Budagher v. Amrep Corp.
| Decision Date | 12 April 1983 |
| Docket Number | No. 5893,5893 |
| Citation | 667 P.2d 972,100 N.M. 167,1983 NMCA 48 |
| Parties | John BUDAGHER and Frances D. Budagher, his wife, Plaintiffs-Appellees, v. AMREP CORPORATION, dba Rio Rancho Estates, Inc., Defendants-Appellants. |
| Court | Court of Appeals of New Mexico |
The defendants contend that reversible error was committed when the plaintiffs' requested instructions were inadvertently submitted to the jury for the first hour of its deliberation. We agree, and reverse.
The case, first tried in 1980, concerns the plaintiffs' claim that the defendants, Amrep Southwest, Inc. and Amrep Corporation, negligently controlled runoff, which caused flood damage to the plaintiff's property. After the first trial, which resulted in a verdict for the defendants, the Supreme Court reversed. Budagher v. Amrep Corp., 97 N.M. 116, 637 P.2d 547 (1981). On retrial the jury entered a verdict for the plaintiffs which included punitive damage awards of three-quarters of a million dollars. Finding that the defendants consciously disregarded the rights of downstream owners in order to save money, the jury returned punitive damage awards of $650,000.00 against Amrep Corporation and $100,000.00 against Amrep Southwest, Inc. The jury found the defendants 95% negligent, and the plaintiffs 5% negligent; plaintiffs' compensatory damage award was $48,507.00.
The defendants attack the punitive damage award as excessive, and also contend that Amrep Corporation, the parent corporation of Amrep Southwest, should have been dismissed from the case. But the defendants' strongest argument, and the one on which we base our reversal, concerns the inadvertent submission of the plaintiffs' requested instructions to the jury. Because of our disposition of this point we need not consider the award of damages or the trial court's refusal to dismiss Amrep Corporation.
At approximately 11:00 A.M. on the final day of trial the jury retired to the jury room. The court reporter proceeded to the bench to get the court's jury instructions, but inadvertently picked up the plaintiffs' requested instructions, and took them into the jury room. At noon the jury went to lunch.
While the jury was having lunch the court reporter walked through the jury room to the restroom. She noticed the incorrect instructions on the table. Without telling anyone she replaced the incorrect instructions with the correct instructions.
The jury returned from lunch, and not long after that they called for the court reporter. They wanted the instructions they had had before lunch because they had written on them. In the hour before lunch the jury had answered three special interrogatories. This was the writing they had done on the incorrect instructions. In the three interrogatories the jury penciled in "yes" answers to three questions. We do not know if the answers represent the views of all of the jurors.
Question number 4, not answered, concerned allocation of negligence between the parties.
After the court reporter had been in the jury room she told the judge what had happened. The judge then summoned counsel and told them of the problem. A discussion followed:
THE COURT: Can we do this, can we go in--they have the original set now, the proper set--and tell them that if they can disregard those things?
MR. ROEHL [defense counsel]: That's fine with me.
The plaintiffs' attorney, Mr. Morgan, also agreed to the procedure. Mr. Henkel, defense co-counsel, asked for a few minutes to discuss things with Mr. Roehl, which the judge allowed. After the discussion with co-counsel Mr. Roehl wanted to know if plaintiffs' counsel, Mr. Morgan, had filled in the special interrogatories. Mr. Morgan said that he had not. Then:
Mr. Roehl: If that is so, then we would be willing to ask the jury if they could disregard the Instructions they have seen and go with the Court's Instructions and continue with this event.
The judge, contemplating the possibility of a mistrial, stated that "without making any decision, we'll go in there [the jury room] and make some inquiries and reserve some decision * * *." The judge further stated that he would not make any decision until the verdict was in.
The judge and counsel went into the jury room. The judge told the jurors of the mistake, and asked them if they could disregard the incorrect instructions and consider only the correct ones. All said they could.
Counsel and the judge returned to the judge's chambers.
The next morning the jury continued to deliberate, and counsel and the judge met in the judge's chambers. The judge said:
" * * * [i]t's my understanding then that this Court was going to rule today with reference to keeping this case with the jury, declaring a mistrial or what."
The judge then had counsel put their positions on record. Mr. Roehl moved for a mistrial. After argument, the judge denied the motion. Later in the morning, at 11:22 A.M., the jury returned its verdict.
The plaintiffs contend that the defendants agreed to the judge's questioning of the jury and have waived any error. Under the circumstances we do not believe that the defendants waived any claim of error.
