DeAnda v. New Pathways, Inc.

1 This memorandum opinion was not selected for publication in the New Mexico Appellate Reports.
2 Please see Rule 12-405 NMRA for restrictions on the citation of unpublished memorandum
3 opinions. Please also note that this electronic memorandum opinion may contain
4 computer-generated errors or other deviations from the official paper version filed by the Court of
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6 IN THE COURT OF APPEALS OF THE STATE OF NEW MEXICO
7 LAUREL L. DeANDA, individually and
8 in her capacity as the Personal Representative
9 of the Estate of KEVIN PHILLIP DeANDA,
10 VICTOR DeANDA, individually, and
11 LYNELLE STURGEON, individually,
12 Plaintiffs-Appellees,
13 v. No. 32,148
14 NEW PATHWAYS, INC.,
15 Defendant-Appellant.
16 APPEAL FROM THE DISTRICT COURT OF BERNALILLO COUNTY
17 Nan G. Nash, District Judge
18 Yenson, Allen & Wosick, P.C.
19 Patrick D. Allen
20 Michael S. Jahner
21 Albuquerque, NM
22 for Appellees
23 Brennan & Sullivan, P.A.
24 Michael W. Brennan
25 Joan M. Waters
26 Santa Fe, NM
27 for Appellant
28 MEMORANDUM OPINION
1 FRY, Judge.
2 {1} Kevin DeAnda died in his sleep while a resident of Defendant New Pathways,
3 Inc.’s (NPI) supported living facility, Chelwood House. Kevin was twenty-five years
4 old at the time of his death and suffered from asthma, GERD, enlarged tonsils, and
5 was morbidly obese. Kevin also had a history of mental health issues and
6 developmental disabilities, including Asperger syndrome, psychosis, anxiety disorder,
7 and major depression. Months before his death, Kevin was diagnosed with severe
8 obstructive sleep apnea.
9 {2} On the night of his death, Kevin was last checked by NPI staff at 4:00 a.m.
10 Kevin was asleep on his stomach, and an NPI staff member asked Kevin to roll over
11 onto his back. It is undisputed that no further checks were made on Kevin until 6:50
12 a.m., at which time another employee of NPI entered Kevin’s room to administer
13 medication and found Kevin unresponsive.
14 {3} Based upon alleged acts and omissions of NPI staff, Kevin’s family
15 subsequently filed suit against NPI for wrongful death, negligence, negligence per se,
16 violation of the Unfair Practices Act (UPA), and loss of consortium. The jury found
17 in favor of the DeAnda family. We affirm the judgment of the district court.
2
1 {4} Because this is a memorandum opinion and because the parties are familiar with
2 the procedural history and facts of the case, we reserve further discussion of pertinent
3 facts for our analysis.
4 DISCUSSION
5 Dr. Kevin Olden’s Testimony
6 {5} NPI contends that the district court erred in admitting the testimony of
7 Plaintiffs’ expert, Dr. Olden, because Dr. Olden was not qualified to testify regarding
8 Kevin’s cause of death or the appropriate treatment for sleep apnea. NPI further
9 argues that even if Dr. Olden was qualified, his testimony was too speculative and
10 conjectural as a matter of law to establish causation. At trial, Plaintiffs proffered Dr.
11 Olden to testify from an “internal medicine clinical perspective” that Kevin’s death
12 was due to sleep apnea, that NPI’s failure to monitor Kevin resulted in the fatal apneic
13 episode, and that there was no evidence of heart failure. Dr. Olden was ultimately
14 recognized as an expert in internal medicine and psychiatry.
15 {6} NPI did not object to Dr. Olden’s qualifications or testimony until trial. The
16 district court asked NPI why, despite the district court’s pretrial scheduling order
17 mandating that objections to expert qualifications and testimony be made within three
18 weeks of the expert’s deposition, NPI waited until trial to make its objection. NPI’s
19 counsel responded that “other judges had me doing things for them, deadlines I had
3
1 to meet, and I was preparing for a month-long trial in federal court. . . . But those are
2 deadlines, unfortunately, professionally I had to meet, and admittedly, I missed your
3 deadline.” The district court accordingly denied NPI’s objection to Dr. Olden’s
4 qualifications and testimony as untimely.
