{ "id": 322280, "name": "David RHEIN and Timothy Michaels, Plaintiff-Appellants, v. ADT AUTOMOTIVE, INC., d/b/a, Albuquerque Auto Auction, Defendant-Appellee", "name_abbreviation": "Rhein v. ADT Automotive, Inc.", "decision_date": "1996-11-26", "docket_number": "No. 23285", "first_page": "646", "last_page": "655", "citations": [ { "type": "official", "cite": "122 N.M. 646" }, { "type": "parallel", "cite": "930 P.2d 783" }, { "type": "parallel", "cite": "1996-NMSC-067" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "85 N.M. 320", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2768477 ], "weight": 2, "year": 1973, "pin_cites": [ { "page": "323", "parenthetical": "reinstating jury verdict after reversing order granting judgment notwithstanding verdict" }, { "page": "83", "parenthetical": "reinstating jury verdict after reversing order granting judgment notwithstanding verdict" } ], "opinion_index": 0, "case_paths": [ "/nm/85/0320-01" ] }, { "cite": "111 N.M. 289", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715106 ], "weight": 2, "pin_cites": [ { "page": "292" }, { "page": "1111" } ], "opinion_index": 0, "case_paths": [ "/nm/111/0289-01" ] }, { "cite": "117 N.M. 306", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552682 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "314", "parenthetical": "same" }, { "page": "970", "parenthetical": "same" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0306-01" ] }, { "cite": "119 N.M. 350", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1561248 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "353", "parenthetical": "remanding for new trial after reversing order granting directed verdict" }, { "page": "806", "parenthetical": "remanding for new trial after reversing order granting directed verdict" } ], "opinion_index": 0, "case_paths": [ "/nm/119/0350-01" ] }, { "cite": "59 N.M. 354", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1589279 ], "weight": 2, "year": 1955, "pin_cites": [ { "page": "356", "parenthetical": "stating that \"we think it beyond question that a motion for a directed verdict at the close of all the evidence is a prerequisite to a motion for judgment notwithstanding verdict\"" }, { "page": "1025", "parenthetical": "stating that \"we think it beyond question that a motion for a directed verdict at the close of all the evidence is a prerequisite to a motion for judgment notwithstanding verdict\"" } ], "opinion_index": 0, "case_paths": [ "/nm/59/0354-01" ] }, { "cite": "74 N.M. 206", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2805479 ], "weight": 2, "year": 1964, "pin_cites": [ { "page": "210" }, { "page": "407" } ], "opinion_index": 0, "case_paths": [ "/nm/74/0206-01" ] }, { "cite": "117 N.M. 91", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1552738 ], "weight": 4, "year": 1994, "pin_cites": [ { "page": "94" }, { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/nm/117/0091-01" ] }, { "cite": "610 N.E.2d 1259", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1993, "opinion_index": 0 }, { "cite": "183 Ill.Dec. 15", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1993, "opinion_index": 0 }, { "cite": "148 Ill.2d 639", "category": "reporters:state", "reporter": "Ill. 2d", "year": 1993, "opinion_index": 0 }, { "cite": "601 N.E.2d 1257", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "pin_cites": [ { "page": "1263" } ], "opinion_index": 0 }, { "cite": "176 Ill.Dec. 559", "category": "reporters:state", "reporter": "Ill. Dec.", "year": 1992, "pin_cites": [ { "page": "565" } ], "opinion_index": 0 }, { "cite": "235 Ill.App.3d 849", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5784621 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ill-app-3d/235/0849-01" ] }, { "cite": "91 N.M. 599", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1571143 ], "weight": 2, "year": 1978, "pin_cites": [ { "page": "601" }, { "page": "1247" } ], "opinion_index": 0, "case_paths": [ "/nm/91/0599-01" ] }, { "cite": "118 N.M. 140", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563458 ], "weight": 6, "year": 1994, "pin_cites": [ { "page": "143", "parenthetical": "citing Samedan Oil Corp. v. Neeld, 91 N.M. 599, 601, 577 P.2d 1245, 1247 (1978)" }, { "page": "775", "parenthetical": "citing Samedan Oil Corp. v. Neeld, 91 N.M. 599, 601, 577 P.2d 1245, 1247 (1978)" }, { "page": "778" }, { "page": "145" }, { "page": "777" }, { "page": "778" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0140-01" ] }, { "cite": "113 N.M. 513", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 723191 ], "weight": 2, "pin_cites": [ { "page": "517" }, { "page": "429" } ], "opinion_index": 0, "case_paths": [ "/nm/113/0513-01" ] }, { "cite": "102 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580114 ], "weight": 2, "pin_cites": [ { "page": "690" }, { "page": "621" } ], "opinion_index": 0, "case_paths": [ "/nm/102/0682-01" ] }, { "cite": "108 N.M. 643", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592853 ], "weight": 4, "year": 1989, "pin_cites": [ { "page": "649" }, { "page": "377" }, { "page": "647" }, { "page": "375" } ], "opinion_index": 0, "case_paths": [ "/nm/108/0643-01" ] }, { "cite": "54 N.M. 197", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1581999 ], "weight": 2, "year": 1950, "opinion_index": 0, "case_paths": [ "/nm/54/0197-01" ] }, { "cite": "82 N.M. 776", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332088 ], "weight": 2, "year": 1971, "pin_cites": [ { "page": "777" }, { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/nm/82/0776-01" ] }, { "cite": "558 P.2d 620", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1976, "opinion_index": 0 }, { "cite": "90 N.M. 8", "category": "reporters:state", "reporter": "N.M.", "year": 1976, "opinion_index": 0 }, { "cite": "546 P.2d 70", "category": "reporters:state_regional", "reporter": "P.2d", "weight": 2, "year": 1976, "opinion_index": 0 }, { "cite": "89 N.M. 5", "category": "reporters:state", "reporter": "N.M.", "weight": 2, "year": 1976, "opinion_index": 0 }, { "cite": "88 N.M. 583", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2837912 ], "weight": 4, "pin_cites": [ { "page": "587" }, { "page": "727" } ], "opinion_index": 