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Apodaca v. AAA Gas Co.3/11/2003
re the rare exception and typically involve cases where one of the parties conceals material information, labors under some physical or mental disability that impedes effective litigation, or where the different amounts in controversy between the two actions would render preclusion unfair. Id. cmt. j. None of these instances is present here and Plaintiffs have not made a sufficient showing of another extraordinary reason to make an exception to preclusion principles.
We hold that where an appellate court finds the trial court did not abuse its discretion in denying an amendment under Rule 1-015(A) and/or (B) in the first action because the motions were untimely, a plaintiff may not avoid the preclusive effect of the trial court's ruling, absent an express reservation of the plaintiff's right to maintain a second action or another recognized exception. See Restatement ยง 26. Having determined that res judicata applies, we do not consider collateral estoppel. Jeanes v. Henderson, 688 S.W.2d 100, 103 (Tex. 1985).
V. Peremptory Challenges
The trial court initially ruled Defendants were each entitled to five peremptory challenges because of their diverse interests but Plaintiffs were only entitled to a total of five even though they sought separate relief. Ultimately, the court allowed five peremptory challenges per family, five to the Apodacas and five to the Velasquezes. Plaintiffs argue that each Plaintiff, Gilbert Apodaca, Barbara Apodaca, Jeffrey Velasquez, and Larissa Velasquez, was entitled to five challenges, for a total of twenty. Plaintiff relies on Rule 1-038(E) NMRA 2003, which states:
In cases tried before a jury of twelve, each party may challenge five jurors peremptorily. When there are two or more parties defendant, or parties plaintiff, they will exercise their peremptory challenges jointly . . . . However, if the relief sought by or against the parties on the same side of a civil case differs, or if their interests are diverse, or if cross-claims are to be tried, the court shall allow each such party on that side of the suit . . . five peremptory challenges if the case is to be tried before a jury of twelve.
(Emphasis added.) The Rule sets out three exceptions to the general rule that multiple parties, who are on the same side of the litigation, must exercise peremptory challenges jointly. In particular, Plaintiffs point to the first exception: "if the relief . . . differs . . . the court shall allow each party . . . five peremptory challenges." Id. In their view, Plaintiff-wives could have filed their own complaints for loss of consortium, apart from their husbands' claims for negligence and products liability because loss of consortium is a separate and distinct claim for damages. Plaintiff-wives do not claim to have diverse interests and there were no cross-claims filed.
The only question we consider is whether the wives seek "different relief" from the husbands within the meaning of Rule 1-038(E). Plaintiffs have not cited any case that defines "different relief" under the Rule and this Court has found none. A determination of what is meant by "different relief" in the context of Rule 1-038(E) is a question of law which we review de novo. In Re Daniel H., No. 22814, slip op. at 8 (N.M. Ct. App. Mar. 4, 2003).
The rules pertaining to statutory construction apply when a court interprets procedural rules of the Supreme Court. In re Dominick Q., 113 N.M. 353, 354, 826 P.2d 574, 575 (Ct. App. 1992). "We read the rule in accordance with its plain meaning. When the language of the Rule is not defined in the Rule, it is given its ordinary meaning. Our role is to discern and give effect to the author's intent."
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