 1        IN THE SUPREME COURT OF THE STATE OF NEW MEXICO


 2 Opinion Number:

 3 Filing Date: April 30, 2018

 4 No. S-1-SC-35515

 5   ESTATE OF CHARLES ANTHONY SAENZ,
 6   by and through his personal representative,
 7   VIRGINIA SAENZ, individually and as
 8   next friend of ROBIN BRANDY SAENZ,
 9   minor child, MARCUS ANTHONY SAENZ,
10   and JASON RAY SAENZ,

11        Plaintiffs-Respondents and Cross-Petitioners,

12 v.

13 RANACK CONSTRUCTORS, INC.,

14        Defendant-Petitioner and Cross-Respondent.

15 ORIGINAL PROCEEDING ON CERTIORARI
16 Manuel I. Arrieta, District Judge


17   Rodey, Dickason, Sloan, Akin & Robb, P.A.
18   Edward R. Ricco
19   Jocelyn C. Drennan
20   Albuquerque, NM

21 for Petitioner and Cross-Respondent


22 Law Offices of Jane B. Yohalem
23 Jane B. Yohalem
1 Santa Fe, NM

2 Scherr & Legate, P.L.L.C.
3 Maxey M. Scherr
4 El Paso, TX

5 Cervantes Law Firm, P.C.
6 K. Joseph Cervantes
7 Las Cruces, NM

8 for Respondents and Cross-Petitioners
 1                                       OPINION

 2 MAES, Justice.

 3   {1}   In this wrongful death action, the jury returned a special verdict that awarded

 4 damages to the individual loss-of-consortium claimants but not to the decedent’s

 5 estate. The decedent’s surviving spouse and children (collectively Plaintiffs) filed a

 6 motion for a new trial, arguing that the award of zero damages to the estate was not

 7 supported by substantial evidence. The issue before this Court is whether Plaintiffs

 8 waived the right to challenge the jury verdict on appeal by failing to object to the

 9 verdict prior to the jury’s discharge. We conclude that they did.

10   {2}   A party is deemed to have waived a challenge to an ambiguous, inconsistent,

11 or incomplete jury verdict if the party had an opportunity to raise the objection before

12 the jury was discharged but failed to do so. In this case, Plaintiffs created ambiguity

13 in the verdict by modifying the uniform jury instruction on wrongful death damages

14 and drafting the special verdict form in a way that failed to advise jurors how to

15 allocate damages between the individual loss-of-consortium claimants and the

16 decedent’s estate. During its deliberations, the jury submitted a question to the

17 district court which confirmed that the jury was confused about how to allocate

18 damages on the special verdict form. As a result of this confusion, it is unclear

19 whether the jury deliberately intended to award zero wrongful death damages to the
 1 estate or whether the jury mistakenly included wrongful death damages in its award

 2 to the individual claimants. We hold that Plaintiffs waived the right to challenge the

 3 verdict on appeal because they contributed to ambiguity in the verdict and failed to

 4 object to the verdict prior to the jury’s discharge.

 5 I.      FACTS AND PROCEDURAL HISTORY

 6   {3}   Charles Anthony Saenz (Tony), an ironworker, was killed while working on

 7 a construction project to build a new movie theater in Las Cruces. Defendant Ranack

 8 Constructors, Inc. (Ranack) was the general contractor for the project. Tony fell off

 9 a thirty-foot wall while erecting the steel framework for the theater, hitting the ground

10 head first. Tony was transported to the hospital by ambulance and was pronounced

11 dead a few minutes later.

12   {4}   Tony’s spouse, Virginia Saenz, filed this wrongful death lawsuit against

13 Ranack in three different capacities: individually, as the personal representative for

14 Tony’s estate, and as next friend of the couple’s minor daughter Robin Saenz. The

15 couple’s adult sons, Marcus and Jason Saenz, also joined as plaintiffs. Plaintiffs

16 asserted claims of negligence and premises liability and sought damages for wrongful

17 death and loss of consortium.

18   {5}   At the jury trial, the parties presented conflicting evidence concerning


                                               2
 1 damages. Plaintiffs presented evidence that Tony was devoted to his immediate and

 2 extended family, advised and counseled his daughter and sons, helped with

 3 housework and cooking, was building an addition to the family home, was a talented

 4 amateur artist, had a good sense of humor, and liked to sing and dance at family

 5 events. Virginia testified that Tony was in excellent health, and a stipulated jury

 6 instruction advised the jury that Tony, who was forty-eight years old when he died,

 7 could have been expected to live for another thirty years. Virginia testified that

 8 Tony’s take-home wages averaged $400 a week and that if Tony had continued to

 9 work in his construction job for the next twenty-two years with no time off, until he

10 reached the age of seventy, his total after-tax wages would have been approximately

11 $450,000.