5 {7} NPI’s first point on appeal challenging Dr. Olden contends that the district court
6 abused its discretion in ruling that their objection was untimely because NPI’s
7 objection was to Dr. Olden’s qualifications and therefore no pretrial hearing under
8 Alberico was required. NPI states in its brief in chief:
9 Alberico set out the procedure to be followed in determining whether or
10 not the scientific technique or method upon which an expert opinion is
11 based is sufficiently reliable to prove what it purports to prove. In the
12 case at bar, there was no need to request an Alberico hearing, because
13 Dr. Olden was not qualified as an expert. Since he is not qualified as an
14 expert, the court need not reach the issue of whether his opinions are
15 based on scientific technique or method.
16 This is not what NPI argued below. In fact, NPI acknowledged that it missed the
17 district court’s deadline to object either to Dr. Olden’s qualifications or to his
18 testimony; it did not argue that it was exempt from complying with the district court’s
19 pretrial scheduling order in regard to Dr. Olden’s qualifications. Therefore, we will
20 not consider this argument on appeal. See Woolwine v. Furr’s, Inc., 1987-NMCA-
21 133, ¶ 20, 106 N.M. 492, 745 P.2d 717 (stating that to “preserve an issue for review
4
1 on appeal, it must appear that [the] appellant fairly invoked a ruling of the [district]
2 court on the same grounds argued in the appellate court”).
3 {8} On NPI’s second point regarding Dr. Olden’s testimony, we understand NPI’s
4 contention to be that Dr. Olden’s testimony was too speculative and conjectural to
5 establish causation because Dr. Olden lacked a sufficient factual predicate upon which
6 to base an opinion that Kevin’s death was caused by any acts or omissions of NPI
7 employees. The basis of NPI’s argument is that there was no evidence that Kevin was
8 having an apneic episode the morning he died, nor was there specific evidence as to
9 when Kevin stopped breathing or when his heart stopped. Thus, NPI appears to argue
10 that there was no basis for Dr. Olden’s conclusion that Kevin died as the result of an
11 apneic episode and that the NPI staff’s failure to make routine checks on Kevin
12 “probably created the circumstances [that] led to his death.” More specifically, NPI
13 challenges Dr. Olden’s testimony that had NPI staff checked Kevin every fifteen to
14 thirty minutes, there was a better chance that the staff could have intervened to save
15 Kevin’s life.
16 {9} The admission or exclusion of this testimony was within the district court’s
17 discretion. Zia Trust, Inc. v. Aragon, 2011-NMCA-076, ¶ 14, 150 N.M. 354, 258 P.3d
18 1146. “[T]he district court has the duty to make sure that an expert’s testimony rests
19 on both a reliable foundation and is relevant to the task at hand so that speculative and
5
1 unfounded opinions do not reach the jury.” Id. (internal quotation marks and citation
2 omitted).
3 {10} We conclude that the district court did not abuse its discretion in admitting Dr.
4 Olden’s testimony. Dr. Olden testified that his review of the circumstances
5 surrounding Kevin’s death included review of the autopsy report by pathologist Dr.
6 Karen Cline-Parhamovich, Kevin’s medical records, including Dr. Peter Guido’s
7 records, NPI’s records related to Kevin, and pathologist Dr. Patricia McFeeley’s
8 deposition. These documents and Dr. Olden’s extensive medical background in
9 internal medicine provided a sufficient basis for Dr. Olden to testify to a reasonable
10 degree of medical probability that Kevin suffered an apneic episode that contributed
11 to his death. For instance, both Dr. Cline-Parhamovich and Dr. McFeeley testified
12 that the primary physical cause of death was complications of morbid obesity and
13 severe obstructive sleep apnea. It was also undisputed that the last contact Kevin had
14 with NPI staff while alive was an NPI staff member asking Kevin to roll onto his
15 back. Dr. Olden then testified, consistent with Dr. Guido, a sleep specialist who
16 provided testimony regarding the effects of sleep apnea, that people suffering from
17 sleep apnea are more likely to suffer apneic episodes while sleeping on their backs.1
1
16 NPI also questions Dr. Olden’s testimony that it was probable that Kevin’s
17 tongue blocked his airway. This testimony by Dr. Olden is also supported by Dr.
