{ "id": 1588575, "name": "John BUDAGHER and Frances D. Budagher, his wife, Plaintiffs-Appellees, v. AMREP CORPORATION, dba Rio Rancho Estates, Inc., Defendants-Appellants", "name_abbreviation": "Budagher v. Amrep Corp.", "decision_date": "1983-04-12", "docket_number": "No. 5893", "first_page": "167", "last_page": "173", "citations": [ { "type": "official", "cite": "100 N.M. 167" }, { "type": "parallel", "cite": "667 P.2d 972" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "99 N.M. 140", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1584648 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/99/0140-01" ] }, { "cite": "98 N.M. 768", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582431 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/nm/98/0768-01" ] }, { "cite": "93 N.M. 708", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568664 ], "weight": 3, "year": 1980, "opinion_index": 0, "case_paths": [ "/nm/93/0708-01" ] }, { "cite": "92 N.M. 450", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1557035 ], "weight": 3, "year": 1979, "opinion_index": 0, "case_paths": [ "/nm/92/0450-01" ] }, { "cite": "78 N.M. 529", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5326479 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/78/0529-01" ] }, { "cite": "48 N.M. 92", "category": "reporters:state", "reporter": "N.M.", "pin_cites": [ { "page": "94" } ], "opinion_index": 0 }, { "cite": "48 N.M. 84", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1560822 ], "weight": 4, "year": 1944, "opinion_index": 0, "case_paths": [ "/nm/48/0084-01" ] }, { "cite": "55 N.M. 353", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582941 ], "weight": 2, "year": 1951, "opinion_index": 0, "case_paths": [ "/nm/55/0353-01" ] }, { "cite": "157 P. 167", "category": "reporters:state_regional", "reporter": "P.", "year": 1916, "opinion_index": 0 }, { "cite": "21 N.M. 531", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2386399 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/nm/21/0531-01" ] }, { "cite": "76 N.M. 501", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8503349 ], "weight": 4, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0501-01" ] }, { "cite": "93 N.M. 755", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568716 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/93/0755-01" ] }, { "cite": "97 N.M. 116", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555174 ], "weight": 4, "year": 1981, "opinion_index": 0, "case_paths": [ "/nm/97/0116-01" ] }, { "cite": "78 N.M. 556", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5323899 ], "weight": 2, "year": 1967, "opinion_index": 1, "case_paths": [ "/nm/78/0556-01" ] }, { "cite": "85 N.M. 615", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2773232 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/85/0615-01" ] }, { "cite": "93 N.M. 73", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568697 ], "weight": 2, "year": 1979, "opinion_index": 1, "case_paths": [ "/nm/93/0073-01" ] } ], "analysis": { "cardinality": 818, "char_count": 17443, "ocr_confidence": 0.773, "pagerank": { "raw": 9.910179922202724e-08, "percentile": 0.5357756378846797 }, "sha256": "064b6e1958186b3d1ef69b15d065fe123d517a5b2d0083f68a577cdca3f7d301", "simhash": "1:b73cae0dd7a4f1bb", "word_count": 2830 }, "last_updated": "2023-07-14T21:45:38.267108+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "WALTERS, C.J., concurs.", "LOPEZ, J., dissenting." ], "parties": [ "John BUDAGHER and Frances D. Budagher, his wife, Plaintiffs-Appellees, v. AMREP CORPORATION, dba Rio Rancho Estates, Inc., Defendants-Appellants." ], "opinions": [ { "text": "OPINION\nNEAL, Judge.\nThe defendants contend that reversible error was committed when the plaintiffs\u2019 requested instructions were inadvertently submitted to the jury for the first hour of its deliberation. We agree, and reverse.\nThe case, first tried in 1980, concerns the plaintiffs\u2019 claim that the defendants, Amrep Southwest, Inc. and Amrep Corporation, negligently controlled runoff, which caused flood damage to the plaintiff\u2019s 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 Am-rep Corporation and $100,000.00 against Amrep Southwest, Inc. The jury found the defendants 95% negligent, and the plaintiffs 5% negligent; plaintiffs\u2019 compensatory damage award was $48,507.00.\nThe 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\u2019 strongest argument, and the one on which we base our reversal, concerns the inadvertent submission of the plaintiffs\u2019 requested instructions to the jury. Because of our disposition of this point we need not consider the award of damages or the trial court\u2019s refusal to dismiss Amrep Corporation.