dissenting.
I dissent.
I cannot concur in the majority opinion because I believe that the trial court erred, first, in submitting to the jury the defense of economic duress and, second, in submitting to the jury polygraph evidence inadmissible under NMSA 1978, Evid.Rule 707 (Repl.Pamp.1983) (now codified at SCRA 1986,11-707). Because the jury may have based its verdict upon a legal theory that should not have been before it and also received polygraph evidence that should have been excluded, I would reverse the judgment in favor of Bowers and Wood on NCR’s personal guaranty counterclaim and would remand for a new trial on that counterclaim alone.
I. Economic Duress
This Court long has recognized that a party coerced into a transaction by the wrongful act of another party may void that transaction. See Pecos Constr. Co. v. Mortgage Investment Co., 80 N.M. 680, 682-83, 459 P.2d 842, 844-45 (1969); see also Cadwell v. Higginbotham, 20 N.M. 482, 508-11, 151 P. 315, 322-23 (1915). The doctrine of economic compulsion or economic duress protects the party in a weaker bargaining position from the unreasonable exercise of economic power or advantage by the party in a stronger position by imposing upon the latter a duty to offer the weaker party a reasonable choice of alternatives. See Terrel v. Duke City Lumber Co., 86 N.M. 405, 422-23, 524 P.2d 1021, 1038-39 (Ct.App.1974), aff'd in part, rev’d in part, 88 N.M. 299, 540 P.2d 229 (1975). Economic duress therefore cannot be established if a reasonable choice of alternatives was available to the weaker party. See id., 86 N.M. at 419, 524 P.2d at 1035; see also First National Bank v. Wood, 93 N.M. 467, 469, 601 P.2d 437, 439 (Ct.App.1979). Nor can it be established if the conduct threatened by the stronger party consisted merely of the exercise of a legal right, under circumstances in which that conduct would have been justified if the weaker party had refused to accept the stronger party’s contractual offer. See Terrel v. Duke City Lumber Co., 86 N.M. at 423, 526 P.2d at 1039; Note, Economic Duress After the Demise of Free Will Theory: A Proposed Tort Analysis, 53 Iowa L. Rev. 892, 910 (1968); cf. Long Island Lighting Co. v. Bokum Resources Corp., 40 B.R. 274, 294-96 (Bkrtcy.N.M.1983) (legal right and reasonable alternatives defenses; decided under N.M. law); Electrical Products Co. v. Combined Communications Corp., 535 F.Supp. 356, 360 (D.N.M.1980) (legal right defense; decided under N.M. law); First National Bank v. Wood, 93 N.M. at 469-70, 601 P.2d at 439-40 (Wood, C.J., specially concurring) (legal right defense).
As the majority opinion observes, there is no question that NCR had the legal right to request security for B & W’s obligations. There is also no question that NCR had the legal right to repossess the leased equipment and to file liens against the job to secure payment of B & W’s indebtedness of approximately $700,000. Furthermore, the record clearly indicates that the parties negotiated at length, alternatives were offered, and NCR gave valuable consideration for the personal guaranty agreement by waiving its right to file liens. On the evidence and the facts of this case, reasonable minds cannot differ in concluding that NCR merely threatened to exercise a legal right and that its threatened conduct would have been justified had Bowers and Wood not acceded to NCR’s demand for personal guaranties. The trial court therefore had a duty to direct a verdict against Bowers and Wood on their economic duress defense to NCR’s counterclaim on the personal guaranty agreement. See Owen v. Burn Construction Co., 90 N.M. 297, 301-02, 563 P.2d 91, 95-96 (1977). It erred in instructing the jury on that defense.
II. Polygraph Evidence: Testimony of Reilly Taitte
The “twisted history” of the admission of polygraph test evidence in New Mexico has been recounted elsewhere. See Tafoya v. Baca, 103 N.M. 56, 57-59, 702 P.2d 1001, 1002-04 (1985); State v. Anthony, 100
N.M. 735, 737-38, 676 P.2d 262, 264-65 (Ct.App.1983); and cases cited therein. In 1983, this Court promulgated Rule 707 in order to supersede our troublesome case law criteria and to standardize the admission of polygraph evidence by establishing detailed minimum requirements for polygraphs examiners and examinations. See Tafoya v. Baca, 103 N.M. at 59-60 & n. 2, 702 P.2d at 1004-05 & n. 2; State v. Anthony, 100 N.M. at 737-39 & n. 1, 676 P.2d at 264-66 & n. 1. One of those requirements is that the “pretest interview and actual testing * * * be recorded in full.” See NMSA 1978, Evid.R. 707(e) (Repl.Pamp.1983) (now codified at SCRA 1986, 11-707(E)) (emphasis added).
The record indicates that the trial court was informed that Reilly Taitte, the polygraph examiner who tested Bowers, had not recorded the portions of the pretrial interview during which the examination questions were formulated. Nevertheless, the trial court admitted Taitte’s testimony and the results of that examination over NCR’s objection. Although the trial court may, in its discretion, admit evidence of polygraph examinations conducted in accordance with the provisions of Rule 707, the trial court here had no authority to admit evidence of an examination conducted in violation of the clear and express recording requirement of Rule 707(e). See State v. Anthony, 100 N.M. at 739, 676 P.2d at 266 (dicta); NMSA 1978, Evid.R. 707(c) (Repl.Pamp.1983) (now codified at SCRA 1986,11-707(C)). It erred in submitting Reilly Taitte’s testimony to the jury.
III. Conclusion
If the jury’s verdict in favor of Bowers and Wood on the personal guaranty issue was based upon the defense that the guaranty agreement was forged or altered from the document they signed, that verdict should be reversed because the trial court erroneously admitted polygraph evidence prejudicial to the substantial rights of NCR. If the jury’s verdict was based upon the defense of economic duress, that verdict should be reversed because the trial court erroneously instructed the jury on that defense when it should have directed a verdict in favor of NCR. Because we do not know which theory underlay the jury’s verdict, the judgment in favor of Bowers and Wood on the personal guaranty counterclaim should be reversed and the case remanded for a new trial on this issue. Cf. Perfetti v. McGhan, 99 N.M. 645, 655, 662 P.2d 646, 656 (Ct.App.), cert. denied, 99 N.M. 644, 662 P.2d 645 (1983) (remand where alternative theory erroneously submitted).
For the foregoing reasons, I respectfully dissent.