18 Guido’s testimony about how sleeping on one’s back could affect someone with
19 obstructive sleep apnea. Dr. Guido testified: “But for most individuals, it would
6
1 It was therefore a reasonable inference from the facts in evidence that Kevin suffered
2 an apneic episode, and it was within the district court’s discretion to admit Dr. Olden’s
3 opinion regarding Kevin’s cause of death. Zia Trust, 2011-NMCA-076, ¶ 19 (“[A]n
4 expert witness may make assumptions based on evidence in the record to reach a
5 conclusion that may be presented to a jury.”).
6 {11} Furthermore, regarding Dr. Olden’s opinion that fifteen- to thirty-minute checks
7 would have increased the likelihood of saving Kevin, it was undisputed by NPI that
8 its staff failed to make any checks in the nearly three-hour window when Kevin’s
9 death occurred. Although it is unknown at what exact moment during those three
10 hours Kevin’s heart stopped, it was hardly speculative for Dr. Olden to conclude that
11 NPI staff aware of and trained to address Kevin’s condition would be better positioned
12 to intervene and thereby increase Kevin’s chance of survival by performing more
13 frequent checks suggested by Dr. Olden’s testimony. This is especially true where Dr.
14 Olden’s opinion that NPI should have performed more frequent monitoring of Kevin
15 was based, in part, on NPI’s prior healthcare plans for Kevin recommending fifteen-
16 minute checks while Kevin slept during the day, evidence of NPI staff witnessing
16 typically be worse if they were sleeping on their back. Just the effects of gravity tends
17 to pull the airway downward, tends to cause the tongue to be, you know, more
18 collapsible towards the back of the throat.”
7
1 Kevin’s prior apneic episodes, including face discoloration due to reduced oxygen
2 intake, and Kevin’s noted refusal to wear the CPAP.
3 {12} Finally, it is immaterial, for the purposes of determining the admissibility of Dr.
4 Olden’s testimony, whether NPI’s pathologist concluded in contradiction to Dr. Olden
5 that NPI staff would have had to check Kevin within five minutes of his entering
6 respiratory failure in order to resuscitate him. Indeed, this competing testimony
7 highlights the fact that NPI’s criticisms of Dr. Olden’s testimony went to the weight
8 it should have been afforded by the jury and not to its admissibility. See Wood v.
9 Citizens Standard Life Ins. Co., 1971-NMSC-011, ¶ 19, 82 N.M. 271, 480 P.2d 16110 (“Once a medical witness has qualified to give an expert medical opinion upon a
11 particular issue, the weight, if any, to be given [the expert’s] opinion on [the] issue,
12 and the resolution of conflicts between [the expert’s] opinion and the opinions of other
13 medical experts on the issue, are for the trier of the facts.”). Accordingly, because Dr.
14 Olden’s opinions were neither speculative nor conjectural, the district court did not
15 abuse its discretion in admitting Dr. Olden’s testimony.
16 {13} Because we conclude that Dr. Olden’s testimony was properly admitted, we do
17 not reach NPI’s related argument that in the absence of his testimony there was
18 insufficient evidence for the jury to conclude that any acts or omissions of NPI staff
19 were a cause of Kevin’s death. Similarly, while we agree with NPI that “Plaintiffs
8
1 failed to prove a claim of ‘loss of chance,’ ” it does not impact our decision because
2 Plaintiffs never pursued a theory of loss of chance nor was such a claim submitted for
3 the jury’s consideration.
4 The New Mexico Department of Health (NMDOH) Exhibits
5 {14} NPI contends that the district court erred in admitting two documents, Exhibits
6 27 and 33, relating to the NMDOH’s investigation into Kevin’s death. Exhibit 27 is
7 the NMDOH investigator’s actual report, while Exhibit 33 is the investigator’s letter
8 to NPI informing it of the investigator’s findings. The district court admitted these
9 exhibits in accordance with Rule 11-803(H) (2011) NMRA.