0, "case_paths": [ "/nm/88/0583-01" ] }, { "cite": "97 N.M. 369", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1555189 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "372", "parenthetical": "citing Montoya v. General Motors Corp., 88 N.M. 583, 544 P.2d 723 (Ct.App.1975), cert. denied, 89 N.M. 5, 546 P.2d 70 (1976), and cert. denied, Montoya v. Mountain States Tel. & Telegraph Co., 90 N.M. 8, 558 P.2d 620 (1976)" }, { "page": "478", "parenthetical": "citing Montoya v. General Motors Corp., 88 N.M. 583, 544 P.2d 723 (Ct.App.1975), cert. denied, 89 N.M. 5, 546 P.2d 70 (1976), and cert. denied, Montoya v. Mountain States Tel. & Telegraph Co., 90 N.M. 8, 558 P.2d 620 (1976)" } ], "opinion_index": 0, "case_paths": [ "/nm/97/0369-01" ] }, { "cite": "1 N.M. 247", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8300716 ], "year": 1857, "pin_cites": [ { "page": "250", "parenthetical": "\"The weight of the evidence must be clearly and palpably contrary to the verdict, and a new trial will only be granted where it is manifest to a reasonable certainty that justice has not been done.\"" } ], "opinion_index": 0, "case_paths": [ "/nm/1/0247-01" ] }, { "cite": "771 P.2d 981", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1989, "pin_cites": [ { "parenthetical": "holding that it was proper for the trial court to grant a motion for a new trial when one of the parties had approached a prospective juror and sought a favorable verdict" } ], "opinion_index": 0 }, { "cite": "108 N.M. 273", "category": "reporters:state", "reporter": "N.M.", "year": 1989, "pin_cites": [ { "parenthetical": "holding that it was proper for the trial court to grant a motion for a new trial when one of the parties had approached a prospective juror and sought a favorable verdict" } ], "opinion_index": 0 }, { "cite": "108 N.M. 385", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1592877 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/108/0385-01" ] }, { "cite": "104 N.M. 329", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1594869 ], "weight": 2, "year": 1986, "pin_cites": [ { "page": "333" }, { "page": "401" } ], "opinion_index": 0, "case_paths": [ "/nm/104/0329-01" ] }, { "cite": "98 N.M. 682", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582464 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "684" }, { "page": "234" } ], "opinion_index": 0, "case_paths": [ "/nm/98/0682-01" ] }, { "cite": "53 N.M. 367", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1580728 ], "weight": 2, "year": 1949, "pin_cites": [ { "page": "378" }, { "page": "1080" } ], "opinion_index": 0, "case_paths": [ "/nm/53/0367-01" ] }, { "cite": "118 N.M. 402", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563649 ], "weight": 2, "year": 1994, "pin_cites": [ { "page": "405", "parenthetical": "citations omitted" }, { "page": "1390", "parenthetical": "citations omitted" } ], "opinion_index": 0, "case_paths": [ "/nm/118/0402-01" ] }, { "cite": "40 N.M. 397", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8842156 ], "weight": 2, "year": 1936, "pin_cites": [ { "page": "421" }, { "page": "661" } ], "opinion_index": 0, "case_paths": [ "/nm/40/0397-01" ] }, { "cite": "776 S.W.2d 651", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10010785 ], "pin_cites": [ { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/sw2d/776/0651-01" ] }, { "cite": "527 So.2d 41", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 7546545 ], "pin_cites": [ { "page": "44" } ], "opinion_index": 0, "case_paths": [ "/so2d/527/0041-01" ] }, { "cite": "802 P.2d 452", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10372976 ], "pin_cites": [ { "page": "458" } ], "opinion_index": 0, "case_paths": [ "/p2d/802/0452-01" ] }, { "cite": "109 Nev. 257", "category": "reporters:state", "reporter": "Nev.", "case_ids": [ 8557350 ], "weight": 2, "year": 1993, "pin_cites": [ { "parenthetical": "holding that the court could hear the appeal \"[s]ince an order granting or refusing a new trial is appealable\" by statute" }, { "page": "315", "parenthetical": "holding that the court could hear the appeal \"[s]ince an order granting or refusing a new trial is appealable\" by statute" } ], "opinion_index": 0, "case_paths": [ "/nev/109/0257-01" ] }, { "cite": "114 Idaho 860", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 4434187 ], "weight": 2, "year": 1988, "pin_cites": [ { "page": "863", "parenthetical": "holding that the rules of appellate procedure gave the party \"the right to appeal the trial court's order granting a new trial\"" }, { "page": "1215", "parenthetical": "holding that the rules of appellate procedure gave the party \"the right to appeal the trial court's order granting a new trial\"" } ], "opinion_index": 0, "case_paths": [ "/idaho/114/0860-01" ] }, { "cite": "103 Ariz. 217", "category": "reporters:state", "reporter": "Ariz.", "case_ids": [ 631210 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "220", "parenthetical": "\"It is quite clear that under this [statutory] provision an order granting a new trial is substantively an appealable order.\"" }, { "page": "492", "parenthetical": "\"It is quite clear that under this [statutory] provision an order granting a new trial is substantively an appealable order.\"" } ], "opinion_index": 0, "case_paths": [ "/ariz/103/0217-01" ] }, { "cite": "81 Md.App. 345", "category": "reporters:state", "reporter": "Md. App.", "case_ids": [ 3940930 ], "weight": 2, "year": 1990, "pin_cites": [ { "parenthetical": "stating that the more recent view is that the grant of a new trial is immediately appealable on an abuse of discretion standard" }, { "page": "533", "parenthetical": "stating that the more recent view is that the grant of a new trial is immediately appealable on an abuse of discretion standard" } ], "opinion_index": 0, "case_paths": [ "/md-app/81/0345-01" ] }, { "cite": "82 N.M. 562", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5335008, 5327978, 5329479 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0562-03", "/nm/82/0562-01", "/nm/82/0562-02" ] }, { "cite": "82 N.M. 583", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331469 ], "weight": 2, "pin_cites": [ { "page": "583-84" }, { "page": "1293-94" } ], "opinion_index": 