Post-Trial Motions

Question 1

Deadlines for Filing Post-Trial Motions

Answer 1

For NM: 30 days from date when judgment was entered. For Federal: 28 days.

• Previous NM rule stated that if no action was taken on motion within 30 days, it would be deemed to be denied.
• This caused problems with counsel blowing appeal deadlines
• Rule changed. Now court is required to render decision on motion within 60 days of filing

Question 2

Notes on Rule 1-059(E): Motion to Alter or Amend Judgment

Answer 2

Catchall; Rule does not contain specific grounds for relief like 60(b) and thus may be broader, but the time limit for use of Rule 1-059(E) is much shorter than the time for use of Rule 1-060(B). Court has discreteion but it is an unusual measure. Court should find there is:
• intervening change of controlling law
• availability of new evidence
• need to correct clear legal error
• need prevent manifest injustice
*NOTE: THIS IS NOT an opportunity to raise new arguments or challenge rulings which could have been done earlier

Question 3

Renewed Motion for Judgment as a Matter of Law.

Also known as Judgment Non Obstante Verdicto Rule (JNOV) (Rule 50(b))

Answer 3

• Only viewed as constitutional under the 7th Amendment if thought of as a delayed directed verdict (Directed verdict is constitutional according to Galloway).
• Therefore, need a 50(a) motion before a 50(b) AND a 50(b) is required for an appeal after denial of 50(b).
• Can’t seek a new trial on appeal on ground of insufficiency of the evidence to support the verdict where the direct appellate attack on sufficiency was foreclosed by failing to make a 50(b).
• 3 requires 2, and 2 requires 1.

Question 4

Preservation of Right to Make NOV Motion

Black Letter: Federal

Answer 4

Federal: Cannot appeal denial of a Motion for Summary Judgment after final judgment.
o Mitchell v. Forsyth: Immediate appeal by right only if the basis of the MSJ is a claim that substantive law provides immunity from being sued at all.

Question 5

Preservation of Right to Make NOV Motion

Black Letter: New Mexico

Answer 5

• New Mexico: Allows a party to appeal a MSJ after final judgment when the core issue was a pure question of law rather than fact. TEST:
1. the facts are not in dispute
2. only basis of the ruling is a matter of law which does not depend to any degree on facts to be addressed at trial
3. there is a denial of the motion
4. there is an entry of a final judgment with an appeal therefrom,
then appellant may include in the appeal the purely legal issues in summary judgment motion unsuccessfully argued. The appellant need not have renewed that legal issue during trial to preserve it.

Question 6

Ortiz v. Jordan

Prisoner 1983 case

Answer 6

Ds claim qualified immunity moved for summary judgment. Denied
Ds raised 50(a) motion for judgment as matter of law, but later failed to raise a 50(b) JNOV
Couldn’t appeal denial of 50(a).
Holding:
• Can’t appeal a denial of a Rule 56 motion after final judgment
• Should have done interlocutory appeal

Question 7

First Nat’l Bank of Albuquerque v. Sanchez,

Objection to duress jury instruction case…again

Answer 7

Holding:
• Objection to jury instruction on lack of sufficient evidence was the functional equivalent of a motion for directed verdict
• Comports with federal decision that have taken a liberal view of what constitutes a DV motion to support later JNOV.
Note: Case states that Before the claim is submitted to the jury, the opposing party still has an opportunity to cure any defect in proof brought to their attention.

Question 8

Applicable Standard for Post-Trial Motions

Answer 8

Federal Cases:
• Federal Diversity Cases: Apply federal rather than state test for sufficiency of the evidence.
• Standard: On motions for directed verdict and JNOV court should consider ALL the evidence in the light and with all reasonable inferences most favorable to the opposing party. Mere scintilla is not enough. Must be a conflict in SUBSTANTIAL EVIDENCE to create a jury question.