The comments of the trial court, in the afternoon when the mistake was discovered, and the following morning when the jury continued deliberation, indicate that he was taking a "wait-and-see" approach, suspending a mistrial decision until May 12. On May 12, when asked for his position, defendants' counsel moved for a mistrial and stated his reasons. In view of the way the judge handled the matter, it is clear that defense counsel was permitted by the court to reserve any consideration of a request for mistrial until the next day, and defendant's mistrial motion was enough to preserve the error.
For roughly the first hour of its deliberation the jury had the plaintiffs' requested instructions. Each of the instructions had "Plaintiffs' Requested Instruction No. ______" on the top. Many of the instructions had the U.J.I. notation at the bottom, contrary to N.M.R.Civ.P. 51(G), N.M.S.A.1978 (1980 Repl.Pamph.). Six instructions had a citation to the previous appeal in the case, "Budagher v. Amrep Corporation , 637 P.2d 547 (N.M.1981)." One instruction had a citation to another case against the defendants, "Gutierrez v. Rio Rancho Estates, Inc., 93 N.M. 755, 605 P.2d 1154".
Other errors and omissions are more significant. Plaintiffs' requested instruction number 21, concerning punitive damages, had the word "or" underlined twice: " * * * if you further find that the acts of defendant were willful, wanton, malicious, reckless, or grossly negligent, then you may award exemplary or punitive damages."
Equally as important as what the jury saw on the plaintiffs' instructions is what they did not see in the first hour. Defendants' requested instruction number 5, approved by the court, explained its contributory negligence and Act of God defenses. This instruction was absent during the first hour. Defendants' requested instruction number 8, approved by the court, set forth its Act of God defense. It too was absent during the first hour. Also absent was defendants' requested instruction number 2, "A corporation is entitled to fair treatment. * * * " and number 15, which defined contributory negligence.
There can be no doubt that error exists. Was it reversible error? Because of the unusual nature of the error the parties have not cited us to any cases in which the same error was committed, and we have been unable to find any.
In Scott v. Brown, 76 N.M. 501, 416 P.2d 516 (1966) the trial judge wrote "refused" on one of the instructions, and signed his name below it. Realizing that he intended to give the instruction the judge then struck "refused" and wrote "given". The Supreme Court recognized the rule that instructions which unduly emphasize any portion of the case should not be given, but held that the error was harmless. The error of allowing a correct, although marked, instruction to go to the jury is not comparable to permitting unauthorized, heavily annotated requested instructions to be considered by the jury, inadvertent though it may have been.
In New Mexico-Colorado Coal & M. Co. v. Baker, 21 N.M. 531, 157 P. 167 (1916), two instructions were signed by one of the plaintiff's attorneys, and the defendant claimed that this demonstrated "an unwarranted confidence" between the plaintiff's attorneys and the court. It was held that this was not reversible error. Like Scott, supra, New Mexico-Colorado Coal deals with an error which...
To continue reading
Request your trial
-
Gonzales v. Surgidev Corp.
...improper communications or extraneous prejudicial information reaching the jury, prejudice is presumed. Budagher v. Amrep Corp., 100 N.M. 167, 171, 667 P.2d 972, 976 (Ct.App.), cert. denied, 100 N.M. 192, 668 P.2d 308 (1983). If there is a reasonable possibility that the claimed error may h......
-
Kilgore v. Fuji Heavy Industries Ltd.
...727 P.2d 553, 554-55 (Ct.App. 1986) (involving a bailiff's direct and inappropriate contact with jurors); Budagher v. Amrep Corp., 100 N.M. 167, 171, 667 P.2d 972, 976 (Ct.App.1983) (involving an improper set of instructions in the jury room and the court noting a number of improper-communi......
-
Jessen v. National Excess Ins. Co.
...637 P.2d 547, 552 (1981), (quoting Pendergrass v. Lovelace, 57 N.M. 661, 663, 262 P.2d 231, 232 (1953)), appeal after remand, 100 N.M. 167, 667 P.2d 972 (Ct.App.), cert. denied, 100 N.M. 192, 668 P.2d 308 One who owes * * * an absolute and positive duty to the public or an individual cannot......
-
Prudencio v. Gonzales
...State v. Doe, 101 N.M. 363, 683 P.2d 45 (Ct.App.1983), cert. denied, 101 N.M. 276, 682 P.2d 61 (1984); Budagher v. Amrep Corp., 100 N.M. 167, 667 P.2d 972 (Ct.App.), cert. denied, 100 N.M. 192, 668 P.2d 308 (1983). See also the review of decisions relating to communications between court of......