12   {6}   Ranack, on the other hand, presented evidence of Tony’s history as a habitual

13 criminal offender; his often strained relationship with Virginia, including a divorce

14 in 1986 before they remarried; his failure to continually support the family; and his

15 absences from the family home. Ranack elicited testimony from Virginia that her

16 husband had worked erratically during the early years of their marriage and that

17 Virginia was the sole source of the family’s support when Tony was in prison.

18   {7}   Plaintiffs drafted a jury instruction on wrongful death damages, based on UJI



                                             3
 1 13-1830 NMRA (2008) (UJI 13-1830), which was given to the jury as Instruction No.

 2 17. Instruction No. 17 provided that if the jury found Ranack liable, then the jury

 3         must then fix the amount of money which you deem fair and just for the
 4         life of Charles Anthony Saenz, including in your award compensation
 5         for any of the following elements of damages proved by the evidence:

 6         1.     The reasonable expenses of necessary medical care and treatment
 7                and funeral and burial;1

 8         2.     The lost earnings, the earning capacity and the value of the lost
 9                household services of the deceased considering the deceased’s
10                age, earning capacity, health, habits, and life expectancy. In
11                considering loss of earnings or earning capacity, deductions must
12                be made for income taxes, social security taxes, other taxes, and
13                personal living expenses of the deceased. The damages set forth
14                in this paragraph are damages for future loss of money and are
15                paid in a lump sum. Therefore, a reasonable discount must be
16                made for the future earning power for the damages awarded;

17         3.     The value of the deceased’s life apart from his earning capacity;

18         4.     The mitigating or aggravating circumstances attending the
19                wrongful act, neglect or default;

20         5.     The emotional distress to the children of the decedent caused by
21                the loss of society, guidance, and companionship, enjoyed with
22                the deceased; and the emotional distress to the spouse of the
23                decedent caused by the loss of society, guidance, companionship,
24                and sexual relationship enjoyed with the deceased;

     1
25    During closing argument, Plaintiffs’ counsel told the jury that the amount of medical
26   and funeral expenses were no longer at issue because the parties had stipulated to an
27   amount. The stipulated amount, reduced for comparative fault, was later included in
28   the judgment as an award to the decedent’s estate.

                                               4
 1         6.    The loss of guidance and counseling to the deceased’s minor
 2               child.

 3         7.    You may also consider the loss to the beneficiaries of other
 4               expected benefits that have a monetary value. While the presence
 5               or absence of a measurable monetary loss to beneficiaries is a
 6               factor for consideration, damages may be awarded even where
 7               monetary loss to the surviving beneficiaries cannot be shown.

 8   {8}   Plaintiffs made two modifications to UJI 13-1830 that have been at issue on

 9 appeal. First, the manner in which Instruction No. 17 identified the Plaintiffs differed

10 from the standard language set forth in UJI 13-1830. UJI 13-1830 provided that the

11 plaintiffs in a wrongful death case should be identified as follows:

12                This lawsuit has been brought by __________________
13         (plaintiff) [individually and] on behalf of the surviving beneficiaries of
14         __________________ (name of decedent) who is now deceased. The
15         surviving beneficiaries are __________________ (names of surviving
16         beneficiaries).

17 UJI 13-1830. In Instruction No. 17, Plaintiffs replaced “on behalf of the surviving

18 beneficiaries” with “on behalf of the estate,” as follows:

19               The lawsuit has been brought by Virginia Saenz, Individually and
20         on behalf of the estate of Charles Anthony Saenz, who is now deceased.
21         The surviving spouse is Virginia Saenz. The surviving beneficiaries are
22         Robin Brandy Saenz, Marcus Anthony Saenz, and Jason Ray Saenz.

23 (Emphasis added.)

24   {9}   Second, Instruction No. 17 erroneously included two inconsistent provisions



                                               5
 1 concerning loss-of-consortium damages. One of those, the fifth numbered provision,

 2 was included as an element of damages the jury could award if proved by the

 3 evidence. See UJI 13-1830 ¶ 6 (permitting the jury to award damages for “emotional

 4 distress . . . caused by the loss of [society,] [guidance,] [companionship] and [sexual

 5 relations] enjoyed with the deceased”). The other provision was located at the end

 6 of the last sentence of the instruction and directed the jury that the amount of damages

 7 “must not . . . be influenced by . . . the loss of the deceased’s society to the family.”

 8 (Emphasis added.) In UJI 13-1830, these two conflicting provisions were set forth

 9 in brackets, and the Use Note explained that the provisions should be used in the

10 alternative depending on the circumstances of the case. See UJI 13-1830, Use Note

11 (explaining that if the personal representative is also the surviving spouse, the

12 instruction should include the paragraph describing loss-of-consortium damages and

13 should exclude the bracketed language at the end of the last sentence).