0, "case_paths": [ "/nm/82/0583-01" ] }, { "cite": "67 N.M. 219", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2715243 ], "weight": 2, "year": 1960, "pin_cites": [ { "page": "220" }, { "page": "149" } ], "opinion_index": 0, "case_paths": [ "/nm/67/0219-01" ] }, { "cite": "111 N.M. 391", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 715167 ], "weight": 2, "year": 1991, "opinion_index": 0, "case_paths": [ "/nm/111/0391-01" ] } ], "analysis": { "cardinality": 1486, "char_count": 35135, "ocr_confidence": 0.685, "pagerank": { "raw": 1.3517074525728762e-07, "percentile": 0.6336732373200137 }, "sha256": "4a00e22778ef28840d84da75751b221c4fc53f689614a8daae5f97d7263dba68", "simhash": "1:9c3b001cfcc41d7c", "word_count": 5824 }, "last_updated": "2023-07-14T15:23:55.699803+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "BACA, C.J., and FRANCHINI, J., concur." ], "parties": [ "David RHEIN and Timothy Michaels, Plaintiff-Appellants, v. ADT AUTOMOTIVE, INC., d/b/a, Albuquerque Auto Auction, Defendant-Appellee." ], "opinions": [ { "text": "OPINION\nRANSOM, Justice.\n1. This is a retaliatory discharge suit against ADT Automotive, Inc. David Rhein claimed that he was terminated because he alerted the New Mexico Department of Occupational Health & Safety (OSHA) about respiratory safety violations at ADT\u2019s paint and body shop, and Timothy Michaels claimed that he was terminated because he was about to file a workers\u2019 compensation claim for injuries resulting from these safety violations. At trial, the jury returned verdicts for compensatory damages of $235,000 for Rhein and $75,000 for Michaels. The court had refused to instruct on punitive damages. In post-trial proceedings, the court granted ADT\u2019s motion for new trial against Rhein, and ADT\u2019s motion for judgment notwithstanding the verdict against Michaels. The trial court denied Plaintiffs\u2019 motion for a new trial on the issue of punitive damages.\n2. Rhein and Michaels appealed to the Court of Appeals, which, in turn, certified the case to this Court pursuant to NMSA 1978, \u00a7 34-5-14(0(2) (Repl.Pamp.1990), noting an issue of \u201csubstantial public interest\u201d relating to the appealability of an order for new trial when a final order has been entered with respect to another party. On certification from the Court of Appeals we decide the entire case in which the appeal is taken. Collins v. Tabet, 111 N.M. 391, 404 n. 10, 806 P.2d 40, 53 n. 10 (1991). We hold that the grant of a new trial is not appealable except when this Court issues a writ of superintending control under circumstances calling for extraordinary relief. We also hold that the trial court erred in refusing to instruct on punitive damages and in granting the motions for new trial and for a judgment notwithstanding the verdict.\n3. Facts and proceedings. ADT operates a large automotive reconditioning facility. Almost 30,000 cars annually pass through the Albuquerque facility, the majority of these vehicles being \u201cprogram\u201d cars that automotive manufacturers had previously leased to rental car companies. At the end of the lease term, these cars are brought to ADT by rail and, after reconditioning, are sold in auctions to retail dealers. A second shift at the body shop was created to meet increased business demands. Rhein was hired in late 1990 to work as a body man to prepare collision damaged vehicles for repainting. Michaels was hired several months later as an automotive painter. Both men were hired to work on the second shift, and both remained on this shift for the entirety of their employment at ADT. The evidence supports the following facts and inferences relevant to this appeal.\n4. The ADT facility had two painting booths equipped with ventilation systems necessary to keep dangerous toxic \u201cover-spray\u201d out of the body shop. Due to a backlog of vehicles, however, ADT management instructed employees to apply paint outside of these controlled areas. The resulting fog from these operations was often so thick that \u201cyou could not see across the room\u201d and fresh air respirators were required to protect against the toxins. ADT did provide charcoal mask respirators, but these are not suitable to prevent exposure to the automotive paints being used.\n5. Michaels alerted ADT to the health and safety risks posed by the overspray, as well as other safety violations. ADT failed to act on these complaints. Soon afterward, both Rhein and Michaels began to suffer from health problems allegedly related to exposure to airborne toxins. Rhein began to suffer upper respiratory problems and skin rashes, and believed that he was developing both liver problems and toxic hepatitis as a result of his exposure. Michaels\u2019 reaction to the toxins was even more severe. He began to lose his hair, run high fevers, and developed a kidney condition. After working his twelve hour shift his face would swell and his skin would crack and bleed.\n6. Rhein also took several steps to bring these health and safety problems to the attention of ADT. He met with the personnel director and explained his concerns. He also showed the director a note from his physician regarding toxic hepatitis. The personnel director took Rhein to the general manager, Ken Osborn. Rhein explained his concerns again to Osborn, but Osborn apparently did not seem interested. Later that day Rhein telephoned the New Mexico office of OSHA. Rhein spoke to an OSHA representative about the health risks posed by the current operation of the body shop, and he then mailed in a written complaint. OSHA records indicate that the complaint against ADT was initiated on February 18,1992.\n7. A site inspection of the repair shop was made by OSHA on March 9,1992. Both Danny Valdez, the reconditioning department manager prior to May 18, 1992, and Les Newman, who was the body shop manager until he replaced Valdez as department manager after May 18, may have seen Rhein\u2019s name on a written complaint in the briefcase of the OSHA inspector. ADT, however, denies having any knowledge of which employee had filed the complaint with OSHA Rhein nonetheless began receiving threats of termination almost immediately after the OSHA inspection. Newman told Rhein on several occasions that upper management wanted him \u201cout of there,\u201d and that Rhein should \u201ckeep [his] mouth shut and just do [his] work.