COWAN V. POWELL, 1993-NMCA-075, 115 N.M.
603, 856 P.2d 251 (Ct. App. 1993)
Mary COWAN, Plaintiff-Appellee,
vs.
David POWELL, Defendant-Appellant
COURT OF APPEALS OF NEW MEXICO
1993-NMCA-075, 115 N.M. 603, 856 P.2d 251
APPEAL FROM THE DISTRICT COURT OF GRANT
COUNTY. V. LEE VESELY, District Judge
Certiorari not Applied for
John W. Reynolds, Silver City, for
plaintiff-appellee.
Anthony F. Avallone, Thomas R. Figart,
Law Systems of Las Cruces, P.A., Las Cruces, for defendant-appellant.
Apodaca, Judge. Alarid and Chavez, JJ.,
concur.
{1} Defendant David Powell
(Defendant) appeals from a jury verdict for Plaintiff Mary Cowan (Plaintiff) in
which the jury awarded Plaintiff zero dollars in damages in a defamation case.
Although Defendant raises four issues on appeal, he fails to indicate in his
brief-in-chief how two of these issues were preserved below. Thus, we do not
address them.
See SCRA 1986, 12-213(A)(3) (Repl.1992) (brief-in-chief
required to contain argument stating how each issue was preserved below). We
consolidate the remaining two issues and rephrase them as one issue -- whether
a verdict for Plaintiff but awarding Plaintiff no damages is, as a matter of
law, a verdict for Defendant. The answer to this question determines which
party was the prevailing party and therefore entitled to an
{*604}
award of costs in the trial court. We hold that, under the two-step process
established for defamation suits under New Mexico's uniform jury instructions,
see
SCRA 1986, 13-1002 and 13-1010 (Repl.1991), the jury's verdict was one in favor
of Plaintiff and was not inconsistent. We thus conclude that the trial court
did not err in refusing to grant Defendant's motion for judgment
notwithstanding the verdict and in awarding costs to Plaintiff.
{2} Plaintiff, an
administrator at Western New Mexico University (University), sued Defendant, a
University professor, for defamation. Among other instructions, SCRA 13-1002
and SCRA 13-1010 were given to the jury. Additionally, two verdict forms were
submitted to the jury. One stated, "We find for the Plaintiff in the sum
of $ ___ for actual damages and award $ ___ for punitive damages." The
other verdict stated, "We find for Defendant Powell." The jury
verdict entered stated, "We find for the Plaintiff in the sum of $ 0 for
actual damages and award $ 0 for punitive damages. Signed, Jim Matthews,
Foreman."
{3} After the jury was
excused, Defendant moved for judgment notwithstanding the verdict, requesting
the trial court to enter judgment for Defendant. The trial court denied the
motion and rendered a judgment on the verdict, awarding Plaintiff $ 1,620.10 as
costs.
{4} Generally, when a jury
verdict is contradictory or confusing, the trial court has a duty to point out
the inconsistency to the jury and send the verdict back with appropriate
instructions to agree on the correct form of a verdict.
See Marr v. Nagel,
59 N.M. 21, 32,
278 P.2d 561, 567 (1954);
Waisner v. Jones, 103 N.M.
749, 750,
713 P.2d 565, 566 (Ct.App.1986). If the jury fails to reach an
agreement on the verdict, the appropriate remedy is to grant a new trial.
Waisner,
103 N.M. at 750, 713 P.2d at 566. This procedure was not followed in this case.
Instead, Defendant moved for judgment notwithstanding the verdict, requesting
the trial court to enter judgment for Defendant. Defendant argues on appeal, as
he did in the trial court, that, as a matter of law, the jury verdict was
essentially a verdict for Defendant because it indicated that Plaintiff failed
to prove damages.
{5} SCRA 13-1002(B), which
outlines the various elements of a cause of action for defamation, states in
part:
To establish the claim of defamation on the part of
defendant, the plaintiff has the burden of proving each of the following
contentions:
(8) The communication proximately caused actual injury
to plaintiff's reputation . . . .