14   {10}   Plaintiffs’ proposed wrongful death damages instruction included both of these

15 conflicting provisions, but during a jury instruction conference, Plaintiffs’ counsel

16 asked the district court to remove the loss-of-consortium provision from the end of

17 the last sentence. Plaintiffs’ counsel argued that the provision stating that the amount

18 of damages must not be influenced by “the loss of the deceased’s society to the



                                               6
 1 family” was inconsistent with the numbered provision that permitted the jury to award

 2 damages for loss of consortium. In making this argument, Plaintiffs did not refer the

 3 district court to the Use Note for UJI 13-1830. The district court denied Plaintiffs’

 4 request to remove the provision because it was “part of the stock instruction.”

 5   {11}   Plaintiffs also drafted the special verdict form that was given to the jury. The

 6 special verdict form provided five separate lines for jury findings of total damages

 7 suffered by (1) “Virginia Saenz, Individually”; (2) “Robin Brandy Saenz”; (3)

 8 “Marcus Anthony Saenz”; (4) “Jason Ray Saenz”; and (5) “the Estate of Charles

 9 Anthony Saenz.” The special verdict form did not break out the various elements of

10 damages enumerated in Instruction No. 17. See UJI-13-1830, Use Note (explaining

11 that “various elements of damages can be broken out separately on the special verdict

12 form if the court determines that there is a need to do so in order to identify damages

13 recoverable by the estate, by the statutory beneficiaries and by the surviving spouse

14 . . . for loss of consortium”).

15   {12}   During its deliberations, the jury sent a note to the district court, indicating that

16 the jury was unsure how to fill out the special verdict form. The jury asked, “Does

17 ‘total amount of damages to the Estate of Charles Saenz’ include all amounts awarded

18 to Virginia, Robin and sons, or is it meant to be a separate amount?” The district



                                                  7
 1 court judge discussed the note with counsel. Plaintiffs’ counsel explained that the

 2 estate line on the verdict form was “obviously . . . asking for the value of the life of

 3 Charles Saenz, which is a different damage amount than the other individual

 4 plaintiffs,” and suggested that the district court could answer “Yes.” The district

 5 court judge responded, “Well, the problem is another question will probably come

 6 back, and that will be, What is the estate entitled to? I’m looking at the damages

 7 instruction for wrongful death, and I am not quite sure if it itemizes the damages for

 8 the estate.” The district court suggested answering that “it is separate and please refer

 9 back to the damages instruction.” The parties stipulated that the district court should

10 answer, “The ‘total amount of damages to the Estate of Charles Saenz’ is separate.”

11   {13}   About fifty minutes later, the jury returned a special verdict in Plaintiffs’ favor

12 that awarded compensatory and punitive damages. The district court read the special

13 verdict form aloud in open court. The jury assigned 45% of the fault to Ranack; 30%

14 of the fault to Tony’s employer, a steel erection subcontractor that is not a party to

15 this appeal; and 25% of the fault to Tony himself. Regarding compensatory damages,

16 the jury awarded $482,000 to Virginia Saenz, individually; $50,000 to Tony’s minor

17 daughter Robin; and $25,000 each to Tony’s adult sons Marcus and Jason. The jury

18 entered “$0” on the line for “damages suffered by the Estate of Charles Anthony



                                                 8
 1 Saenz.” The jury also awarded $10,000 in punitive damages to each of the individual

 2 plaintiffs, but the jury entered “$0” on the line for punitive damages to the estate.

 3 The district court polled the jury at Plaintiffs’ request, and the jurors indicated that

 4 the verdict was unanimous. The district court discharged the jury without objection

 5 from either party.

 6   {14}   About two weeks later, Plaintiffs filed a motion seeking a new trial on the

 7 ground that the jury’s award of zero dollars to the estate was not supported by

 8 substantial evidence. At a post-trial motion hearing, Plaintiffs suggested that the jury

 9 may have been confused by Instruction No. 17’s use of the phrase “Estate of Charles

10 Anthony Saenz.” The district court judge agreed that the jury may have been

11 confused, noting that Instruction No. 17 and the verdict form appeared to refer to two

12 different things. Specifically, Instruction No. 17 directed the jury to assign a value

13 to the decedent’s life, while the special verdict form provided a line for the jury to

14 award damages to the decedent’s estate. The judge concluded that although

15 Instruction No. 17 may have been confusing or incorrect, Plaintiffs may have waived

16 the right to object because Plaintiffs submitted the instruction. The judge observed

17 that when the jury asked a question about the special verdict form, the parties failed

18 to explain how to award damages for the value of the decedent’s life. The judge



                                              9
 1 concluded that although the jury may have “felt, for whatever reason, that the value

 2 of life was zero[,] . . . I can’t, as a Judge, go back behind the mind of the jury and try

 3 to figure out what it was that they were thinking.” The district court denied Plaintiffs’

 4 motion for a new trial, explaining that “the issue about the estate and the value of

 5 life” would need to be resolved on appeal.