Question 9

Boeing Company v. Shipman

Painter in factory; Worker’s Comp. case

Answer 9

Facts: Painter in factory sues for failure to provide safe place to work and proper equipment
Claims brought under FELA (federal worker’s compensation statute)
Statute created a looser standard, almost like a scintilla test (?)

Holding:
• Reject statutory test as limited to cases falling under FELA
• Adopts SUBSTANTIAL EVIDENCE test

Question 10

New Mexico Test for the propriety of a JNOV

Answer 10

New Mexico
• In testing the propriety of a JNOV the evidence favorable to the successful party, together will all inferences as may reasonably be drawn therefrom, will be accepted as true and all evidence to the contrary will be disregarded. Upon analysis, there is neither evidence nor inference from which a jury could have arrived at its verdict. [Different from Melnick test for directed verdict]
• Physical facts rule: Montoya v. General Motors Corp (Ct. App. 1975): When surrounding facts and circumstances make the story of a witness incredible, or when the testimony is inherently improbable, such evidence is NOT substantial.

Question 11

Review on a Diminished Record: Federal

Answer 11

Federal: Yes. Diminished record. Court of appeals has the authority to direct judgment as a matter of law where, after striking evidence wrongly admitted, there is insufficient evidence to support verdict. [use with caution – Neely]

(1) Order a new trial at verdict winner’s request or on its motion
(2) Remand to the trial court to decide whether to grant a new trial or enter judgment
(3) Direct entry of judgment as a matter of law

Question 12

Weisgram v. Marley Company

Products liability and Review on Diminished Record

Answer 12

Facts: Products liability case. Court allowed 3 P experts.
Ds filed DV: it was denied; filed JNOV & for new trial: Denied.
Then appealed based on unqualified experts.
Appeals court agreed experts not qualified.
Struck evidence and found remaining evidence insufficient as a matter of law

Holding:
• Court of appeals has the authority to direct judgment as a matter of law where, after striking evidence wrongly admitted, there is insufficient evidence to support verdict.

Question 13

Review on a Diminished Record: New Mexico.

Answer 13

New Mexico: Townsend v. United States Rubber Company:
• New Mexico: No. Undiminished only. Motions for a directed verdict and JNOV must be decided on undiminished record as it existed at close of trial and evidence admitted over objection cannot be excluded. Party must be given a chance to correct the hold in the record. A new trial must be granted for this purpose.

Question 14

Summary of Motion for a New Trial. Rule 59

Answer 14

*See Table on your Desktop

Question 15

NMRA 12-216(A) Motion for new trial not a prerequisite for an appeal.

Answer 15

• Many good reasons for not wanting a new trial. Risks the possibility that the trial court might fix the problem, thereby destroying your grounds for appeal.
• But useful when no other way to handle issues that are not appealable (i.e. no PEP: preserver, error, or prejudice)

Question 16

Aetna Casualty & Surety Co. v. Yeatts

Constitutionality of Judge’s Authority to Grant New Trial

Answer 16

Facts:
Case #1: P sues D for malpractice, illegal abortion
Insurance company doesn’t cover criminal activity
Case #2: Insurance Co. v. Yeats (declaratory judgment).
Yeats counterclaims.
Jury finds for Yeats.
Ins. co. files JNOV but failed to request DV

Holding:

1. Grounds Even in the Absence of Reversible Error: [Need to Make Motion to Appeal]
   1a. Judge believes the verdict is against the clear weight of the evidence
   1b. Based on evidence which is false
   1c. Based on evidence that will result in a miscarriage of justice – even where substantial evidence to prevent directed verdict.
2. New Trial is at the discretion of the judge and is not reviewable on appeal except in exceptional circumstances – e.g. abuse of discretion
   * Erie Doctrine: Apply federal standards for a new trial even when case is governed by state substantive law.