\nFactual Background\nAt 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\u2019s jury instructions, but inadvertently picked up the plaintiffs\u2019 requested instructions, and took them into the jury room. At noon the jury went to lunch.\nWhile 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.\nThe 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 \u201cyes\u201d answers to three questions. We do not know if the answers represent the views of all of the jurors.\nSPECIAL INTERROGATORIES FOR THE JURY\nQUESTION NO. 1: Do you find from the evidence that Defendant AMREP Corporation was guilty of negligence which was a proximate cause of the Plaintiffs\u2019 injuries?\nANSWER: (YES or NOl Yes.\nQUESTION NO. 2: Do you find from the evidence that Defendant AMREP Southwest, Inc. was guilty of negligence which was a proximate cause of the Plaintiffs\u2019 injuries?\nANSWER: (YES or NOl Yes.\nQUESTION NO. 3: Do you find from the evidence that Plaintiffs were guilty of negligence which was a proximate cause of the Plaintiffs\u2019 injuries?\nANSWER: (YES or NOl Yes.\nQuestion number 4, not answered, concerned allocation of negligence between the parties.\nAfter 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:\nTHE COURT: Can we do this, can we go in \u2014 they have the original set now, the proper set \u2014 and tell them that if they can disregard those things?\nMR. ROEHL [defense counsel]: That\u2019s fine with me.\nThe plaintiffs\u2019 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\u2019 counsel, Mr. Morgan, had filled in the special interrogatories. Mr. Morgan said that he had not. Then:\nMr. 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\u2019s Instructions and continue with this event.\nThe judge, contemplating the possibility of a mistrial, stated that \u201cwithout making any decision, we\u2019ll go in there [the jury room] and make some inquiries and reserve some decision * * *.\u201d The judge further stated that he would not make any decision until the verdict was in.\nThe 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.\nCounsel and the judge returned to the judge\u2019s chambers.\nTHE COURT: All right. Now, after asking the jurors the questions that we did, is there any alteration of the prior position that you have taken?\nMR. MORGAN: No, sir.\nMR. ROEHL: Gee \u2014 this is tough.\nThe judge then discussed possible prejudice, and noted that the jury appeared to have gone through the instructions because Instruction No. 24 was open on the desk. Mr. Roehl then said that before making his decision he wanted to call the insurance carrier, and the judge allowed him to do so.\nThe next morning the jury continued to deliberate, and counsel and the judge met in the judge\u2019s chambers. The judge said:\n\u201c * * * [ijt\u2019s 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.\u201d\nThe 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.\nPRESERVATION OF ERROR\nThe plaintiffs contend that the defendants agreed to the judge\u2019s questioning of the jury and have waived any. error. Under the circumstances we do not believe that the defendants waived any claim of error.\nThe 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 \u201cwait-and-see\u201d approach, suspending a mistrial decision until May 12. On May 12, when asked for his position, defendants\u2019 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\u2019s mistrial motion was enough to preserve the error.\nTHE ERROR\nFor roughly the first hour of its deliberation the jury had the plaintiffs\u2019 requested instructions. Each of the instructions had \u201cPlaintiffs\u2019 Requested Instruction No. -\u201d 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, \u201cBudagher v. Amrep Corporation [97 N.M. 116], 637 P.2d 547 (N.M.1981).\u201d One instruction had a citation to another case against the defendants, \u201cGutierrez v. Rio Rancho Estates, Inc., 93 N.M. 755, 605 P.2d 1154\u201d.\nOther errors and omissions are more significant. Plaintiffs\u2019 requested instruction number 21, concerning punitive damages, had the word \u201cor\u201d underlined twice: \u201c * * * 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.\u201d\nEqually as important as what the jury saw on the plaintiffs\u2019 instructions is what they did not see in the first hour. Defendants\u2019 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\u2019 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\u2019 requested instruction number 2, \u201cA corporation is entitled to fair treatment. * * * \u201d and number 15, which defined contributory negligence.