 6   {15}   On appeal to the Court of Appeals, Plaintiffs argued that “jury confusion

 7 arising from conflicting instructions as to loss of consortium may have led the jury

 8 to mistakenly award to [Virginia Saenz] and to Saenz’s children damages that should

 9 have been awarded to the estate.”         Estate of Saenz ex rel. Saenz v. Ranack

10 Constructors, Inc., 2015-NMCA-113, ¶ 14, 362 P.3d 134, cert. granted 2015-

11 NMCERT-010. The Court of Appeals recognized that Instruction No. 17 erroneously

12 included the two conflicting loss-of-consortium provisions, contrary to the Use Note

13 for UJI 13-1830. Saenz, 2015-NMCA-113, ¶¶ 44-46. But the Court of Appeals

14 declined to reverse based on this error because Plaintiffs had failed to demonstrate

15 prejudice. Id. ¶¶ 46-49.

16   {16}   Alternatively, Plaintiffs argued in the Court of Appeals “that the zero damages

17 award to the estate was not supported by substantial evidence.” Id. ¶ 14. Ranack

18 countered that Plaintiffs had waived their claim of insufficient evidence by failing to



                                              10
 1 raise it before the jury was discharged. See id. ¶ 50. The Court of Appeals relied on

 2 case law from other states to conclude that the waiver rule “applies only to challenges

 3 of a jury verdict based on inconsistency, ambiguity, or indefiniteness” and not “to

 4 motions for a new trial based on a lack of substantial evidence under Rule 1-059

 5 NMRA.” Id. ¶¶ 50-53. The Court of Appeals held that the award of zero damages

 6 to the estate was not supported by substantial evidence and remanded this case to the

 7 district court “for a new trial as to damages to the estate only.” Id. ¶ 58. Judge

 8 Jonathan B. Sutin dissented on this issue, concluding that Plaintiffs waived the

 9 opportunity to challenge the award of zero dollars to the estate because their

10 “litigation approach or failures” caused the alleged error in the verdict and they failed

11 to raise their claim of error prior to the jury’s discharge. Id. ¶ 74 (Sutin, J.,

12 concurring in part and dissenting in part).

13   {17}   Ranack filed a petition for writ of certiorari, asking this Court to consider

14 whether the Court of Appeals erred by granting Plaintiffs a new trial on damages to

15 the estate after Plaintiffs brought about and failed to resolve an ambiguity in the

16 verdict concerning the allocation of damages between individual loss-of-consortium

17 claimants and the personal representative of the wrongful death estate. We granted

18 certiorari under NMSA 1978, Section 34-5-14(B) (1972) and Rule 12-502 NMRA,



                                              11
 1 and we reverse the Court of Appeals on this issue.

 2 II.      DISCUSSION

 3   {18}   The sole issue on appeal is whether the district court abused its discretion by

 4 denying Plaintiffs’ motion for a new trial. This issue requires us to determine

 5 whether Plaintiffs should be permitted to challenge the jury verdict on substantial

 6 evidence grounds or whether Plaintiffs waived the right to challenge the verdict.

 7 A.       Standard of Review

 8   {19}   The district “court has broad discretion in granting or denying a motion for new

 9 trial, and such an order will not be reversed absent clear and manifest abuse of that

10 discretion.” Rhein v. ADT Auto., Inc., 1996-NMSC-066, ¶ 18, 122 N.M. 646, 930

11 P.2d 783 (internal quotation marks and citation omitted). Although we defer to the

12 district court’s ruling on a motion for a new trial, the district court does not have

13 unrestricted authority to grant a new trial. See id. ¶¶ 18, 23. If a party seeks a new

14 trial based on a claim of insufficient evidence, the district court may grant the motion

15 only “when [the] jury’s verdict is so against the weight of evidence that it would be

16 a grave injustice to allow the verdict to stand.” Id. ¶ 24.

17   {20}   To evaluate whether the district court abused its discretion in this case, we must

18 determine whether Plaintiffs waived their claim of error, which is a legal question that


                                                12
 1 we review de novo.          See Mem’l Med. Ctr., Inc. v. Tatsch Constr., Inc.,

 2 2000-NMSC-030, ¶ 20, 129 N.M. 677, 12 P.3d 431 (“When reviewing the decision

 3 of a district court, this Court must be deferential to findings of fact by the court, but

 4 we review conclusions of law de novo.”). In considering whether the district court

 5 has abused its discretion, we consider the entire record and all of the circumstances

 6 surrounding the district court’s decision. See Martinez v. Ponderosa Prods., Inc.,

 7 1988-NMCA-115, ¶¶ 4-5, 108 N.M. 385, 772 P.2d 1308.

 8 B.       Plaintiffs Waived Their Claim of Insufficient Evidence by Contributing to
 9          Ambiguity in the Verdict and Failing to Object to the Verdict or Seek
10          Clarification of the Jury’s Intent Prior to the Jury’s Discharge

11   {21}   Ranack argues that the district court properly denied Plaintiffs’ motion for a

12 new trial. Ranack asserts that Plaintiffs’ litigation approach created ambiguity in the

13 verdict with respect to the allocation of damages between Virginia Saenz’s individual

14 loss-of-consortium damages and the wrongful death damages she received as personal

15 representative for the estate. Ranack contends that Plaintiffs waived their right to

16 challenge the verdict on appeal because they failed to resolve the ambiguity before

17 the jury was discharged. Finally, Ranack argues that by upholding the individual

18 damages but remanding for a new trial on damages to the estate, the Court of Appeals

19 set up a situation that likely will result in Plaintiffs receiving duplicate damages.