SCRA 13-1010 states in part:
If you should decide in favor of the plaintiff on the
question of liability, you must then fix the amount of money which will
reasonably and fairly compensate plaintiff for the actual injury proximately
caused by the defamatory communication.
Plaintiff claims and has the burden of proving that
the defamatory communication proximately caused one or more of the following
injuries:
In determining the amount of damages, you may only
award money to compensate for the above-listed actual injuries proved by the
plaintiff to have been suffered by [him] [her]. It is not necessary for
plaintiff to present evidence which assigns an actual dollar value to the
injuries. In determining compensation for plaintiff's actual injuries, if any,
you should follow your conscience as impartial jurors, using calm and
reasonable judgment and being fair to all parties.
{6} These jury instructions
clearly establish a two-step process for reaching a verdict: the jury first
determines, under SCRA 13-1002, whether the plaintiff was defamed and then,
under SCRA 13-1010, determines the amount of compensation, if any, the
plaintiff should receive. SCRA 13-1010 does not expressly prohibit, should the
jury decide in favor of the plaintiff, the
{*605}
award of zero dollars in damages. Additionally, SCRA 13-1002 required
Plaintiff only to prove that she suffered actual injury to her reputation as
one of the elements of the cause of action; it did not require that she prove
that the injury was for monetary damages.
Cf. Newberry v. Allied Stores,
Inc., 108 N.M. 424, 429,
773 P.2d 1231, 1236 (1989) (actual injury in
defamation action not limited to out-of-pocket loss). Although the issue raised
in this appeal may have been avoided had the jury awarded Plaintiff some
nominal amount such as one dollar or one cent in damages, common sense would
tell us that that is exactly what the jury was attempting to do by its verdict
-- find that Plaintiff had indeed been injured but that she sustained very
little or nominal damages. In either case, it is ultimately a symbolic gesture
indicating both a moral and legal victory of sorts. We thus determine that the
portion of the verdict finding Defendant liable to Plaintiff was not nullified
by the award of zero dollars in damages. This determination is reinforced by
the jury's rejection of the form of verdict stating "We find for Defendant
Powell."
{7} We believe our holding is
supported by well-established New Mexico law that jury instructions are to be
considered as a whole.
State v. Duncan, 113 N.M. 637, 644,
830 P.2d 554,
561 (Ct.App.1990),
aff'd, 111 N.M. 354,
805 P.2d 621 (1991).
Additionally, since the uniform jury instructions were adopted, trial courts
must give them without substitution or substantive modification.
Id.
Here, the trial court presented SCRA 1986, 13-2002 (Repl.1991), which directs
the jury to consider the instructions given as a whole, without emphasizing one
instruction or disregarding others. There is a presumption that jurors will
follow the instructions they are given.
State v. Clark, 108 N.M. 288,
310,
772 P.2d 322, 344,
cert. denied, 493 U.S. 923, 110 S. Ct. 291, 107
L. Ed. 2d 271 (1989). Thus, we presume the jury here applied the analysis set
out in the instructions: first, determining whether Plaintiff had established
Defendant's liability, and next, determining the amount of damages that would
compensate her.
{8} The New Mexico cases
relied upon by Defendant,
Marr, 59 N.M. at 31-33, 278 P.2d at 567-68,
and
Callaway v. Olguin, 83 N.M. 767,
497 P.2d 978 (Ct.App.1972), do not
compel reversal. First, they were decided before the adoption of the Uniform
Jury Instructions.
{9} Second, the fact
situations in both
Marr and
Callaway are distinguishable. In
Marr,
a personal injury case, special interrogatories were submitted to the jury. One
asked the jury to determine whether the defendants were negligent in causing
the auto accident. The jury answered this interrogatory affirmatively. The jury
was then asked to assess damages, if any, in favor of Marr, Russell, and J.V.