\u201d Also, Valdez accused Rhein of stealing tools from ADT, an offense that would warrant termination.\n8. OSHA returned to ADT on May 5, 1992, and issued several health and safety citations. In response, ADT proposed several new policies for the body shop. One of the policy changes was to prohibit the spraying of paint or primer in the body shop, limiting spraying to the controlled spray booths. This policy was not only unenforced, but management quickly ordered the body shop employees to spray paint and primer in the body shop to keep up with the workload. Another proposed policy change was an order that all body shop employees take a physical examination by a physician. All employees that failed this examination were to be terminated by ADT. Michaels believed that through this policy he was being singled out for termination. He contacted OSHA about the apparent retaliation against him for his health problems. Rhein also called OSHA to report his fears of retaliatory termination.\n9. Rhein and Michaels both were terminated on May 18, 1992. Witnesses for ADT testified that both men were laid off because the second shift of the body shop was being phased out, either through lay-offs or attrition. ADT was experiencing a downturn in business, and this eliminated the need of the second shift. ADT contends that the decision to eliminate the second shift was made at a management meeting on May 18,- and the employees were then informed at a general employee meeting later in the morning. Rhein testified to the contrary that Newman told him that he was being laid off because he had gone back to school, because he had refused to do \u201cpriming work,\u201d and because of his health problems. Michaels was not present for the employee meeting, but arrived later in the day with a note from his physician recommending that he avoid work in the body shop for a period of thirty days. Newman informed Michaels that he had been laid off and recommended that he file for unemployment instead of workers\u2019 compensation. Michaels insisted on filing for workers\u2019 compensation, and the personnel director assisted him with the paperwork for this claim.\n10. It is the policy of ADT to rehire laid-off employees when positions become available. Michaels never was contacted by ADT even though positions became available. ADT contended that this is because they had received medical reports indicating that Michaels could not return to a work environment where he was exposed to automotive paint. Rhein was offered a position by ADT as a \u201ccolor sander buffer\u201d approximately six months after he was laid off. Rhein refused this position because it offered less pay and prestige than his former position. The position that Rhein had held, that of a body man, did open up a few weeks after this, and the position was filled by the employee that had accepted the position as color sander buffer.\n11. At the end of the five-day trial, plaintiffs submitted a jury instruction for punitive damages. The trial court refused to give this instruction, and instructed on compensatory damages alone. After deliberating for eight hours the jury returned their compensatory damages verdicts of $235,000 for Rhein and of $75,000 for Michaels. The court heard several post-trial motions and granted ADT judgment notwithstanding the verdict against Michaels and a new trial against Rhein. The court denied Plaintiffs\u2019 motion for a new trial based on failure to instruct the jury on punitive damages. In a written decision, the court explained in detail its reasons for granting or denying the motions. Michaels appealed this decision. Rhein was aware that Rule 12-201 (D) NMRA 1996 prohibits the immediate appeal of an order granting a new trial, and he filed a petition before this Court for a writ of superintending control allowing an immediate appeal to the Court of Appeals. We granted this extraordinary relief because the issues in Rhein\u2019s case \u201care similar and mutually involved with those of the Michaels appeal.\u201d Plaintiffs\u2019 appeals were consolidated, and the Court of Appeals then certified the appeal to this Court.\n12. The new trial. \u2014 Immediate appealability. In light of our writ of superintending control, the Court of Appeals certified this case to our Court to address whether an order granting a motion for a new trial is immediately appealable when a final order has been entered with respect to a eoparty. In Scott v. J.C. Penney Co., we stated that when a \u201cmotion for a new trial is granted, it merely means the case stands as never tried, and until retried and a judgment entered, there is no final judgment.\u201d 67 N.M. 219, 220, 354 P.2d 147, 149 (1960). Since only final judgments are appealable, \u201can order granting a new trial following a jury verdict but before entry of judgment on the verdict is not appealable.\u201d Warren v. Zimmerman, 82 N.M. 583, 583-84, 484 P.2d 1293, 1293-94 (Ct.App.), cert. denied, 82 N.M. 562, 484 P.2d 1272 (1971).\nA motion for new trial that is timely and properly made suspends the finality of' the judgment and tolls the running of the time for taking an appeal. If the motion is denied, the full time for appeal commences to run anew from the date of the entry of the order denying the motion. If the motion is granted, or if the court orders a new trial on its own initiative, the finality of the judgment is destroyed and an appeal may not be taken until the entry of a final judgment following the new trial.\n6A Jeremy C. Moore et al., Moore\u2019s Federal Practice, \u00b6 59.15[1] (2d ed. 1985). This common-law concept was then codified into our Rules of Appellate Procedure with a 1991 amendment to Rule 12-201(D) NMRA 1996, which states that \u201c[a]n order granting a motion for new trial in civil cases is not appeal-able and renders any prior judgment nonappealable.