and did good work. On cross-examination by Brick’s TV, Haberer testified to the following:

Q: And you hired Jim Schaunaman because you knew him and you liked him; isn’t that correct?
A: Jim’s a fine man.
Q: And the work that he had done earlier for you was entirely satisfactory, wasn’t it?
A: Very much so.

[¶ 14] Haberer did not hire Schauna-man through Brick’s TV or because Haberer thought Schaunaman was a Brick’s TV employee, but rather because Schaunaman and he were friends from their prior associations at the apartment complex. This friendship, as the basis for Haberer’s ongoing use of Schaunaman’s services, continued through the date of the fire. The fact Haberer came to know that his friend Schaunaman may be an agent of Brick’s TV after Haberer had initially hired Schaunaman never affected their business relationship. Haberer continued to hire Schaunaman because they were friends, and because Schaunaman did good work. Haberer would have called Schauna-man to fix the electrical problem at the Showcase no matter where Schaunaman could be found. Thus, Haberer has failed to offer substantial evidence of any circumstances which would attach liability to Brick’s TV & Appliance. “Oratory and arguments of counsel, however eloquent, are not an eviden-tiary basis to avoid an unfavorable disposition of the case.” Cody v. Leapley, 476 N.W.2d 257, 265 (S.D.1991) (citing Estes v. Millea, 464 N.W.2d 616, 619 (S.D.1990)).

[¶ 15] 2. Whether the trial court erred in not limiting the testimony of expert witnesses for Radio Shack?

[¶ 16] Haberer claims Radio Shack’s expert, Hamilton, testified beyond the scope of the interrogatory responses and that Radio Shack should have supplemented its responses when it had more information regarding its expert.2

*610[TJrial courts have broad discretion concerning the admission of expert testimony. The trial court’s evidentiary rulings are presumed correct and will not be reversed unless there is a clear abuse of discretion. We have held that an abuse of discretion refers to a discretion exercised to an end or purpose not justified by, and clearly against, reason and evidence. SDCL 15-6-37 gives the trial judge broad latitude in penalizing the party who has failed to comply with discovery orders, however such latitude is not limitless.

Schrader v. Tjarks, 522 N.W.2d 205, 209 (S.D.1994) (internal citations and quotations omitted).

[¶ 17] Haberer claims Radio Shack should have supplemented its answers when it knew the basis of Hamilton’s testimony. SDCL 15 — 6—26(b) (4) (A)(i) provides that:

A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

SDCL 15-6-26(e)(l)(B) imposes a duty upon a party to supplement the above.

[¶ 18] Haberer claims Hamilton exceeded the scope of Radio Shack’s discovery answers when he expressed certain opinions, including the temperature to which the adapter was exposed during the fire, the Underwriters Laboratory standards and system of testing, the cause of the problems with the audio wires and “Y” connectors, and that the mixer and adapter were not defective. Haberer did not make this objection at trial. Objections must be made to the trial court in order to allow it to correct mistakes, and an objection not properly raised at trial cannot be reviewed by this Court on appeal. Kelley, 513 N.W.2d at 110; Anderson, 441 N.W.2d at 677.

[¶ 19] Haberer also claims Hamilton exceeded the scope of interrogatory responses when he testified to the basis of his opinion that the mixer and adapter did not cause the fire. Hamilton testified he personally performed testing, relied on prior testing results, examined technical and purchasing materials at the Tandy headquarters (Radio Shack’s parent company), and familiarized himself with the devices and their specifications. Haberer claims prejudice by not knowing the basis of Hamilton’s opinion. He claims he could not request copies of the manuals and test results in order to prepare his own expert. Haberer objected to Hamilton’s opinion and its basis, stating “the only opinion that this man can give in this ease is that which was disclosed, that neither the mixer nor the adapter sold by Radio Shack would have been the cause of the fire[.]” The trial court overruled the objection because there had been “broad disclosure” through the answers to the interrogatories. The trial court later denied a motion for a new trial on this issue.

