Keller v. Rytlewski

PONDER, Judge.

Defendant appealed from the judgment awarding plaintiff the balance due on the construction price of a swimming pool.

The issues are: (1) the refusal of trial court to allow testimony of an expert whose •name was not revealed within the time set by the court and (2) failure to allow credit for claimed redhibitory defects.

We reverse and remand.

At a pretrial conference the trial court allowed defendant five days to reveal the name of his expert “as to the workmanship and claims of defendant.” When the name was unrevealed some eleven days after the conference, the plaintiff presented, and the judge signed, an ex parte order preventing defendant from calling such an expert witness. The name was offered some eight days later, still some 42 days before trial. At the trial the expert testimony was presented in a proffer when the trial judge excluded the testimony under Rule VII, See. 6¹ of the rules of court of the Nineteenth Judicial District Court.

The purpose of Sec. 6 of Rule VII is the orderly preparation and trial of the cases. The time still remaining before trial when the name was furnished leads us to believe that the case could be prepared prior to trial without undue hardship. We therefore believe that the trial court was in error.

We do not suggest that the trial court could not take action against the delinquent attorney.² Here the incidence of the punishment is on the client, not the attorney.

We believe that the court should have received the expert testimony. However, unless the plaintiff is given an opportunity to rebut or impeach that testimony an injustice might result.

We therefore reverse the judgment and remand the case for the limited purpose of receiving plaintiff’s evidence to rebut or impeach defendant’s expert’s testimony now ordered included in the record and for a decision on the evidence including the expert testimony and the rebuttal and impeachment testimony.

The cost of this appeal is assessed to appellee. All other costs are to await the final outcome.

REVERSED AND REMANDED.

1 . Rule VII, Sec. 6:

“Section 6. The proposed pretrial order shall set forth:

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“(J) A list of witnesses (except those called for impeachment or rebuttal) each party may call and a short statement as to the nature (but not as to the content) of their testimony. Except for the witnesses listed, and impeachment and rebuttal witnesses, no other witnesses may be called to testify except for good cause shown.

2 . See for instance Sec. 12 of Rule VII providing for contempt proceedings.