\u201d\n13. We recognize that some jurisdictions have permitted the immediate appeal of an order granting a new trial. See, e.g., Franklin v. Gupta, 81 Md.App. 345, 567 A.2d 524, 533 (1990) (stating that the more recent view is that the grant of a new trial is immediately appealable on an abuse of discretion standard). Such appeals also have been approved in other jurisdictions through rules of appellate procedure contrary to those in New Mexico. See, e.g., Wells v. Tanner Bros. Contracting Co., 103 Ariz. 217, 220, 439 P.2d 489, 492 (1968) (\u201cIt is quite clear that under this [statutory] provision an order granting a new trial is substantively an appealable order.\u201d); Smallwood v. Dick, 114 Idaho 860, 863, 761 P.2d 1212, 1215 (1988) (holding that the rules of appellate procedure gave the party \u201cthe right to appeal the trial court\u2019s order granting a new trial\u201d); Carlson v. Locatelli, 109 Nev. 257, 849 P.2d 313, 315 (1993) (holding that the court could hear the appeal \u201c[s]ince an order granting or refusing a new trial is appealable\u201d by statute).\n14. New Mexico nonetheless is not alone in holding that the grant of a new civil trial is not immediately appealable. See, e.g., Nelson v. Hammon, 802 P.2d 452, 458 (Colo.1990) (stating that \u201cthe trial court\u2019s order granting a new trial is not an appealable order\u201d under Rule 59 of the Colorado Rules of Civil Procedure); Louisiana Nat\u2019l Bank v. Laborde, 527 So.2d 41, 44 (La.Ct.App.1988) (\u201cA judgment granting a new trial is an interlocutory judgment, not a final one, and it does not cause irreparable injury; hence, it is not an appealable judgment.\u201d); Lamberti v. Tschoepe, 776 S.W.2d 651, 652 (Tex.Ct.App.1989) (\u201cAn order granting a new trial is not subject to review either by direct appeal from that order, or from a final judgment rendered after further proceedings in the trial court.\u201d).\n15. \u2014The granting of the writ of superintending control. While we believe the proper rule in New Mexico is that an order granting a motion for new trial is not immediately appealable as a matter of right, we can grant an appeal under extraordinary circumstances by writ of superintending control. Rhein petitioned this Court for just such a writ because he recognized there indeed was no right of immediate direct appeal from the order. We granted the writ and directed Rhein to file a notice of appeal with the Court of Appeals.\n16. The New Mexico Constitution empowers the Supreme Court with superintending control over all inferior courts. N.M. Const, art. VI, \u00a7 3. The exercise of this power \u201cis the power to control the course of ordinary litigation in inferior courts.\u201d State v. Roy, 40 N.M. 397, 421, 60 P.2d 646, 661 (1936). \u201cWe exercise this authority by promulgating rules that regulate pleading, practice, and procedure, by issuing opinions or decisions, by issuing administrative orders, and by issuing extraordinary writs.\u201d District Court of Second Judicial Dist. v. McKenna, 118 N.M. 402, 405, 881 P.2d 1387, 1390 (1994) (citations omitted). In State ex rel. Transcontinental Bus Service. Inc. v. Carmody, we stated that the Supreme Court \u201cmay intervene by an appropriate writ in an exercise of its power of superintending control, if the remedy by appeal seems wholly inadequate ... or where otherwise necessary to prevent irreparable mischief, great, extraordinary, or exceptional hardship; costly delays and unusual burdens of expense.\u201d 53 N.M. 367, 378, 208 P.2d 1073, 1080 (1949).\n17. In this case, we granted our writ of superintending control because we believed that to do otherwise would amount to a denial of justice. Rhein and Michaels are co-plaintiffs in this action, and both wished to appeal from the decision of the trial court. Michaels is able to appeal his case to the Court of Appeals as a matter of right because his case was dismissed under a judgment notwithstanding the verdict. As we noted in the writ,\nWhereas, it appearing that the issues that petitioner seeks to appeal from the grant of a new trial are similar and mutually involved with those of Michaels\u2019 appeal, the two cases having been tried jointly, and there appearing to be mixed questions of law and discretion in the grant of the new trial, this Court deems extraordinary relief to be warranted to serve the purpose of fairness and judicial economy.\nFor these reasons, we determined that Rhein should be granted the extraordinary relief of an immediate appeal.\n18. \u2014The trial court abused its discretion in granting a new trial. We acknowledge that the \u201ctrial court has broad discretion in granting or denying a motion for new trial, and such an order will not be reversed absent clear and manifest abuse of that discretion.\u201d State v. Chavez, 98 N.M. 682, 684, 652 P.2d 232, 234 (1982). We apply this abuse-of-discretion standard \u201c[b]ecause the trial judge has observed the demeanor of the witnesses and has heard all the evidence ... [and thus] the function of passing on motions for new trial belongs naturally and peculiarly to the trial court.\u201d State v. Smith, 104 N.M. 329, 333, 721 P.2d 397, 401 (1986). This does not mean that the trial court has an unrestricted ability to grant a motion for a new trial. It is proper for the trial court to grant a motion for a new trial in a civil case only when certain conditions are met.\n19. The trial court here set out several reasons for granting the motion for a new trial. First, the court stated that the verdict in favor of Rhein, and the amount of damages awarded, was \u201ccontrary to the great weight of the evidence.\u201d Second, the court found that the jury\u2019s award to Rhein of over three times the damages that Michaels received was inconsistent with the evidence presented, which tended to show that Michaels would be entitled to twice the damages of Rhein. Third, Plaintiffs\u2019 counsel made several remarks during closing arguments which prejudiced the jury against ADT. Plaintiffs assert that each of these three findings was made in error.