                                              13
 1   {22}   Plaintiffs, on the other hand, contend that the jury was adequately informed of

 2 the nature of the damages sought and the distinctions between the loss-of-consortium

 3 damages, which should have been awarded to the individual plaintiffs, and the

 4 wrongful death damages, which should have been awarded to the estate. Plaintiffs

 5 argue that the district court abused its discretion by denying their motion for a new

 6 trial, relying on Jones v. Pollock, 1963-NMSC-116, ¶ 12, 72 N.M. 315, 383 P.2d 271

 7 (“[W]here it is shown . . . that the verdict of the jury on the question of damages is

 8 clearly not supported by substantial evidence adduced at the trial of the case, a motion

 9 for a new trial should be granted, and not to do so is an abuse of discretion by the

10 court.”).

11   {23}   As a general rule, “the right to object to an improper verdict is waived when

12 not made at the time of the return of the verdict and cannot be reclaimed and revived

13 by resorting to a motion for a new trial or on appeal.” Thompson Drilling, Inc. v.

14 Romig, 1987-NMSC-039, ¶ 11, 105 N.M. 701, 736 P.2d 979. Our appellate courts

15 have applied this waiver rule in situations where the jury verdict was indefinite,

16 inconsistent, or ambiguous and the complaining party had an opportunity to challenge

17 the verdict prior to the jury’s discharge but failed to do so. See id. ¶¶ 5, 11 (applying

18 the waiver rule to party’s claim that the verdict was ambiguous and indefinite); see


                                              14
 1 also Helena Chem. Co. v. Uribe, 2013-NMCA-017, ¶ 29, 293 P.3d 888 (declining to

 2 apply the waiver rule because the parties lacked “notice of and an opportunity to

 3 object to any perceived inconsistencies in the verdicts”); Guest v. Allstate Ins. Co.,

 4 2009-NMCA-037, ¶ 36, 145 N.M. 797, 205 P.3d 844 (concluding that Allstate

 5 waived the right to challenge inconsistencies in the verdict because the verdict was

 6 “read aloud by the judge,” the jury was “polled at Allstate’s request,” and Allstate

 7 failed “to bring the matter to the trial court’s attention before the jury was

 8 discharged”), rev’d in part on other grounds, 2010-NMSC-047, 149 N.M. 74, 244

 9 P.3d 342; G & G Servs., Inc. v. Agora Syndicate, Inc., 2000-NMCA-003, ¶ 41, 128

10 N.M. 434, 993 P.2d 751 (“A litigant who fails to object to an alleged inconsistency

11 in a jury’s verdict before the jury is dismissed may be held to have waived any further

12 challenge to the alleged inconsistency.”).

13   {24}   Where a party contributes to ambiguity in the verdict and fails to take steps to

14 cure the ambiguity before the jury is discharged, it is appropriate to apply the waiver

15 rule. For example, in Ramos v. Rodriguez, the Court of Appeals applied the waiver

16 rule to reject a third-party plaintiff’s argument that an inadequate special verdict form

17 resulted in an inconsistent jury verdict. See 1994-NMCA-110, ¶ 13, 118 N.M. 534,

18 882 P.2d 1047. The district court read the jury verdict aloud in open court and polled


                                               15
 1 the jurors at the third-party plaintiff’s request to confirm their agreement. Id. ¶ 6.

 2 The district court then entered judgment denying the third party plaintiff’s claims.

 3 Id. ¶ 7. Six days later, the third-party plaintiff filed a motion for a new trial, arguing

 4 that there was an inconsistency in the verdict. Id. ¶ 6. The district court denied the

 5 motion. Id. On appeal, the third-party plaintiff complained that the district court

 6 caused inconsistency in the verdict by omitting necessary instructions from the

 7 special verdict form. See id. ¶¶ 9-10. The Court of Appeals held that the third-party

 8 plaintiff waived any objection to the verdict by failing to object to the perceived

 9 inadequacies in the verdict form before it was submitted to the jury and failing to

10 request that the jury resolve the alleged inconsistency at the time the verdict was

11 returned. Id. ¶¶ 12-13.

12   {25}   The waiver rule similarly precluded a party’s challenge to an ambiguous jury

13 verdict in Diversey Corp. v. Chem-Source Corp., 1998-NMCA-112, ¶¶ 36-40, 125

14 N.M. 748, 965 P.2d 332. The jury awarded the defendants “$128,500 for tortious

15 interference with . . . contractual relations ‘and/or’ $385,500 for violation of the

16 Unfair Practices Act.” Id. ¶ 1 (emphasis added). On appeal, the plaintiff argued that

17 the “and/or” language on the verdict form rendered the jury’s verdict ambiguous and

18 resulted in the defendant receiving double recovery for a single injury. Id. ¶ 36.