Question 17

New Mexico Rule for Motion for a new Trial

Answer 17

New Mexico Rule (more restrictive than Federal Standard) “clearly and palpably contrary to verdict”

1. Evidence of jury tampering or contamination
2. Weight of the evidence is clearly and palpably contrary to the jury’s verdict
3. Where it is manifest to a reasonable certainty that justice has not occurred.

Question 18

Rhein v. ADT Automotive, Inc.

Retaliatory discharge suit

Answer 18

Retaliatory discharge suit.
Jury awarded Ps different levels of compensatory damages.
Court refused to instruct on punitive damages.
D motion for a new trial, granted.

Holding:
• Court abused discretion.
• Trial court can grant a motion for new trial only when evidence of jury tampering or contamination of process…
• …or when the weight of the evidence is CLEARLY AND PALPABLY contrary to the jury’s verdict.

Question 19

Remittitur

Answer 19

An order granting a remittitur, or in the alternative, a new trial, is appropriate when the jury’s award of damages is so grossly out of proportion to the injury received as to shock the conscience.

*Note: Special Verdict form would allow one to see excessiveness. General Verdict would hide it.

Question 20

New Mexico: Two tests for determining when award is excessive as to shock the conscience

Answer 20

NM Tests:

1. Whether the evidence, in the light most favorable to the plaintiff, substantially supports the award
2. Whether there is an indication of passion, prejudice, partiality, sympathy, undue influence or a mistaken measure of damages on the part of the fact finder.

*Note: The award is excessive if either test is met.

• When the jury verdict as to damages is clearly not supported by substantial evidence, a motion for a new trial should be granted, and not to do so would be an abuse of discretion by the court.

Judge must provide a clear articulation of how and why damages are excessive, applying the standard in Richardson v. Rutherford
o Passion, prejudice, partiality, sympathy, undue influence, or some corrupt cause or motive where palpable error is committed by the jury or where the jury has mistaken the measure of damages.

Question 21

Burdens of Proof and Persuasion in Remittitur

Answer 21

• Since the trial court’s reasons directly conflict with the jury verdict and the defendant must carry the burden of justifying nullification.
• The appellant attacks the reasons for remittitur given by the trial judge by demonstrating that the record supports the contention that there was no error in the verdict. The burden then shifts to the appellee to show there was reversible error to support the judges reasoning.
• Where the trial court sets forth certain reasons for which the appellant asserts there is a lack of support in the record, the burden then shifting to the appellee to show that the trial court was correct.

Question 22

Henderson v. Dreyfus

Defamation suit against newspaper

Answer 22

Facts: Defamation suit against newspaper; he burned U.S. flag
Jury granted P damages $50,000.
D moves for a new trial on amount.
Court: can be a new trial UNLESS P will accept remittitur.

Holding:
• Remittitur does not violate Article II, Section 12 of the New Mexico Constitution.
• Where court finds verdict excessive because of passion or prejudice new trial should be granted.
• Where court finds damages excessive but not result of passion, remittitur is still an option.
• Applies to both liquidated and unliquidated damages

Question 23

Sandoval v. Chrysler Corp.

Auto accident caused by third driver

Answer 23

Facts: Auto accident caused by third driver, D’s car exploded.
2 people escaped; 2 passenger died in fire
P had minor injuries, now sunburns easily
P sued for Pain & Suffering.
Jury returned verdict in favor of P
• Chrysler moved for new trial or remittitur, grossly out of proportion, shock the conscience
• Judge agreed to shock the conscience but had not pain and suffering guidelines.
• Denied motion but encouraged appeal.

Holding:
• Court abused its discretion in failing to act upon its findings regarding excessive verdict.
• Trial judge and jury must work together to arrive at a fair decision
• Then appeal will review to see if the standard was right.

Question 24

New Mexico Rules on Remittitur

Answer 24

Hall v. Stiles: The findings of the jury should not be disturbed except in extreme cases as where it results from passion, prejudice, etc., some corrupt cause or motive, where palpable error is committed by the jury, or where the jury has mistaken the measure of damages.

