DICKENSON V. REGENT OF ALBUQUERQUE, LTD., 1991-NMCA-071, 112 N.M. 362, 815
P.2d 658 (Ct. App. 1991)
MILTON DICKENSON,
Plaintiff-Appellant/Cross-Appellee,
vs.
REGENT OF ALBUQUERQUE, LTD. and BOB MOORE,
Defendants-Appellees/Cross-Appellants
COURT OF APPEALS OF NEW MEXICO
1991-NMCA-071, 112 N.M. 362, 815 P.2d 658
Appeal from the District Court of
Bernalillo County; Rozier E. Sanchez, District Judge.
Petition for Writ of Certiorari Denied
August 9, 1991
WILLIAM A. L'ESPERANCE, Albuquerque, New
Mexico, Attorney for Plaintiff-Appellant/Cross-Appellee.
THOMAS P. GULLEY, CIVEROLO, HANSEN &
WOLF, P.A., Albuquerque, New Mexico, Attorneys for
Defendants-Appellees/Cross-Appellants.
{1} Plaintiff appeals the
Jury's award of damages and the trial court's denial of his motion for additur
or a new trial. Defendants cross-appeal the trial court's award of costs. Our
calendar notice proposed summary affirmance of plaintiff's appeal and summary
reversal of defendants' appeal. Both parties have filed memoranda in support
and in opposition respectively to our proposed disposition. In addition,
defendants filed a motion for leave to reply to plaintiff's response to the calendar
notice. Our appellate rules do not permit the filing of such replies.
Landavazo
v. New Mexico Dep't of Human Servs., 106 N.M. 715,
749 P.2d 538 (Ct. App.
1988). Defendants' motion is therefore denied. Not being persuaded by
plaintiff's arguments, we affirm on plaintiff's appeal and reverse on
defendants' cross-appeal.
{*363} PLAINTIFF'S
APPEAL
{2} Plaintiff contends the
jury failed to follow the instructions given, arguing the damage award was too
low. However, as we observed in the calendar notice, even if "the evidence
would have sustained an award of a greater amount, the fact that the verdict
was for a lesser amount does not show that the jury failed to follow the
instruction."
Strickland v. Roosevelt County Rural Elec. Coop., 99
N.M. 335, 340,
657 P.2d 1184, 1189 (Ct. App. 1982),
cert. denied, 463
U.S. 1209 (1983). Additionally, we disagree with plaintiff's argument that the
trial court erred in denying his post-trial motion for additur or a new trial.
In this regard, plaintiff contends the trial court erred because there was not
substantial evidence to support the jury's award of damages.
{3} In support of his
argument, plaintiff points to evidence adduced at trial that supported a higher
award. However, as we noted in our calendar notice, and as defendants confirmed
in their memorandum in support of our proposed disposition, there was also
conflicting evidence with respect to the extent of plaintiff's damages, his
failure to mitigate damages, and his credibility concerning the injuries he suffered.
Although plaintiff refers to uncontradicted expert testimony to support his
argument, the jury was free to reject uncontradicted expert opinion evidence.
Id.;
Phillips v. Smith, 87 N.M. 19,
528 P.2d 663 (Ct. App. 1974). On these
bases, we decline to hold that the award of damages was inadequate. For the
same reasons, we hold that the trial court did not abuse its discretion in
denying plaintiff's post-trial motion.
Id.
{4} Prior to trial, pursuant
to SCRA 1986, Rule 1-068 defendants tendered an offer of settlement in the
amount of $40,001 plus plaintiff's accrued costs. Plaintiff did not accept that
offer. Defendants later made a second offer in the amount of $150,001.
Plaintiff also rejected that offer and ultimately recovered a verdict of
$11,667.57. Defendants moved for their costs as of the date of the first offer
of judgment, but the trial court only allowed defendants the recovery of costs
as of the date of the second offer, on the basis that the second offer
superseded the first offer.
{5} Rule 1-068 provides in
part that "if the judgment finally obtained by the offeree is not more
favorable than the offer, the offeree must pay the costs incurred after the
making of the offer." The judgment ultimately recovered by plaintiff was
not more favorable than the first offer. The advisory committee notes to the
corresponding federal rule state that "in the case of successive offers
not accepted, the offeror is saved the costs incurred after the making of the
offer [that] was equal to or greater than the judgment ultimately
obtained."
See Fed. R. Civ. P. 68, Notes of Advisory Committee on
Rules.
See also Benavidez v. Benavidez, 99 N.M. 535, 539,
660 P.2d 1017,
1021 (1983) (it is appropriate to look at federal law construing a federal rule
that is the same as the New Mexico rule).
{6} Consequently, we hold
that defendants could recover their costs from the date of the first offer. We
thus reverse the trial court's judgment with respect to the awarding of costs
to defendants, with instructions to award defendants their costs from and after
the date of the first offer.