                                               16
 1 Although there appeared to be an error in the verdict form, the Court of Appeals

 2 declined to reverse the jury’s award because the parties stipulated to the inclusion of

 3 the “and/or” language on the verdict form and the plaintiff failed to object to the

 4 verdict at trial. Id. ¶¶ 36-37.

 5   {26}   In this case, Plaintiffs acknowledged in the district court and the Court of

 6 Appeals that Instruction No. 17 may have been confusing, resulting in an unclear

 7 verdict. But in this Court, Plaintiffs advance only their claim of insufficient evidence,

 8 which they argue was properly raised by motion for a new trial. Plaintiffs argue that

 9 there is an important distinction between a defect on the face of the verdict, which can

10 be corrected if brought to the district court’s attention before the jury is discharged,

11 and a substantive error indicating that the jury has disregarded the instructions and

12 evidence, which may be raised in a motion for a new trial.

13   {27}   Ranack agrees with Plaintiffs that New Mexico law does not require a party to

14 challenge the sufficiency of the evidence underlying a damages award before the jury

15 is discharged, and Ranack does not ask this Court to adopt such a rule. Ranack

16 argues, however, that the waiver rule articulated in Thompson Drilling and

17 subsequent cases should apply to Plaintiffs’ claim of insufficient evidence in this case

18 because Plaintiffs’ actions and inaction at trial culminated in an ambiguous jury


                                              17
 1 verdict. We agree.

 2   {28}   First, Plaintiffs submitted a wrongful death damages instruction and a special

 3 verdict form that were likely to confuse the jury about how to allocate damages

 4 between the individual loss-of-consortium claimants and the wrongful death estate.

 5 Plaintiffs modified this Court’s wrongful death damages instruction, UJI 13-1830, to

 6 provide that Virginia Saenz was bringing this case individually and on behalf of the

 7 estate. As a result, a reasonable jury could have interpreted Instruction No. 17 “to say

 8 that Virginia Saenz was entitled to one recovery encompassing both her individual

 9 and representative capacities.” Saenz, 2015-NMCA-113, ¶ 78 (Sutin, J., concurring

10 in part and dissenting in part). Compounding the potential for confusion, the special

11 verdict form did not break out the elements of damages enumerated in Instruction No.

12 17, as suggested in the Use Note for UJI 13-1830, and neither Instruction No. 17 nor

13 the special verdict form explained how the jury should allocate the enumerated

14 elements of damages between the individual claimants and the estate.

15   {29}   Second, when the jury asked a question during deliberations indicating that the

16 jury was confused about the special verdict form, Plaintiffs failed to suggest a

17 response that would assist the jury in allocating damages.

18   {30}   And third, Plaintiffs had an opportunity to object to the verdict or to seek


                                              18
 1 clarification of the jury’s intent before the jury was discharged but failed to do so.

 2 As in Ramos, 1994-NMCA-110, ¶ 6, the district court read the ambiguous jury verdict

 3 aloud in open court and polled the jury at Plaintiffs’ request. If Plaintiffs had raised

 4 their claim of error before the jury was excused, the district court could have clarified

 5 the jury’s intent through further instruction and interrogatory.           See Diversey,

 6 1998-NMCA-112, ¶ 39 (explaining that a timely objection allows the district “court

 7 to send the jury back to the jury room to clarify its verdict, thereby correcting any

 8 error”). Additionally, a timely “objection would have developed the record (by

 9 adding argument of counsel, by sending the jury back to clarify the verdict, or by

10 allowing the court to poll the jurors concerning the verdict), so that this Court could

11 perform an informed review.” Id.

12   {31}   As the district court recognized at the post-trial motion hearing, the verdict was

13 susceptible to more than one interpretation.           One possibility is that the jury

14 intentionally awarded zero damages for the value of the decedent’s life and his future

15 earning capacity.       Another possibility is that the jury “concluded from the

16 instructions, the special verdict form, and the lack of any explanation to the jury by

17 Plaintiff, that its award of $482,000 properly included all of the compensation for

18 ‘Virginia Saenz, Individually and on behalf [of] the estate.’” Saenz, 2015-NMCA-


                                                19
 1 113, ¶ 78 (Sutin, J., concurring in part and dissenting in part). This second possibility

 2 appears to be more consistent with the evidence of wrongful death damages at trial,

 3 including Virginia’s testimony that Tony was in excellent health and could have

 4 earned $450,000 if he had worked at his current job until the age of seventy. But on

 5 appeal we can only speculate about what the jury intended.

