ESTATE OF CHARLES ANTHONY SAENZ, by and through his personal representative, VIRGINIA SAENZ, individually and as next friend of ROBIN BRANDY SAENZ, minor child, MARCUS ANTHONY SAENZ, and JASON RAY SAENZ, Plaintiffs-Respondents and Cross-Petitioners,
v.
RANACK CONSTRUCTORS, INC., Defendant-Petitioner and Cross-Respondent.
ORIGINAL PROCEEDING ON CERTIORARI Manuel I. Arrieta, District
Judge.
Rodey,
Dickason, Sloan, Akin & Robb, P.A. Edward R. Ricco
Jocelyn C. Drennan Albuquerque, NM for Petitioner and
Cross-Respondent Law Offices of Jane B. Yohalem Jane B.
Yohalem
Santa
Fe, NM Scherr & Legate, P.L.L.C. Maxey M. Scherr El Paso,
TX Cervantes Law Firm, P.C. K. Joseph Cervantes Las Cruces,
NM for Respondents and Cross-Petitioners
OPINION
PETRA
JIMENEZ MAES, JUSTICE
{¶1}
In this wrongful death action, the jury returned a special
verdict that awarded damages to the individual
loss-of-consortium claimants but not to the decedent's
estate. The decedent's surviving spouse and children
(collectively Plaintiffs) filed a motion for a new trial,
arguing that the award of zero damages to the estate was not
supported by substantial evidence. The issue before this
Court is whether Plaintiffs waived the right to challenge the
jury verdict on appeal by failing to object to the verdict
prior to the jury's discharge. We conclude that they did.
{¶2}
A party is deemed to have waived a challenge to an ambiguous,
inconsistent, or incomplete jury verdict if the party had an
opportunity to raise the objection before the jury was
discharged but failed to do so. In this case, Plaintiffs
created ambiguity in the verdict by modifying the uniform
jury instruction on wrongful death damages and drafting the
special verdict form in a way that failed to advise jurors
how to allocate damages between the individual
loss-of-consortium claimants and the decedent's estate.
During its deliberations, the jury submitted a question to
the district court which confirmed that the jury was confused
about how to allocate damages on the special verdict form. As
a result of this confusion, it is unclear whether the jury
deliberately intended to award zero wrongful death damages to
the estate or whether the jury mistakenly included wrongful
death damages in its award to the individual claimants. We
hold that Plaintiffs waived the right to challenge the
verdict on appeal because they contributed to ambiguity in
the verdict and failed to object to the verdict prior to the
jury's discharge.
I.
FACTS AND PROCEDURAL HISTORY
{¶3}
Charles Anthony Saenz (Tony), an ironworker, was killed while
working on a construction project to build a new movie
theater in Las Cruces. Defendant Ranack Constructors, Inc.
(Ranack) was the general contractor for the project. Tony
fell off a thirty-foot wall while erecting the steel
framework for the theater, hitting the ground head first.
Tony was transported to the hospital by ambulance and was
pronounced dead a few minutes later.
{¶4}
Tony's spouse, Virginia Saenz, filed this wrongful death
lawsuit against Ranack in three different capacities:
individually, as the personal representative for Tony's
estate, and as next friend of the couple's minor daughter
Robin Saenz. The couple's adult sons, Marcus and Jason
Saenz, also joined as plaintiffs. Plaintiffs asserted claims
of negligence and premises liability and sought damages for
wrongful death and loss of consortium.
{¶5}
At the jury trial, the parties presented conflicting evidence
concerning damages. Plaintiffs presented evidence that Tony
was devoted to his immediate and extended family, advised and
counseled his daughter and sons, helped with housework and
cooking, was building an addition to the family home, was a
talented amateur artist, had a good sense of humor, and liked
to sing and dance at family events. Virginia testified that
Tony was in excellent health, and a stipulated jury
instruction advised the jury that Tony, who was forty-eight
years old when he died, could have been expected to live for
another thirty years. Virginia testified that Tony's
take-home wages averaged $400 a week and that if Tony had
continued to work in his construction job for the next
twenty-two years with no time off, until he reached the age
of seventy, his total after-tax wages would have been
approximately $450, 000.
{¶6}
Ranack, on the other hand, presented evidence of Tony's
history as a habitual criminal offender; his often strained
relationship with Virginia, including a divorce in 1986
before they remarried; his failure to continually support the
family; and his absences from the family home. Ranack
elicited testimony from Virginia that her husband had worked
erratically during the early years of their marriage and that
Virginia was the sole source of the family's support when
Tony was in prison.
{¶7}
Plaintiffs drafted a jury instruction on wrongful death
damages, based on UJI 13-1830 NMRA (2008) (UJI 13-1830),
which was given to the jury as Instruction No. 17.
Instruction No. 17 provided that if the jury found Ranack
liable, then the jury
must then fix the amount of money which you deem fair and
just for the life of Charles Anthony Saenz, including in your
award compensation for any of the following elements of
damages proved by the evidence:
1. The reasonable expenses of necessary medical care and
treatment and funeral and burial;[1]
2. The lost earnings, the earning capacity and the value of
the lost household services of the deceased considering the
deceased's age, earning capacity, health, habits, and
life expectancy. In considering loss of earnings or earning
capacity, deductions must be made for income taxes, social
security taxes, other taxes, and personal living expenses of
the deceased. The damages set forth in this paragraph are
damages for future loss of money and are paid in a lump sum.
Therefore, a reasonable discount must be made for the future
earning power for the damages awarded;
3. The value of the deceased's life apart from his
earning capacity;
4. The mitigating or aggravating circumstances attending the
wrongful act, neglect or default;
5. The emotional distress to the children of the decedent
caused by the loss of society, guidance, and companionship,
enjoyed with the deceased; and the emotional distress to the
spouse of the decedent caused by the loss of society,
guidance, companionship, and sexual relationship enjoyed with
the deceased;
6. The loss of guidance and counseling to the deceased's
minor child.
7. You may also consider the loss to the beneficiaries of
other expected benefits that have a monetary value. While the
presence or absence of a measurable monetary loss to
beneficiaries is a factor for consideration, damages may be
awarded even where monetary loss to the surviving
beneficiaries cannot be shown.
{¶8}
Plaintiffs made two modifications to UJI 13-1830 that have
been at issue on appeal. First, the manner in which
Instruction No. 17 identified the Plaintiffs differed from
the standard language set forth in UJI 13-1830. UJI 13-1830
provided ...