Estate of Saenz v. Ranack Constructors, Inc.

          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 ...