\n20. Rhein asserts that there was sufficient evidence in his case to support the jury\u2019s verdict. Rhein had contacted several members of ADT\u2019s management and informed them of the dangers posed by health and safety violations. Rhein alleges that at least two managers discovered that he had informed OSHA of these problems, and they held him responsible for the two visits from OSHA. He was threatened immediately after the first visit, and he was terminated less than two weeks after OSHA returned and cited ADT for these violations. He contacted OSHA one week before his termination and informed them of his fears of retaliatory termination. Also, Rhein presented evidence at trial that he was earning $35,000 at ADT and was forced to take employment at half that salary after his termination. Rhein argues that all of this evidence supports the jury\u2019s verdict.\n21. Rhein further argues that the disparity in damages shows that the jury considered the case in detail. At trial, ADT asserted the defense of failure to mitigate damages against Michaels. Michaels had worked as an automotive painter at ADT, but had failed to return to auto painting after his termination. He had instead chosen to become self-employed at a fraction of his previous wages. Additionally, ADT informed the jury that Michaels was receiving workers\u2019 compensation for his injuries. Rhein argues that the jury may have reduced Michaels\u2019 recovery because he was already being compensated for injuries attributable to ADT.\n22. Finally, Rhein asserts that comments made during closing were proper and did not prejudice the jury. During closing, Plaintiffs presented the jury with several inferences to be drawn by the jury, including, for example, that Danny Valdez was acting as a pawn for ADT management, and that Valdez had attempted to \u201cset up\u201d Rhein by accusing him of stealing tools. The comments were proper attempts to \u201creconcile the conflicting evidence.\u201d Furthermore, there were no objections made by opposing counsel, nor admonitions by the court, on the issues of prejudice relied upon by the trial court in its decision letter.\n23. It is readily apparent that the trial court in this case came to different conclusions than the jury. The court determined that the jury\u2019s verdict was inconsistent with the evidence and the credibility of the witnesses. Without more, however, it is improper for the trial court to grant a new trial. A trial court can grant a motion for new trial only when there is evidence of jury tampering or other contamination of the process, e.g., Martinez v. Ponderosa Prods. Inc., 108 N.M. 385, 772 P.2d 1308 (Ct.App.1988), cert. denied, 108 N.M. 273, 771 P.2d 981 (1989) (holding that it was proper for the trial court to grant a motion for a new trial when one of the parties had approached a prospective juror and sought a favorable verdict), or when the weight of the evidence is clearly and palpably contrary to the jury\u2019s verdict, Ruhe v. Abren, 1 N.M. 247, 250 (1857) (\u201cThe weight of the evidence must be clearly and palpably contrary to the verdict, and a new trial will only be granted where it is manifest to a reasonable certainty that justice has not been done.\u201d).\n24. A court can never grant a new trial merely because it doubted the credibility of the witnesses. The jury must be the exclusive evaluator of the evidence and the credibility of witnesses, with the trial court only intervening when the jury\u2019s verdict is so against the weight of evidence that it would be a grave injustice to allow the verdict to stand. A review of the evidence set forth in detail above reveals that the jury\u2019s verdict was not \u201cclearly and palpably contrary\u201d to the weight of the evidence, and that the trial court abused its discretion by granting the motion for a new trial. Therefore, we reverse the trial court on this issue.\n25. Judgment notwithstanding the verdict. Michaels argues that the trial court erred in granting ADT\u2019s motion for judgment notwithstanding the verdict. When considering a motion for judgment notwithstanding the verdict, \u201cthis Court has always considered the testimony in a light most favorable to the prevailing party.\u201d Adams v. United Steelworkers of Am., 97 N.M. 369, 372, 640 P.2d 475, 478 (1982) (citing Montoya v. General Motors Corp., 88 N.M. 583, 544 P.2d 723 (Ct.App.1975), cert. denied, 89 N.M. 5, 546 P.2d 70 (1976), and cert. denied, Montoya v. Mountain States Tel. & Telegraph Co., 90 N.M. 8, 558 P.2d 620 (1976)). \u201cIn testing the propriety of a judgment notwithstanding the verdict, the evidence favorable to the successful party, together with all inferences as may be reasonably drawn therefrom, will be accepted as true and all evidence to the contrary will be disregarded.\u201d Scott v. McWood Corp., 82 N.M. 776, 777, 487 P.2d 478, 479 (1971). Upon analysis, we \u201cshould be able to say that there is neither evidence nor inference from which the jury could have arrived at its verdict.\u201d Townsend, 74 N.M. at 209, 392 P.2d at 407 (citing Michelson v. House, 54 N.M. 197, 218 P.2d 861 (1950)).\n26. The evidence favoring the verdict includes testimony that Michaels had been suffering from continued health problems which had noticeable physical manifestations. He had been seeing a physician about his health problems, and had informed his supervisor that his sickness was likely related to exposure to toxins in the work place. On May 15, 1992, the Friday before his termination, Michaels had another strong reaction to the paint fumes and his physician placed him on a thirty-day work restriction. Michaels called his supervisor, Valdez, and informed him that he would come to work on Monday with the letter from his doctor. When he returned to work with the note he discovered that he had been terminated. Because ADT was aware of Michaels\u2019 work-related health problems and Valdez had been informed that Michaels would be unable to work in the body shop for thirty days, it can be inferred that ADT knew that Michaels would be filing a worker\u2019s compensation claim on May 18, and they choose to terminate him and attempt to persuade him to file for unemployment instead of workers\u2019 compensation.