[¶20] Prohibition of evidence offered by a party who has not complied with the discovery rules “ ‘is designed to compel production of evidence and to promote, rather than stifle, the truth finding process.’ ” Schrader, 522 N.W.2d at 210 (quoting Magbuhat v. Kovarik, 382 N.W.2d 43, 45 (S.D. 1986)). “Imposing a sanction such as the exclusion of the testimony should result when ‘failure to comply has been due to ... willfulness, bad faith, or ... [fault].’ ” Id. (quoting Chittenden & Eastman Co. v. Smith, 286 N.W.2d 314, 316 (S.D.1979)). “[D]rastie sanctions under Rule 37 are not authorized when ‘the failure to comply is the result of inability rather than willfulness or bad faith.’” Id.

[¶ 21] Haberer claims Radio Shack’s failure to comply with discovery constitutes willfulness. Haberer’s interrogatories were dated March 20, 1995. Radio Shack answered the interrogatories on April 24, 1995, just one week before trial began on May 1, 1995. Haberer claims it was likely Radio Shack knew Hamilton had traveled to Tandy headquarters and conducted testing to form his opinion at the time of the answers. Howev*611er, Hamilton’s testing was covered by Radio Shack’s answer. Haberer had notice, through the answers, that Hamilton would testify that the mixer and adapter could not have been the cause of the fire and would base at least part of his testimony on “undamaged mixers and adapters similar” to the items in the fire. It is logical that Hamilton would have examined and tested such equipment in order to draw his conclusions. It is also logical that Hamilton would have a basis for his opinion.

[¶ 22] The only information Radio Shack failed to disclose was that Hamilton made the trip to Tandy headquarters and made tests. “The severity of the sanction must be tempered with consideration of the equities. Less drastic alternatives should be employed before sanctions are imposed which hinder a party’s day in court and thus defeat the very objective of the litigation, namely to seek the truth from those who have knowledge of the facts.” Magbuhat, 382 N.W.2d at 45 (citations omitted). Haber-er essentially requested that all of Hamilton’s factual bases be withheld from the jury. Such drastic measures are not warranted by the situation.

[¶ 23] When presented with answers believed to be vague and unresponsive, Haber-er could have moved the trial court to order further discovery pursuant to SDCL 15-6-26(b)(4)(A)(ii) or could have moved for a continuance to further discover Hamilton’s opinion and its basis. Haberer did neither and the trial court chose to admit Hamilton’s testimony. Haberer did not show the trial court abused its discretion in admitting the testimony.

[¶ 24] We affirm.

[¶ 25] AMUNDSON and KONENKAMP, JJ., concur. [¶ 26] MILLER, C.J., and SABERS, J., concur in part and dissent in part.

. As mentioned previously, Haberer testified he first met Schaunaman at the apartment building where Haberer was the manager and Schauna-man, a tenant. Haberer further testified that, at that time, Schaunaman worked for Aberdeen TV & Appliance. Schaunaman and Haberer struck up a friendship. It was while Schaunaman was with Aberdeen TV & Appliance that Haberer asked Schaunaman to repair his television set. Haberer contacted Schaunaman about this job at the apartment complex and talked to him personally. Haberer also asked Schaunaman to do some repair work on a fire alarm system. Following Schaunaman’s employment with Aberdeen TV & Appliance, he managed a fried chicken franchise, and following that, he went to Brick’s Video. After Schaunaman could be contacted at Brick's Video, Haberer stated that the next time he needed help, Schaunaman was the first person who came to mind.

. Haberer also claims error in the admission of Rallis' testimony, but no objection was raised at the trial court. Objections must be made to the trial court in order to allow it to correct mistakes, and an objection not properly raised below *610cannot be reviewed by this Court on appeal. City of Sioux Falls v. Kelley, 513 N.W.2d 97, 110 (S.D.1994); Anderson v. Johnson, 441 N.W.2d 675, 677 (S.D. 1989).