Russell. They awarded damages to Marr and Russell, who were involved in the
accident, but wrote "none" next to the name of J.V. Russell,
Russell's husband. The jury was not asked whether it found in J.V. Russell's
favor and against the defendants on his claim for deprivation of the services
of his wife. Consequently, the jury's verdict was confusing because it was not
clear whether the jury intended to find for J.V. Russell on his cause of
action.
Marr, 59 N.M. at 30-31, 278 P.2d at 567-68.
{10} In
Callaway, the
trial court had directed a verdict for the plaintiff on the issue of liability,
and the only issue submitted to the jury was the amount of damages.
Callaway,
83 N.M. at 768, 497 P.2d at 979. The jury's only option, if it wanted to find
for the defendant, was to award the plaintiff zero dollars in damages.
Id.
at 769, 497 P.2d at 980. On the other hand, under the facts of this appeal, the
jury had the option under the instructions of finding for Defendant. It clearly
rejected that option under the form of verdict it elected to adopt. Thus,
unlike in
Marr, the verdict was not ambiguous, and, unlike in
Callaway,
the verdict was not intended to be a verdict for Defendant.
{11} The other cases relied
upon by Defendant are also unpersuasive.
Schiavone Construction Co. v. Time,
Inc., 646 F. Supp. 1511 (D.N.J.1986),
aff'd in part and rev'd in part,
847 F.2d 1069 (3d Cir.1988),
{*606} is
inapplicable to the facts of this appeal because the case concerned the trial
court's determination that the plaintiff was "libel-proof." As a
result, the plaintiff could not maintain a cause of action for libel.
Bytner
v. Capital Newspaper, Div. of Hearst Corp., 112 A.D.2d 666, 492 N.Y.S.2d
107 (1985),
aff'd, 67 N.Y.2d 914, 501 N.Y.S.2d 812, 501 N.Y.S.2d 812
(1986), involved the dismissal of the plaintiff's cause of action because the
plaintiff, a public figure, had failed to prove the malice or reckless
disregard required by
New York Times Co. v. Sullivan, 376 U.S. 254,
286-88, 84 S. Ct. 710, 729-730, 11 L. Ed. 2d 686 (1964).
Bytner, 492 N.Y.S.2d
at 109. Neither case included facts analogous to this appeal.
{12} Although
Lakian v.
Globe Newspaper Co., 399 Mass. 379, 504 N.E.2d 1046 (1987), appears similar
to the facts of this appeal in that the jury, seemingly contradictorily,
determined that portions of an article about the plaintiff were defamatory but
nonetheless did not award the plaintiff any damages,
Lakian also does
not require reversal. In that case, the trial court entered a judgment that the
plaintiff would recover nothing and awarded the defendants their token
statutory costs.
Id. 504 N.E.2d at 1047. The plaintiff argued he was
entitled to nominal damages as a matter of law.
Id. The court rejected
his argument because he had allowed the jury to be instructed that the
plaintiff had to prove actual injury and that the jury "may" award
nominal damages if actual but insignificant injury was proven.
Id. at
1048. The jury was not required to award nominal damages.
Id. In this
circumstance, the plaintiff accepted that he would receive nominal damages only
if actual injury was found.
Id. at 1049. Additionally, the court
disapproved of the plaintiff's taking an appeal when the most he could gain was
nominal damages of $ 1.00.
Id. Lakian did not hold that, as a matter of
law, the jury's verdict was a verdict for the defendants.
{13} Finally, none of these
cases apparently involves jury instructions similar to New Mexico's uniform
jury instructions. We thus decline to follow them.
{14} We hold that SCRA
13-1002 and 13-1010, read together, establish a two-step process under which
the jury first determines whether the defendant is liable for defamation and
then decides the amount of damages to be awarded. We also hold that the jury
instructions do not require a plaintiff to prove that her injuries have a
monetary value as part of her case. We thus conclude that, under the peculiar
procedural facts of this appeal, the trial court did not err in refusing to
grant Defendant's motion for judgment notwithstanding the verdict and in
entering a judgment awarding costs to Plaintiff. We therefore affirm.