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Apodaca v. AAA Gas Co.3/11/2003
Servs., 117 N.M. 481, 485, 872 P.2d 899, 903 (Ct. App. 1994). To determine whether multiple parties are diverse under the Rule, courts apply a four factor test. Id. We find the first three factors useful to determine whether parties are diverse because of the relief requested and we adopt it with some modification. To determine whether the relief is different, courts may consider "(1) whether the parties employed the same attorneys; (2) whether separate answers [or complaints] were filed; (3) whether the [relief sought by the parties is] antagonistic." See id. " he trial court should [also] consider the extent to which the alleged diversity of [relief] will affect the choice of individual jurors when considered in light of the common interests of [one plaintiff as against another plaintiff] in the selection of jurors." Id.
Applying these factors to the facts before the trial court, we find that the court's decision to deny additional peremptory challenges to Plaintiff-wives was not an abuse of discretion. Plaintiffs employed the same counsel who filed one complaint on their behalf. This indicates that counsel perceived no conflicts in representing all four Plaintiffs. Plaintiff-husbands sought money damages for personal injury , lost wages, pain and suffering, etc. Plaintiff-wives sought money damages for loss of consortium and attendant care services for their husbands. They shared a common interest in holding Defendants liable for their damages. We perceive no reason why Plaintiff-wives would have selected different jurors. Nor do we perceive any conflict in the relief sought. Rather, there is a unity of interest in holding Defendants liable. We find no abuse of discretion in denying extra peremptory challenges to Plaintiff-wives.
AAA Gas's Cross-Appeal
AAA Gas raises three issues on cross-appeal: (1) the jury should not have been instructed that AAA Gas could be held strictly liable for a non-delegable duty, (2) the jury should not have been instructed on punitive damages, and (3) AAA Gas should have been awarded its costs pursuant to Rules 1-054 and 1-068 NMRA 2003. Because the judgment of the trial court in favor of Defendants remains undisturbed, we do not reach the issues of whether the jury instructions were proper. See Moody v. Stribling, 1999-NMCA-094, 47, 127 N.M. 630, 985 P.2d 1210 ("In order to appeal, a party must be aggrieved. To be aggrieved, a party must have a personal or pecuniary interest or property right adversely affected by the judgment.") (internal quotation marks omitted). We address only the issue of whether Defendants were entitled to costs under Rules 1-068 or 1-054(D).
Following the entry of judgment, Defendant AAA Gas filed a cost bill in the amount of $43,492.92 as a prevailing party under Rule 1-054(D) and for post-offer costs under Rule 1-068. Following arguments, the trial court denied the cost bill and ordered that the parties bear their respective costs. AAA Gas contends that the court erred as a matter of law under Rule 1-068, which it argues required the trial court to award them post-offer costs. Moreover, Defendant asserts the court abused its discretion by refusing to award it costs as the prevailing party under Rule 1-054(D). We address each Rule separately.
Rule 1-068
Rule 1-068 provides in relevant part:
At any time more than ten (10) days before the trial begins, a party defending against a claim may serve upon the adverse party an offer to allow judgment to be taken against him for the money or property or to the effect specified in his offer, with costs then accrued. . . . An offer not accepted shall be deemed withdrawn . . . If the judgment finally obtained by the offe
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