\n27. ADT asserts that Valdez was not informed that Michaels would be bringing in a note from his physician. Further, Valdez was replaced as supervisor on Monday morning, and the decision to eliminate the second shift was made on that morning by upper management. ADT asserts that no one with the power to terminate Michaels was aware of his intention to file a worker\u2019s compensation claim. He was simply a member of the second shift, a shift that had to be eliminated because of reduced business. The trial court apparently agreed with ADT. The court stated that\nThe evidence is undisputed that (1) there were other workers\u2019 compensation eases and no one was fired relative to them; (2) Mr. Michaels was to be terminated when he arrived at work on May 18, 1992; (3) After Mr. Michaels arrived at work and informed defendant of his medical condition, defendant\u2019s employees initiated the filing of the compensation claim and helped Mr. Michaels with the paper work to get the claim filed, all after he was to be terminated. The facts as asserted by Plaintiffs\u2019 counsel in closing argument and in various briefs to support the jury verdict are either inaccurate, partial statements, statements out of context, or facts which equally support several hypotheses and, therefore, prove nothing.\n28. The evaluation of competing theories, whether they equally support several hypotheses, is a proper determination for the jury, not the judge. A jury could have determined that Michaels simply was the victim of corporate downsizing, or it could have determined that ADT intentionally terminated an employee that it viewed as a troublemaker and a potential liability. The existence of several hypotheses is not a proper standard for granting a motion for judgment notwithstanding the verdict. ADT would have had to show that there was \u201cneither evidence nor inference from which the jury could have arrived at its verdict.\u201d Townsend, 74 N.M. at 209, 392 P.2d at 407. In this case there was evidence that ADT knew Michaels would likely be filing for worker\u2019s compensation, and it is reasonable for the jury to have inferred that ADT chose to terminate Michaels in anticipation of this claim.\n29. Additionally, we believe the three contrary inferences drawn by the trial court to be in error. First, we cannot infer that Michaels was not the victim of retaliatory discharge merely because other employees had filed worker\u2019s compensation claims and had not been terminated. Michaels\u2019 health problems apparently were related directly to unsafe conditions at ADT, conditions that were in violation of OSHA. Unless it can be shown that the other employees who had filed worker\u2019s compensation claims were also victims of similarly unsafe conditions, all inferences comparing these instances are questionable. Second, the fact that an ill employee was to be terminated on the day that he showed up with a doctor\u2019s note recommending avoidance of work for an extended period, a letter of which ADT was aware, is not merely coincidental. Third, we cannot infer that ADT did not commit retaliatory discharge merely because they assisted Michaels in filing for worker\u2019s compensation. Newman had attempted to talk Michaels out of filing for worker\u2019s compensation, and when ADT did assist Michaels, they were merely complying with a legal obligation, see NMSA 1978, \u00a7 52-1-58 (Repl.Pamp.1991). We therefore reverse the trial court and hold that judgment notwithstanding the verdict was improperly granted.\n30. Punitive damages. Plaintiffs are correct in their assertion that punitive damages are allowable in all retaliatory discharge cases. The tort of retaliatory discharge is an intentional tort, Chavez v. Manville Products Corp., 108 N.M. 643, 649, 777 P.2d 371, 377 (1989), and as our Court of Appeals has previously noted, \u201cWithout punitive damages there may be little to discourage an employer from discharging an employee if the pecuniary losses are insignificant. Further, the threat of a petty misdemeanor ... might in some instances provide insufficient deterrence to retaliatory discharge. The ability to recover punitive damages should offer a sufficient deterrent.\u201d Vigil v. Arzola, 102 N.M. 682, 690, 699 P.2d 613, 621 (Ct.App.1983), overruled on other grounds, Chavez v. Manville Products Corp., 108 N.M. 643, 647, 777 P.2d 371, 375 (1989). \u201cThe purpose of punitive damages is to punish the wrongdoer and to deter the wrongdoer and others in a similar position from such misconduct in the future.\u201d Conant v. Rodriguez, 113 N.M. 513, 517, 828 P.2d 425, 429 (Ct.App.1992).\n31. \u201cIt is a well-established rule in New Mexico that a principal may be held liable for punitive damages when the principal has in some way authorized, ratified, or participated in the wanton, oppressive, malicious, fraudulent, or criminal acts of its agent.\u201d Albuquerque Concrete Coring Co. v. Pan Am World Servs., Inc., 118 N.M. 140, 143, 879 P.2d 772, 775 (1994) (citing Samedan Oil Corp. v. Neeld, 91 N.M. 599, 601, 577 P.2d 1245, 1247 (1978)). According to the Restatement, \u201c[p]unitive damages can properly be awarded against a master or other principal because of an act by an agent if ... the agent was employed in a managerial capacity and was acting in the scope of employment.\u201d Restatement (Second) of Agency \u00a7 217C(c) (1957). We adopted the Restatement standard in Albuquerque Concrete, noting that \u201c[w]hen a corporate agent with managerial capacity acts on behalf of the corporation, pursuant to the theoretical underpinnings of the Restatement rule of managerial capacity, his acts are the acts of the corporation; the corporation has participated.\u201d Albuquerque Concrete, 118 N.M. at 146, 879 P.2d at 778. A managerial employee has been defined \u201cas one who \u2018formulates, determines and effectuates his employer\u2019s policies, one with discretion or authority to make ultimate determinations independent of company consideration and approval of\u2019 whether a policy should be adopted.\u2019 \u201d Id. at 145, 879 P.2d at 777 (quoting Abshire v. Stoller, 235 Ill.App.3d 849, 176 Ill.Dec. 559, 565, 601 N.E.2d 1257, 1263 (1992), appeal denied, 148 Ill.2d 639, 183 Ill.Dec. 15, 610 N.E.2d 1259 (1993)).