 6   {32}   We conclude that Plaintiffs waived their claim of error by contributing to

 7 ambiguity in the verdict and by failing to object or seek clarification of the jury’s

 8 intent prior to the jury’s discharge. Because the jury verdict was ambiguous, the

 9 district court could not fairly evaluate whether the verdict was “so against the weight

10 of evidence that it would be a grave injustice to allow the verdict to stand.” Rhein,

11 1996-NMSC-066, ¶ 24. We hold, based on all of the circumstances surrounding the

12 district court’s decision, that the district court did not abuse its discretion by denying

13 Plaintiffs’ motion for a new trial.

14 C.       The Out-of-State Cases on Which the Court of Appeals Majority Relied
15          Are Inapplicable to this Case

16   {33}   The Court of Appeals majority relied on several opinions from other states to

17 explain why it declined to apply the waiver rule to Plaintiffs’ claim of insufficient

18 evidence. See Saenz, 2015-NMCA-113, ¶¶ 51-53. The out-of-state cases cited by the

19 Court of Appeals are distinguishable from this case. In each of those cases, the jury

                                               20
 1 returned a complete, unambiguous verdict that included awards of zero damages for

 2 some claimants or elements despite evidence of damages at trial, and the plaintiff

 3 raised a substantive objection to the amount awarded. None of the out-of-state cases

 4 involved a verdict that was susceptible to more than one reasonable interpretation due

 5 to ambiguity created and perpetuated by the plaintiff.

 6   {34}   For example, in State ex rel. Valley Radiology, Inc. v. Gaughan, 640 S.E.2d

 7 136, 137 (W. Va. 2006), the estate of a deceased patient brought a wrongful death

 8 action alleging that Valley Radiology failed to timely diagnose blood clotting,

 9 resulting in the patient’s untimely death. The jury, which had exhibited signs of bias

10 during voir dire, awarded zero damages for sorrow, mental anguish, and lost income.

11 Id. at 138-39. Within two weeks after the verdict, the estate moved for a new trial on

12 the ground that the verdict was inadequate. Id. at 139. The trial court granted the

13 motion, finding that the verdict was the result of juror prejudice and that it would not

14 be “‘practical to send the same jurors back to consider the issue of damages because

15 there was almost no chance they could return a fair verdict.’” Id. at 139, 141. Valley

16 Radiology argued in the Supreme Court of Appeals of West Virginia that the estate

17 waived the right to challenge the verdict by failing to object prior to the jury’s

18 discharge. Id. at 139-40. The appellate court disagreed and declined to apply the


                                              21
 1 waiver rule because “there was no confusion as to what the jury intended to award.”

 2 Id. at 140. The appellate court explained that

 3          the objective that underlies the general rule of requiring that an
 4          objection to the verdict form must be made prior to the jury’s discharge
 5          is to provide the trial court with an opportunity to “cure” any alleged
 6          defect or irregularity in the form prepared by the jury. No similar
 7          opportunity to cure is required for an inadequate award of damages.
 8          This is because a request for a new trial based on the inadequacy of
 9          damages is not a procedural objection to the verdict form, but a
10          substantive objection to the amount of damages awarded in view of the
11          evidence presented and the findings of the jury as to fault.

12 Id. at 141 (footnote omitted).

13   {35}   In Kava v. American Honda Motor Co., 48 P.3d 1170, 1173 (Alaska 2002), the

14 jury awarded damages to two beneficiaries of a wrongful death estate but awarded

15 zero damages to the remaining three beneficiaries. After the jury had been dismissed,

16 the estate moved for a new trial. Id. The trial court viewed the evidence in the light

17 most favorable to the defendant and denied the estate’s motion. See id. at 1176. The

18 Alaska Supreme Court reversed, explaining that the trial court had applied the wrong

19 standard and that “[o]n remand, the trial court should use its discretion and

20 independently weigh the evidence to determine whether the verdict is against the

21 weight of the evidence.” Id. at 1177. The appellate court rejected the defendant’s

22 contention “that the estate waived any right to a new trial by failing to challenge the


                                              22
 1 jury verdict as legally inconsistent before the jury was discharged.” Id. The appellate

 2 court explained that the waiver rule does not preclude a party from moving “for a new

 3 trial on the discretionary ground that the verdict was against the weight of the

 4 evidence” or “from arguing the apparent inconsistency of the verdicts as a factor that

 5 the trial court could consider” when ruling on the motion. Id.

 6   {36}   In Clay v. Choctaw Nation Care Center, LLC, 2009 OK CIV APP 35, ¶ 1, 210

 7 P.3d 855, 856-57, the jury found a nursing home liable for a resident’s death but

 8 awarded zero damages to the resident’s estate. The estate filed a motion for a new

 9 trial on damages, which the district court granted. Id. ¶ 8. On appeal, the Court of

10 Civil Appeals of Oklahoma held that the district court properly granted a new trial

11 because the award of zero damages was inconsistent with uncontroverted evidence

12 of damages at trial and was therefore inadequate as a matter of law. Id. ¶¶ 17-21.