10 {15} At the time of trial, Rule 11-803(H)(3) (2011) provided that “[r]ecords, reports,
11 statements or data compilations, in any form, of public offices or agencies, setting
12 forth . . . factual findings resulting from an investigation made pursuant to authority
13 granted by law” are admissible “unless the source of information or other
14 circumstances indicate lack of trustworthiness.” NPI first argues that the
15 investigator’s findings of “neglect” by NPI constitute legal conclusions, not factual
16 findings, and they are therefore outside the scope of Rule 11-803(H). NPI argues
17 secondly that the findings in the report are untrustworthy because the investigator had
18 no particular expertise in the provision of services to developmentally disabled
19 individuals and the factual findings in Exhibit 27 were not the result of a hearing in
9
1 the nature of a judicial proceeding. Finally, NPI argues that the reports were not
2 relevant to any fact at issue and were unduly prejudicial. We address these
3 contentions in turn and review the admission of these exhibits for abuse of discretion.
4 Gonzales v. Surgidev Corp., 1995-NMSC-036, ¶ 21, 120 N.M. 133, 899 P.2d 576.
5 {16} First, admission of the NMDOH report was within the district court’s discretion
6 even if NPI correctly characterized the report’s factual findings as legal conclusions.
7 See id. ¶ 24 (“[P]ortions of investigatory reports otherwise admissible under [Rule 11-
8 803(H)(3) (2011)] are not inadmissible merely because they state a conclusion or
9 opinion. As long as the conclusion is based on a factual investigation and satisfies the
10 Rule’s trustworthiness requirement, it should be admissible along with other portions
11 of the report.” (internal quotation marks and citation omitted)). NPI makes no
12 argument that any conclusions in the report were not based on a factual investigation.
13 {17} Second, NPI failed to meet its burden to show the untrustworthiness of the
14 NMDOH exhibits either on the basis of the investigator’s qualifications or because the
15 reports were not the result of a hearing in the nature of a judicial proceeding.
16 Gonzales, 1995-NMSC-036, ¶ 25 (“[T]he burden of proving untrustworthiness is on
17 the party opposing admission of the report.”). In Gonzales, our Supreme Court
18 adopted four factors to aid in determining the trustworthiness of a public record: “(1)
19 the timeliness of the investigation[,] (2) the investigator’s skill or experience[,] (3)
10
1 whether a hearing was held[, and] (4) possible bias when reports are prepared with a
2 view to possible litigation.” Id. ¶ 24.
3 {18} In this case, the investigator’s qualifications do not indicate a lack of
4 trustworthiness. Without delving into the investigator’s full qualifications, we note
5 that the investigator testified that he has worked as an investigator for the NMDOH
6 for eleven years and has handled approximately 1200 investigations. He also testified
7 that he has worked in the mental health field for eighteen years and holds certification
8 under the National Certification of Investigative Accreditation. Contrary to NPI’s
9 assertions, the investigator’s skills and experience indicate a level of requisite
10 trustworthiness in regard to these exhibits.
11 {19} Furthermore, the fact that the investigator’s report was not the result of a
12 hearing in the nature of a judicial proceeding is not dispositive. In Gonzales, our
13 Supreme Court did not indicate that each of these factors must be met in order to show
14 trustworthiness. See id. ¶ 25 (“The rule assumes admissibility in the first instance but
15 with ample provision for escape if sufficient negative factors are present.” (emphasis
16 added) (internal quotation marks and citation omitted)). NPI does not challenge the
17 timeliness of the NMDOH investigation or argue that the investigation was undertaken
18 in view of potential litigation. And because we conclude that the investigator’s
19 qualifications weigh in favor of the trustworthiness of the report, the fact that his
11
1 conclusions were not the result of a hearing does not tip the scales toward the report’s
2 inadmissibility.
3 {20} Finally, we also reject NPI’s assertion that Exhibits 27 and 33 were not relevant
4 to a fact in issue and that they were unduly prejudicial. See Rules 11-401 and 11-403
5 NMRA. The report detailed the investigator’s findings regarding acts and omissions
6 of NPI staff on the night of Kevin’s death and were thus clearly relevant to Plaintiffs’
7 claims. Furthermore, NPI points us to no authority as to why the use of the word
8 “neglect” in an investigator’s report should be considered unduly prejudicial. In re
9 Adoption of Doe, 1984-NMSC-024, ¶ 2, 100 N.M. 764, 676 P.2d 1329 (stating that
10 where a party cites no authority to support an argument, we may assume no such
11 authority exists). NPI had the opportunity to cross-examine the investigator on his use
12 of the term “neglect” in his report if NPI feared a confusion of terms in the
13 investigator’s report and in the Resident Abuse and Neglect Act. Accordingly, the
14 district court did not abuse its discretion in admitting these exhibits.