Question 25

Appellate Remittitur: Richardson Test for Excessiveness

Answer 25

Excessiveness is determined as a matter of law, not by weighing the evidence. (1) substantial evidence of passion prejudice, partiality, sympathy, undue influence, or some corrupt cause or motive where palpable error is committed by the jury or (2) jury has mistaken measure of damages.
• When ordering a remittitur, a trial court must offer the plaintiff the option for a new trial, and that the plaintiff must choose between the two and may accept the remittitur under protest and appeal. On appeal, the record of the court’s specific findings is reviewed on a passion or prejudice standard as detailed in Richardson.
• Trial judge has LIMITED superintendence when ordering a remittitur and such discretion must be support by express reasons above (in Richardson).

Question 26

Burden under the Richardson Test for Excessiveness

Answer 26

o An appellant meets burden of attacking the new trial ruling by submitting the record to the appellate court with the contention there was no prejudicial error; burden then shifts to the appellee to identify any prejudicial error in the record which justified new trial.
o Where the trial court sets forth certain reasons for which the appellant asserts there is a lack of support in the record, the burden then shifts to the appellee to show that the trial was correct.

Question 27

New Mexico Under Protest Rule

Answer 27

• P must choose between remittitur and a new trial and that remittitur may then be accepted “under protest” and appealed.
• Doesn’t have to wait until the completion of the second trial before getting an appeal.
• Assures voices of jury will ultimately be heard, and that right to appeal the legal decision of the trial judge will be unfettered

Question 28

Allsups Convenience Stores, Inc. v. North River Insurance Co.

(Workers comp. Insurance case)

Answer 28

Facts: P had series of workers compensation on its policy.
Claims adjustment at end of coverage period was wacked.
Insurance co. counterclaimed for non-payment of premium.
Jury verdict for P, with punitive damages.
Insurance filed a JNOV or alternatively new trial or remittitur.
Court granted motion for new trial or remittitur.

Holding:
P can accept under protest to get final judgment for appeal.
• Donovan (SCOTUS) Barred Ps from seeking review of remittitur orders even those under protest which is a procedural technique whereby remittitur is conditionally accepted for purposes of rendering the judgment final.

Burden: appellant demonstrates no prejudice by submitting record, then appellee must identify prejudicial error in record. When trial court supplies reasons, burden shifts to appellee to show court was correct.

Question 29

Coates v. Wal-Mart Stores

Reverse burden shift case

Answer 29

Facts: 2 former Wal-Mart employees brought negligent supervision and IIED claims for sexual harassment.
District court refused to remit punitive damage awards.

Holding:
• Court did not abuse discretion.
• Burden: When the defendant is the appellant, the defendant has the burden and must show the verdict was infected with passion, prejudice, etc.

Question 30

Control of Punitive Damages in Remittitur

Answer 30

1. Civil Procedure
2. Legislative Cap
3. Constitutional Law:
   3a. Procedural Due Process: (1) jury instructions (2) Post trial procedure (3) appellate review
   3b. Substantive Due Process: Gore Guideposts
   3c. De Novo review both Fed/NM is constitutionally required

*Note: In a punitive damages case must (1) first apply con law test to determine max then (2) ask for a CL remittitur if still too high.

Question 31

Aken v. Plains Electric Generation & Transmission Co-Op, Inc.

(Constitutional cap for Punitive Damages)

Answer 31

Facts: Aken stood up to management on plant safety and sexual harassment.
Was fired and accused of stealing.
Had a stroke. Jury awarded large punitive damages.