\nThere 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.\nIn Scott v. Brown, 76 N.M. 501, 416 P.2d 516 (1966) the trial judge wrote \u201crefused\u201d on one of the instructions, and signed his name below it. Realizing that he intended to give the instruction the judge then struck \u201crefused\u201d and wrote \u201cgiven\u201d. 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.\nIn 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\u2019s attorneys, and the defendant claimed that this demonstrated \u201can unwarranted confidence\u201d between the plaintiff\u2019s 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 is slight compared to the error in the present case.\nDollarhide v. Gunstream, 55 N.M. 353, 233 P.2d 1042 (1951), deals with improper material in the jury room. In Dollarhide the plaintiff claimed that the submission of pleadings to the jury was error. The Supreme Court rejected this argument noting that there was \u201cno direct evidence that the objectionable pleading ever reached the jury room or that it was considered by the jury.\u201d\nState v. Beal, 48 N.M. 84, 146 P.2d 175 (1944), is more helpful. In Beal the defendant claimed that exhibits were sent to the jury without the knowledge or presence of defendant\u2019s counsel. The Supreme Court reversed, but what is important is the standard used to evaluate prejudice in a case dealing with improper communications with the jury. The court adopted a \u201cpresumption of prejudice\u201d test:\nIn the case at bar there is nothing in the record to indicate that the communication did not affect the verdict. The burden as upon appellee to establish this fact and having failed to meet this requirement the presumption of prejudicial error must prevail.\n******\n\u201c[Wjhere error occurs which, within the range of a reasonable possibility, may have affected the verdict of the jury, appellant is not required to explore the minds of the jurors in an effort to prove that it did in fact influence their verdict.\u201d\n48 N.M. 92, 94, 146 P.2d 175.\nIn improper communications with jury cases New Mexico case law since Beal, supra, has consistently applied the \u201cpresumption of prejudice\u201d test. State v. Gutierrez, 78 N.M. 529, 433 P.2d 508 (Ct.App.1967); State v. Orona, 92 N.M. 450, 589 P.2d 1041 (1979); State v. McCarter, 93 N.M. 708, 604 P.2d 1242 (1980); State v. Coulter, 98 N.M. 768, 652 P.2d 1219 (Ct.App.1982); and State v. Ho\u2019o, 99 N.M. 140, 654 P.2d 1040 (Ct.App.1982). These cases all hold that when there has been improper communication with the jury the party adversely affected benefits from a \u201cpresumption of prejudice\u201d which must be rebutted by the opposing party. The rule has been applied to various situations, with various results.\nIn Gutierrez, supra, while a juror was in the hall, someone brushed against her shoulder and told her \u201cto make a wise decision.\u201d Our Court, noting that the remark was not threatening, that the person making the remark was identified, and that the juror said she did not feel any undue influence, held that the presumption of prejudice was rebutted.\nIn Orona, supra, two notes were submitted by the judge to the jury in the absence of defense counsel. The Supreme Court held that the State made no attempt to rebut the presumption of prejudice, and reversed defendants\u2019 conviction. McCarter, supra, considered a \u201cshotgun\u201d instruction, and held that the State did not rebut the presumption of prejudice.\nCoulter, supra, and Ho\u2019o, supra, are recent decisions by our Court. Coulter considered whether the presence of the \u201cthirteenth juror\u201d in the jury room was reversible error. In Coulter the alternate was in the jury room for ten minutes. Judge Hendley discussed the four standards used in evaluating prejudice in that situation, and adopted the presumption of prejudice analysis because it was \u201cconsistent with the analysis applied in this state to other improper communications with jury cases * * Holding that the State made n\u00f3 showing to overcome the presumption, the defendant\u2019s conviction was reversed. In Ho\u2019o, supra, the prosecutors carried two mannequins into the jury room and told the jury how to pick one of the mannequins up so it would not come apart, and to lean the other mannequin against the wall. This was not reversible error.\nIn light of all of these cases it is clear that the error in the present case is serious. The presumption of prejudice against the defendants is supported by the record. Instructions that unduly emphasize any portion of the case should not be given, Scott, supra, yet plaintiffs\u2019 requested instruction 21 had the word \u201cor\u201d underlined twice: \u201cor grossly negligent.