15 Loss of Consortium
16 {21} NPI argues that the district court erred in allowing Kevin’s parents’ claim for
17 loss of consortium to go to the jury. A loss of consortium claimant must demonstrate
18 two elements in order to recover damages: (1) that the claimant and the injured party
19 shared a sufficiently close relationship, and (2) that the tortfeasor owed a duty of care
12
1 to the claimant such that it was foreseeable that harm to the injured party would
2 damage the relationship between the injured party and the claimant. Wachocki v.
3 Bernalillo Cnty. Sheriff’s Dep’t, 2011-NMSC-039, ¶ 5, 150 N.M. 650, 265 P.3d 701.
4 NPI does not argue that it was unforeseeable that injury to Kevin would damage the
5 relationship between Kevin and his parents, and therefore we do not consider the
6 second element. NPI argues instead that, as a matter of law, Kevin, as an adult child
7 living outside his parents’ home and sharing no financial or caretaking
8 interdependence, cannot be said to share a sufficiently close relationship with his
9 parents to warrant loss of consortium compensation.
10 {22} Under the “sufficiently close relationship” prong, our Supreme Court recently
11 emphasized that the degree of “mutual dependence” is the key inquiry but also
12 reiterated the myriad of factors that should inform the determination of a claimant’s
13 relationship with the injured party. Wachocki, 2011-NMSC-039, ¶¶ 5, 10. These
14 factors include:
15 [T]he duration of the relationship, the degree of mutual dependence, the
16 extent of common contributions to a life together, the extent and quality
17 of shared experience, and . . . whether the plaintiff and the injured person
18 were members of the same household, their emotional reliance on each
19 other, the particulars of their day[-]to[-]day relationship, and the manner
20 in which they related to each other in attending to life’s mundane
21 requirements.
13
1 Id. ¶ 5 (omission in original) (internal quotation marks and citation omitted); see
2 Lozoya v. Sanchez, 2003-NMSC-009, ¶ 27, 133 N.M. 579, 66 P.3d 948, abrogated on
3 other grounds by Heath v. Mariana Apartments, 2008-NMSC-017, 143 N.M. 657, 180
4 P.3d 664. We review de novo the question of whether a directed verdict is
5 appropriate. Sunwest Bank of Clovis N.A. v. Garrett, 1992-NMSC-002, ¶ 9, 113 N.M.
6 112, 823 P.2d 912.
7 {23} We are unpersuaded by NPI’s argument that demonstrating “mutual
8 dependence” in the context of an adult parent/adult child relationship requires
9 showing “a shared household, financial interdependence and/or caretaking
10 interdependence and a long[]term commitment to continue this interdependence.”
11 While these factors are important, NPI’s argument emphasizes certain Lozoya factors
12 favorable to their position at the expense of utilizing the factors as they were intended:
13 to aid the fact finder in determining whether the relational interest at issue is sufficient
14 to permit recovery of loss of consortium damages. See Lozoya, 2003-NMSC-009, ¶
15 21 (“It is appropriate that the finder of fact be allowed to determine, with proper
16 guidance from the court, whether a plaintiff had a sufficient enough relational interest
17 with the victim of a tort to recover for loss of consortium.”). Contrary to NPI’s
18 assertions, we conclude that Kevin’s disabilities, including his decreased cognitive
19 and emotional capabilities as well as his significant physical and mental health issues,
14
1 distinguish this case from an adult parent/adult child relationship where both parent
2 and child possess a greater degree of overall independence. This is especially true
3 where Kevin’s economic independence resulted from his entitlement to state
4 assistance and such assistance was used, in part, to provide Kevin with access to
5 facilities that could allegedly provide him the care his condition required but that,
6 consequently, removed him from his parents’ home. It would thus be improper to
7 conclude in light of the other evidence put forth by Plaintiffs regarding their
8 relationship with Kevin that because Kevin and his parents did not share a household
9 or economic and caretaking interdependence, his parents did not establish a claim for
10 loss of consortium as a matter of law.