Holding: • Awards for punitive damages were too excessive under due process
• Have to be limited within consideration of the Gore v. BMW guideposts

Question 32

Procedural Due Process Requirements for Punitive Damages

Answer 32

1. Jury Instructions: Must tell jury purpose of punitive damages; identify damages as punishment for civil wrongdoing; imposition not compulsory.
2. Post Trial Procedure: Option for remittitur or new trial; JNOV
3. Appellate Procedure: Must be de novo review for procedural DP

Question 33

Substantive Due Process Requirements for Punitive Damages: BMW/Gore Guideposts

Answer 33

1. Degree of reprehensibility of D’s misconduct
2. Disparity between harm P suffered and punitive damages
3. Disparity between damages awarded by the jury and civil penalties authorized or imposed in comparable cases.

Question 34

State Farm Mutual Ins. Co. v. Campbell

Determining punitive damages in New Mexico

Answer 34

No bright line rule but few awards exceed single digit ratio between punitive and compensatory
New Mexico Test:
1. Size of the verdict in light of enormity and nature of the wrong considering aggravating and mitigating circumstances
2. Relation between damages and actual injury or actual damages sustained
a. Amount of award of punitive damages must not be so unrelated to the injury and actual damages proven as to plainly manifest passion and prejudice

Question 35

Additur

Answer 35

*Definition: a legal term referring to the practice of a trial judge adding damages additional to the original amount awarded by the jury. It is not allowed in U.S. federal courts, as held by Dimick vs. Schiedt.

• SCOTUS held procedure of additur was a violation of 7th Amendment.
• NM has not found constitutional infirmity with additur, but has not applied it.

Question 36

GRANT OF PARTIAL NEW TRIAL

Answer 36

Rule: Awarding a new trial limited to liability conforms with the spirit of Rule 59(a) even when the jury has fully adjudicated the damages issues
• Cherry v. Stockton – Respondent Superior case where Ps want to show insurance contract to demonstrate employer/employee relationship and court refused to admit; Court found company had a full and fair opportunity to litigate employee’s liability and damages

Question 37

NEW TRIAL IN MULTIPLE PARTY CASES

Answer 37

Rule: When jury has apportioned fault between several Ds and error infects the verdict as to one, retrial may be appropriate as to all the other negligent parties. However, when jury has found one party not negligent, that party should not automatically be subject to retrial.

Question 38

NM Test for New Trial in Multi-Party Case

Answer 38

New Mexico Test:
Whether there is a clear showing that the issues in the case are so distinct and separable that a party may be excluded without prejudice.

Question 39

Buffet v. Vargas

E.g. of court handling new trial in multi-party case

Answer 39

Facts: No damages granted but court adds in funeral costs. Deceased’s father sues drunk driver, bar owners who served him, and cop who didn’t stop him.

Holding:
• Court found liability for deceased, a non-party driver of deceased, and other driver.
• Father appealed based on an evidentiary question.
• Court says those exonerated don’t need to come back to trial

Question 40

Goldenberg v. Law

Coin Toss case

Answer 40

Facts: Suit for attorney fees. Jury flipped coin to determine amount of damages.

Holding: Cannot use juror affidavits to impeach their verdicts
• would open door to harass jurors
• would defeat solemn acts under oath
• dissatisfied juror could destroy a verdict any time after he assented to it

Coin toss method is reprehensible, but cannot be proven by any method other than the juror’s affidavits. Verdict stands

Question 41

NM Rule 11-606(B): Jurors

Answer 41

Juror may not testify as to any matter or statement occurring during the course of jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions regarding the verdict.
Exceptions can testify about:
1. Whether extraneous prejudicial information was improperly brought to jury’s attention
2. Whether any outside influence was improperly brought to bear on any juror
3. Whether there was a mistake in entering a verdict on the verdict form.

Question 42

Kilgore v. Fuji Heavy Industries, Ltd.