13 The appellate court rejected the nursing home’s argument that the estate should have

14 challenged the verdict before the jury was discharged. Id. ¶¶ 18, 20. The appellate

15 court made a distinction between a challenge to a confusing, irregular, or incorrect

16 verdict, which must be raised prior the jury’s discharge, and a challenge to the

17 substance of a verdict, which may be raised in a motion for a new trial. Id. ¶ 20.

18   {37}   Finally, in Cooper v. Fultz, 812 S.W.2d 497, 498 (Ky. 1991), abrogated on


                                             23
 1 other grounds by Cooper Industries, Inc. v. Leatherman Tool Group Inc., 532 U.S.

 2 424 (2001), the jury found the defendant partly liable for injuring the plaintiff in a

 3 vehicle collision but awarded zero damages for pain and suffering. The trial court

 4 denied the plaintiff’s motion for a new trial on the ground that the plaintiff had failed

 5 to object when the verdict was returned. Id. On appeal, the Supreme Court of

 6 Kentucky held that the waiver rule does not apply to a complete verdict that specifies

 7 the jury’s “deliberate intention to make no award for one (or more) elements of

 8 damages.” Id. at 499. The appellate court explained that if a jury “has flatly decided

 9 that the claimant’s pain and suffering is worth nothing,” it would be a “‘booby trap’”

10 to ask the jury to reconsider and to replace the zero with a dollar amount. Id. at 499-

11 500. The appellate court concluded that if a hostile jury deliberately awards zero

12 damages, the verdict “should be subject to a motion for a new trial which should be

13 granted unless there is countervailing evidence such that the jury’s verdict, taken as

14 a whole, withstands the test of inadequacy.” Id. at 500.

15   {38}   These out-of-state cases stand for the proposition that if the jury returns a

16 complete, unambiguous verdict, a party may raise a substantive objection to the size

17 of the damages award in a motion for a new trial. See Kava, 48 P.3d at 1177; Cooper,

18 812 S.W.2d at 500-01; Clay, 2009 OK CIV APP 35, ¶ 20; Valley Radiology, 640


                                              24
 1 S.E.2d at 141. As the courts recognized in Valley Radiology, 640 S.E.2d at 140-41,

 2 and Cooper, 812 S.W.2d at 499-500, if the verdict clearly reflects the jury’s deliberate

 3 intention to award zero damages despite evidence to the contrary, it does not advance

 4 judicial economy or fundamental fairness to ask the jury to correct the verdict. But

 5 when the jury verdict is confusing, ambiguous, or incomplete, the parties have an

 6 obligation to timely object so that the trial court can take steps to cure any errors in

 7 the verdict and clarify the jury’s intent before the jury is discharged. See Valley

 8 Radiology, 640 S.E.2d at 141.

 9   {39}   In this case, the verdict was ambiguous. It is unclear whether the jury’s award

10 of zero damages to the estate accurately reflected the jury’s intent or whether the jury

11 mistakenly awarded wrongful death damages to the individual claimants. It is

12 appropriate to apply the waiver rule to Plaintiffs’ claim of insufficient evidence

13 because Plaintiffs contributed to ambiguity in the verdict and failed to object or seek

14 clarification of the jury’s intent prior to the jury’s discharge.

15 D.       The Appeal Before This Court Does Not Present a Claim of Jury
16          Instruction Error

17   {40}   To avoid any implication to the contrary, we emphasize that neither party raises

18 a claim of jury instruction error before this Court. Plaintiffs do not challenge the

19 Court of Appeals conclusion that Plaintiffs were not prejudiced by the erroneous

                                               25
 1 inclusion of inconsistent loss-of-consortium provisions in Instruction No. 17. The

 2 unchallenged jury instructions are therefore the law of the case. See Haaland v.

 3 Baltzley, 1990-NMSC-086, ¶ 14, 110 N.M. 585, 798 P.2d 186.

 4   {41}   Although the appeal before this Court does not present a claim of jury

 5 instruction error, it appears that the jury instructions and special verdict form in this

 6 case contributed to juror confusion. We request that the Uniform Jury Instructions-

 7 Civil Committee consider whether amendments to the current version of UJI 13-1830

 8 are warranted to ensure that jurors understand how to allocate damages between the

 9 personal representative for the wrongful death estate and the individual claimants, if

10 any. We also ask the Committee to consider whether a new special verdict form

11 should be adopted for use in wrongful death cases.

12 III.     CONCLUSION

13   {42}   We reverse the Court of Appeals’ holding that Plaintiffs are entitled to a new

14 trial on the issue of damages to the estate. We affirm the district court’s denial of

15 Plaintiffs’ motion for a new trial, and we affirm the district court judgment.

16   {43}   IT IS SO ORDERED.



17                                          ___________________________________
18                                          PETRA JIMENEZ MAES, Justice

                                              26
1 WE CONCUR:



2 _________________________________
3 JUDITH K. NAKAMURA, Chief Justice



4 _________________________________
5 CHARLES W. DANIELS, Justice



6 _________________________________
7 BARBARA J. VIGIL, Justice




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