11 Punitive Damages
12 {24} NPI contends that it was error for the district court to instruct the jury on
13 Plaintiffs’ claim for punitive damages. NPI organizes its arguments on this issue
14 under two headings: (1) that there was no evidence from which the jury could find
15 Plaintiffs were entitled to punitive damages, and (2) that the punitive damages claim
16 violates federal constitutional constraints. Upon examination of NPI’s briefing,
17 however, we understand NPI’s argument under the first point to be that there was not
18 sufficient evidence of cumulative conduct to establish corporate recklessness and that
19 the district court erred in admitting Plaintiffs’ “other acts” evidence to prove NPI’s
15
1 culpable mental state. Under the second point, NPI appears to argue that if the jury
2 awarded punitive damages based on the “other acts” evidence, which included
3 exhibits of previous NMDOH investigations of NPI, the punitive damages award
4 would be in violation of constitutional constraints.
5 {25} First, we decline to address NPI’s argument that there was insufficient evidence
6 of cumulative conduct to establish corporate recklessness. The jury was instructed on
7 three alternate theories for awarding punitive damages. Because NPI only challenges
8 the cumulative conduct theory and does not argue that there was insufficient evidence
9 under either of the other two theories, we will not reverse the jury’s award on this
10 basis.2 See Atler v. Murphy Enter., Inc., 2005-NMCA-006, ¶ 16, 136 N.M. 701, 104
11 P.3d 1092 (“When the jury instructions provide two alternative bases for awarding
2
12 We note that NPI states in its reply brief that it does “not waive an argument
13 that the punitive damages award was not supported by a managerial or ratification
14 theory.” NPI made this statement in response to Plaintiffs’ assertion that NPI had
15 waived its argument against the punitive damages award under the managerial or
16 ratification theories by only challenging the insufficiency of the evidence under the
17 cumulative conduct theory. While NPI contends in its reply brief that it did not waive
18 this argument, it is clear that NPI did not make such an argument. The substance of
19 NPI’s contention on this point is its conclusory statement in its reply brief that “[t]here
20 [is] no evidence to support an award of punitive damages under any theory recognized
21 under New Mexico law.” This is insufficient to challenge the punitive damages award
22 under the managerial or ratification theories. See Rule 12-213(A)(4) NMRA (“A
23 contention that a verdict, judgment, or finding of fact is not supported by substantial
24 evidence shall be deemed waived unless the argument identifies with particularity
25 the fact or facts that are not supported by substantial evidence[.]”); see also Hale v.
26 Basin Motor Co., 1990-NMSC-068, ¶ 23, 110 N.M. 314, 795 P.2d 1006 (declining to
27 address the issue raised for the first time in a reply brief).
16
1 punitive damages, we will uphold the jury verdict if there is substantial evidence in
2 the record to support either.”).
3 {26} As to NPI’s argument that the district court erred in admitting “other acts”
4 evidence to prove NPI’s culpable mental state, this argument fails because NPI does
5 not specify any basis in our rules of evidence for excluding such evidence. See ITT
6 Educ. Servs., Inc. v. Taxation & Revenue Dep’t, 1998-NMCA-078, ¶ 10, 125 N.M.
7 244, 959 P.2d 969 (stating that the propositions unsupported by citation to authority
8 will not be reviewed on appeal). We may assume, due to NPI’s use of “other acts”
9 language, that NPI lodges a challenge to this evidence under Rule 11-404(B) NMRA,
10 or that its later use of the phrase “unduly prejudicial” roots NPI’s challenge under
11 Rule 11-403. However, NPI does not provide substantive argument under either of
12 these rules, and it is not this Court’s responsibility to fill in these gaps or guess at a
13 party’s argument. Headley v. Morgan Mgmt. Corp., 2005-NMCA-045, ¶ 15, 137
14 N.M. 339, 110 P.3d 1076 (“We will not review unclear arguments, or guess what [a
15 party’s] arguments might be.”); see Muse v. Muse, 2009-NMCA-003, ¶ 72, 145 N.M.
16 451, 200 P.3d 104 (“We will not search the record for facts, arguments, and rulings
17 in order to support generalized arguments.”).