Juror at a Subaru Mechanic’s shop case

Answer 42

Facts: Jurors brother worked at a mechanic shop. She asked owner questions about seat belts. Obtained affidavit from shop owner, not juror. P filed for new trial, court denied without evidentiary hearing

Holding:
• Affidavit was sufficient preliminary showing of potential jury problem
• P should have had an evidentiary hearing on that issue
• Whenever admissible evidence comes to light, court should hear evidentiary hearing on issue of jury contamination

Question 43

Federal Rule on New Trial based on Jury Misconduct

Answer 43

In United States v. Olano SCOTUS distanced from presumption of prejudice and asked: Did the intrusion affect the jury’s deliberations and thereby its verdict?
o Proper remedy: evidentiary hearing.

Question 44

New Mexico: Objective Test for Probability of Prejudice in Jurors. Three Main Parts

Answer 44

1. To invoke presumption of prejudice, Moving party bears the burden to make PRELIMINARY SHOWING that has competent evidence that:
   1a. Material actually reached the jury
   1b. Material relates to the case being tried
   1c. Reasonably probable or likely material affected jury’s verdict or typical juror
2. The moving party can show whether reasonable juror was affected by:
   2a. The manner in which extraneous material was received
   2b. How long the extraneous material was available to the jury
   2c. Whether the jury received the extraneous material before or after the verdict
   2d. If received before the verdict, at what point in the deliberations was the material received
   2e. Whether it is probable that the extraneous material affected the jury’s verdict give the overall strength of the opposing party’s case.
   2f. Whether it was discussed and considered extensively by the jury
3. Then burden shifts to opposing party to demonstrate improper conduct did NOT have effect.

Question 45

Smith v. Ingersoll-Rand Company

Errant Paper Pad in the Jury Room Case

Answer 45

FACTS: D appealed from jury verdict in favor of an employee who sued for negligence and strict liability. During deliberation jury had access to a paper pad with 9 pages of P’s counsel notes. Court contacts parties and conducts an evidentiary hearing. Concludes it was extraneous material BUT a reasonable juror would not have been influenced.

Holding:
Deference to trial court decision unless it is obvious that its decision not to conduct new trial is wrong, no abuse of discretion.
• Two Tests in 10th Circuit:
1. Jury exposure to extrinsic material warrants a new trial if there is the “slightest possibility” exposure influenced jury.
1a. Moving party must show harm occurred.

2. Jury exposure to extraneous info creates a presumption of prejudice which may be rebutted by showing exposure was harmless.
   2a. Burden: Forces non-movant to prove exposure was harmless.

Question 46

Shadoan v. Cities of Gold Casino

$20 instead of 20% case

Answer 46

P was robbed in casino parking lot and sued
Jury awarded half of medical expenses, finding D 20% liable. Got it wrong on the form, P got only $20 of $4,000 medical expenses. Judge met with jury, found out they intended to give ½ medical and 20% of $448,500 compensatory. P moved for additur or new trial. Submitted affidavits of 3 jurors which court allowed under Rule 11-606(B).

Holding:
• Adopt narrow federal construction and find this is NOT clerical error.
• Juror affidavits not admissible.
• Clerical error is restricted to PURE TRANSCRIPTION ERRORS

*Note: always poll the jury as a double check against mistake

Question 47

NEW TRIAL IN NON-JURY TRIALS

See also, Rule 59(a)

Answer 47

Rule: A court may grant a motion to reopen the case for the taking of additional testimony, which is the equivalent of a motion for a new trial, in the sound discretion of the trial judge, and his determination will not be overturned on appeal except for its clear abuse. CIENFUEGOS V. PACEHCO, 56 N.M. 667 (1952).

Question 48

Difference between Federal v. New Mexico in regards to New trial in Non-Jury Trials

Answer 48

• Federal rule says “in actions at law in the courts of the United States; and in an action tried without a jury, for any of the reasons for which re-hearings have heretofore been granted in suits in equity in the courts of the United States” are omitted.

^*(this one is weird, check out Rule 59(a) again)???

• Limitation in the federal rule in the instance of cases tried in courts without a jury is not included in the NM Rule. NM desired to grant broader discretion when hearing a case without a jury.