\n32. Plaintiffs aUege that every person involved in the decision to terminate them had managerial authority. Valdez, as the manager of the reconditioning department, had the authority to fire both plaintiffs, and there was some testimony presented that he was involved in the terminations. Newman was present at the meeting on May 18, and he also had the same authority as Valdez. Osborn stated in his deposition that he had the \u201cultimate authority\u201d to hire and fire employees, and that he made the decision to terminate the plaintiffs at the May 18 meeting. ADT disagrees, arguing that neither Valdez nor Newman had authority to fire plaintiffs, that Osborn was the only person with this authority. However, aU three men could make ADT Uable for punitive damages under the Restatement standard that we adopted in Albuquerque Concrete, 118 N.M. at 146, 879 P.2d at 778. They each were employed in managerial capacities with varying degrees of authority, and each acted within the scope of that authority. Therefore, the trial court should have given the instruction on punitive damages.\n33. Conclusion. An order granting a motion for a new trial in a civ\u00fc case is not immediately appealable in New Mexico except when this Court has granted a writ of superintending control under circumstances demanding extraordinary reUef. In Ught of the evidence presented, and reasonable inferences drawn from that evidence, we find that the trial court improperly granted the motions for new trial and for judgment notwithstanding the verdict. We therefore reverse the trial court and remand for entry of judgment on the verdicts of the jury. The trial court also erred in refusing to instruct the jury on punitive damages. Plaintiffs are entitled to a new trial on the issue of punitive damages which, if awarded, must be \u201creasonably related to the injury and to the damages given as compensation and not disproportionate to the circumstances.\u201d See UJI 13-1827 NMRA 1996 (punitive damages instruction).\n34. IT IS SO ORDERED.\nBACA, C.J., and FRANCHINI, J., concur.\n. The trial court originally dismissed Michaels\u2019 complaint for failure to state a claim on the basis that workers' compensation is the exclusive remedy. Michaels appealed this decision, and the appeal was certified to this Court. In Michaels v. Anglo American Auto Auctions, 117 N.M. 91, 869 P.2d 279 (1994), we held that Michaels could pursue an action for retaliatory discharge independently of the Workers\u2019 Compensation Act. We remanded the case to the trial court for a trial on the merits. Id. at 94, 869 P.2d at 282. It also should be noted that Plaintiffs had originally filed suit against Anglo American Auto Auctions, Inc., which was doing business as the Albuquerque Auto Auction, but they substituted ADT when it purchased Anglo American.\n. In its answer brief, ADT asserts that the OSHA violations were not relevant to the retaliatory discharge claims. The trial court apparently agreed with ADT, noting in its decision letter that \u201c[i]n argument, it was never pointed out how such asserted facts supported the claim of retaliatory discharge or the amount of damages. Much of the evidence went only to the violations of OSHA regulations. Most of the above had no or very little relevance to retaliatory discharge.\" The Plaintiffs' theory of the case, however, was that ADT had terminated Rhein because he had alerted OSHA to health and safety violations. We cannot agree with the trial court that evidence of OSHA violations is irrelevant to Plaintiffs\u2019 claim of retaliatory discharge.\n. In Townsend v. United States Rubber Co., we held that a court could not grant a motion for a judgment n.o.v. based upon the evidence or credibility of the witnesses, and that it \u201chad no alternative but to grant a new trial rather than the motion for judgment notwithstanding the verdict.\u201d 74 N.M. 206, 210, 392 P.2d 404, 407 (1964). For the reasons mentioned above, we now believe that it is improper for the trial court to grant a motion for a new trial in this situation. Any language from Townsend that is inconsistent with this opinion is hereby overruled.\n. We recognize that, while a trial court must already have denied a directed verdict, e.g., Bondanza v. Matteucci, 59 N.M. 354, 356, 284 P.2d 1024, 1025 (1955) (stating that \"we think it beyond question that a motion for a directed verdict at the close of all the evidence is a prerequisite to a motion for judgment notwithstanding verdict\u201d), trial courts otherwise disposed to direct a verdict often allow a case to go to the jury as a matter of judicial economy. If the court grants a motion for directed verdict and that directed verdict is reversed by an appellate court, there must be an entirely new trial. See Tafoya v. Seay Bros. Corp., 119 N.M. 350, 353, 890 P.2d 803, 806 (1995) (remanding for new trial after reversing order granting directed verdict); Flores v. Baca, 117 N.M. 306, 314, 871 P.2d 962, 970 (1994) (same); Davis v. Gabriel, 111 N.M. 289, 292, 804 P.2d 1108, 1111 (Ct.App.1990) (same). However, if the court grants a motion for j.n.o.v. and it is reversed, the jury verdict is then merely reinstated. See Leonard Motor Co. v. Roberts Corp., 85 N.M. 320, 323, 512 P.2d 80, 83 (1973) (reinstating jury verdict after reversing order granting judgment notwithstanding verdict); Montoya v. General Motors Corp., 88 N.M. 583, 587, 544 P.2d 723, 727 (Ct.App.1975) (same), cert. denied, 89 N.M. 5, 546 P.2d 70 (1976).", "type": "majority", "author": "RANSOM, Justice." } ], "attorneys": [ "Roehl Law Firm, P.C., Mark E. Komer, Albuquerque, for Plaintiffs-Appellants.", "Law Office of Peter H. Johnstone, P.C., Peter H. Johnstone, Albuquerque, for Defendant-Appellee." ], "corrections": "", "head_matter": "1996-NMSC-067\n930 P.2d 783\nDavid RHEIN and Timothy Michaels, Plaintiff-Appellants, v. ADT AUTOMOTIVE, INC., d/b/a, Albuquerque Auto Auction, Defendant-Appellee.\nNo. 23285.\nSupreme Court of New Mexico.\nNov. 26, 1996.\nRoehl Law Firm, P.C., Mark E. Komer, Albuquerque, for Plaintiffs-Appellants.\nLaw Office of Peter H. Johnstone, P.C., Peter H. Johnstone, Albuquerque, for Defendant-Appellee." }, "file_name": "0646-01", "first_page_order": 696, "last_page_order": 705 }