18 {27} Finally, NPI argues that the punitive damages award must be set aside because
19 of the potential that it was based on evidence contained in exhibits noting injuries
17
1 inflicted on non-parties. See Grassie v. Roswell Hosp. Corp., 2011-NMCA-024, ¶ 51,
2 150 N.M. 283, 258 P.3d 1075. NPI argues that “because the [district] court erred in
3 admitting Plaintiffs’ proffered ‘other acts’ evidence, the jury may well have awarded
4 punitive damages based on these alleged ‘other acts’—none of which involved Kevin
5 or [P]laintiffs.” While noting the hypothetical nature of NPI’s assertion, we
6 nonetheless conclude that NPI failed to preserve this argument. “To preserve an issue
7 for review on appeal, it must appear that appellant fairly invoked a ruling of the
8 [district] court on the same grounds argued in the appellate court.” Woolwine, 1987-
9 NMCA-133, ¶ 20. Any speculation that NPI has now on appeal regarding the
10 potential basis of the jury’s punitive damages award certainly existed before the case
11 was submitted to the jury. And NPI does not alert us to any point in the record where
12 it raised the issue that the jury might improperly base its award on the allegedly
13 improper “other acts” evidence. In fact, despite the availability of UJI 13-1827A
14 NMRA (entitled “[p]unitive damages; evidence of harm or injury to non-parties to the
15 litigation”), NPI never requested this instruction in its proposed jury instructions. UJI
16 13-1827A states:
17 [Plaintiff] has introduced evidence of [harm to others] [risk of harm to
18 others] as a result of [Defendant’s] conduct. You may consider this
19 evidence in determining the nature and enormity of [Defendant’s]
20 wrongful conduct toward [Plaintiff]. You may not, however, include in
21 your award of punitive damages any amount that punishes [Defendant]
22 for harm to others not before this court.
18
1 This instruction would have remedied any error now asserted by NPI regarding the
2 jury’s verdict. Accordingly, NPI failed to preserve this issue by failing to request UJI
3 13-1827A or otherwise objecting to the punitive damages instruction. See Andrus v.
4 Gas Co. of N.M., 1990-NMCA-049, ¶ 26, 110 N.M. 593, 798 P.2d 194 (stating that
5 to preserve error it is necessary to object or tender a correct jury instruction).
6 Attorney Fees and Costs Under UPA
7 {28} The totality of NPI’s argument on its last point states, “NPI hereby incorporates
8 by reference its arguments contained at RP 1345-1377, as if fully stated herein.” NPI
9 has failed to brief this issue, and we will not consider NPI’s argument by reference on
10 appeal. See Rule 12-213(A)(4). Because NPI states in its reply brief that it is unaware
11 that this practice is prohibited by our rules of appellate procedure, we briefly take this
12 opportunity to emphasize that this is, in fact, improper briefing procedure. In State
13 v. Aragon, this Court summarized the reasons why this is improper:
14 The appellate rule concerning briefing does not provide for incorporation
15 of arguments contained in other pleadings. . . . [T]his tactic could be used
16 as a means of avoiding the page limitations placed on briefs by the
17 appellate rules. In sum, to facilitate the opposing party’s responses and
18 this [C]ourt’s decision-making process, [the case] should be decided on
19 the basis of the issues, argument, and authority contained in one
20 manageable set of briefs, as provided for by the rules.
21 1990-NMCA-001, ¶ 4, 109 N.M. 632, 788 P.2d 932. Accordingly, we deem this issue
22 abandoned by NPI. See id. ¶ 5.
19
1 The District Court Can Consider Plaintiffs’ Appellate Attorney Fees and Costs
2 Award On Remand
3 {29} Plaintiffs argue that because NPI challenged the award of attorney fees and
4 costs for Plaintiffs’ UPA claim, Plaintiffs should be awarded their reasonable attorney
5 fees and costs relating to the UPA arguments on appeal. On remand, the district court
6 may consider awarding Plaintiffs appellate attorney fees. See Chavarria v. Fleetwood
7 Retail Corp., 2006-NMSC-046, ¶ 43, 140 N.M. 478, 143 P.3d 717.
8 CONCLUSION
9 {30} Based on the foregoing reasons, we affirm the judgment of the district court.
10 {31} IT IS SO ORDERED.
11
12 CYNTHIA A. FRY, Judge
13 WE CONCUR:
14
15 LINDA M. VANZI, Judge
16
17 TIMOTHY L. GARCIA, Judge
20