\u201d This unduly emphasized the plaintiffs\u2019 contention that punitive damages should be awarded for any number of reasons. The most glaring example of prejudice is the absence, for the first hour of the jury\u2019s deliberation, of defendants\u2019 instructions containing their defenses. The answers to the special interrogatories indicate that while the jury had the incorrect instructions it made preliminary decisions about the case. The other errors \u2014 a citation to another case against the defendants and citations to the previous appeal \u2014 are not as grievous, but considering the cumulative effect of the errors and omissions, the presumption of prejudice is amply supported.\nTo rebut the presumption the plaintiffs point out that the judge gave a curative instruction, and that, after receiving the correct instructions, the jury continued deliberating for approximately seven hours. This is insufficient to rebut the presumption of prejudice.\nWe hold that under the circumstances presented here, the defendants did not receive a fair trial. The submission of plaintiffs\u2019 requested instructions instead of the court\u2019s instructions which included defendants\u2019 requests, requires a new trial.\nIT IS SO ORDERED.\nWALTERS, C.J., concurs.\nLOPEZ, J., dissenting.", "type": "majority", "author": "NEAL, Judge." }, { "text": "LOPEZ, Judge,\ndissenting.\nI respectfully dissent.'\nThe majority base their reversal of this appeal upon the \u201cinadvertent submission of plaintiffs\u2019 requested instructions to the jury.\u201d\nThe majority opinion states \u201c[t]he 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.\u201d (Emphasis added.)\nOnly the jurors know what occurred inside their deliberation chamber. The jurors reported to the court that they could fairly decide the case, notwithstanding the inclusion of incorrect instructions. I believe that we should abide by what the jurors told the court.\nThe majority opinion concludes by stating that \u201c[w]e hold that under the circumstances presented here, the defendants did not receive a fair trial.\u201d I would agree with much of the majority\u2019s holding if I accepted the premise that the facts, circumstances and legal authorities can reasonably be read and interpreted only as they would do so. But I do not agree with that premise.\nMy conclusion is that there are other reasonable constructions and interpretations of the facts, circumstances and legal authorities applicable to the case at bar. The late Justice of the United States Supreme Court, Oliver Wendel Holmes, once said that the trial of a case is never perfect because it is conducted by human beings and not machines. Errors do frequently occur, and that is the reason why a motion for a mistrial or new trial is directed by law to the sound discretion of the trial judge. See also State v. Perrin, 93 N.M. 73, 596 P.2d 516 (1979); Hill v. Burnworth, 85 N.M. 615, 514 P.2d 1312 (Ct.App.1973).\nApplying the above principles to the case at bar, and considering all facts, circumstances and legal authorities, I conclude that the trial court did not abuse its discretion in denying defendant\u2019s mistrial and new trial motions.\nSince the majority has not addressed the issue of excessiveness of damages, I will only state my opinion that the award of damages was not excessive. See Lujan v. Reed, 78 N.M. 556, 434 P.2d 378 (1967).\nI would affirm the judgment of the trial court in all respects and order that the appellants pay the costs on appeal.", "type": "dissent", "author": "LOPEZ, Judge," } ], "attorneys": [ "Ronald C. Morgan, Albuquerque, for plaintiffs-appellees.", "Kenneth J. Ferguson, Robert G. McCorkle, Rodey, Dickason, Sloan, Akin & Robb, P.A., Jerrald J. Roehl, Jerrald J. Roehl & Associates, Albuquerque, I. Michael Bayda, Jacobs, Persinger & Parker, New York City, for defendants-appellants." ], "corrections": "", "head_matter": "667 P.2d 972\nJohn BUDAGHER and Frances D. Budagher, his wife, Plaintiffs-Appellees, v. AMREP CORPORATION, dba Rio Rancho Estates, Inc., Defendants-Appellants.\nNo. 5893.\nCourt of Appeals of New Mexico.\nApril 12, 1983.\nCertiorari Dismissed Aug. 10, 1983.\nRonald C. Morgan, Albuquerque, for plaintiffs-appellees.\nKenneth J. Ferguson, Robert G. McCorkle, Rodey, Dickason, Sloan, Akin & Robb, P.A., Jerrald J. Roehl, Jerrald J. Roehl & Associates, Albuquerque, I. Michael Bayda, Jacobs, Persinger & Parker, New York City, for defendants-appellants." }, "file_name": "0167-01", "first_page_order": 199, "last_page_order": 205 }