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Morales v. Golston12/15/2005
d pursuant to Rule 58 in accordance with the answers, notwithstanding the general verdict, or the court may return the jury for further consideration of its answers and verdict or may order a new trial. When the answers are inconsistent with each other or one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial.
No Colorado appellate opinion has addressed whether failure to object to any inconsistencies in the verdict before the jury is discharged waives the right to raise the issue in post-trial motions or on appeal. However, because C.R.C.P. 49 is identical to Fed. R. Civ. P. 49, we may look to federal authority for guidance in construing the Colorado rule. Benton v. Adams, 56 P.3d 81 (Colo. 2002).
Like C.R.C.P. 49(b), concerning the submission to a jury of a general verdict coupled with written interrogatories, Fed. R. Civ. P. 49(b) provides that when the jury's "answers are inconsistent with each other and one or more is likewise inconsistent with the general verdict, judgment shall not be entered, but the court shall return the jury for further consideration of its answers and verdict or shall order a new trial." The Tenth Circuit has held that a party waives the right to object to inconsistencies in a general verdict with special interrogatories if it does not object on that ground before the jury is discharged unless the verdict is inconsistent on its face such that the entry of judgment upon the verdict is plain error. Johnson v. Ablt Trucking Co., 412 F.3d 1138 (10th Cir. 2005); Resolution Trust Corp. v. Stone, 998 F.2d 1534 (10th Cir. 1993); Diamond Shamrock Corp. v. Zinke & Trumbo, Ltd., 791 F.2d 1416 (10th Cir. 1986). If a party fails to object before the jury is discharged, it waives any future challenge to the inconsistency because its failure to object timely deprives the court of the option of sending the jury back for further deliberations. See Stancill v. McKenzie Tank Lines, Inc., 497 F.2d 529 (5th Cir. 1974); Ludwig v. Marion Labs., Inc., 465 F.2d 114 (8th Cir. 1972).
Unlike Rule 49(b), Rule 49(a) does not contain a specific direction to send the jury back for further deliberations in the event of an inconsistency in the jury's answers. See C.R.C.P. 49(a); Fed. R. Civ. P. 49(a). Therefore, Rule 49(a) does not require a party to object to the inconsistencies in a jury's answers to a special verdict before the jury is discharged in order to preserve its right to challenge the inconsistencies in a subsequent motion or on appeal. See Heno v. Sprint/United Mgmt. Co., 208 F.3d 847 (10th Cir. 2000); Thompson v. State Farm Fire & Cas. Co., 34 F.3d 932 (10th Cir. 1994); Bonin v. Tour W., Inc., 896 F.2d 1260 (10th Cir. 1990); Pierce v. S. Pac. Transp. Co., 823 F.2d 1366 (9th Cir. 1987); Ladnier v. Murray, 769 F.2d 195 (4th Cir. 1985); Malley-Duff & Assocs., Inc. v. Crown Life Ins. Co., 734 F.2d 133 (3d Cir. 1984); Alverez v. J. Ray McDermott & Co., 674 F.2d 1037 (5th Cir. 1982); Mercer v. Long Mfg. N.C., Inc., 671 F.2d 946 (5th Cir. 1982). But see Golub v. J.W. Gant & Assocs., 863 F.2d 1516, 1521 n.4 (11th Cir. 1989) ("In this circuit, all challenges to the consistency of special verdicts must be raised before the jury is excused.").
This distinction between special and general verdicts is based upon considerations of efficiency, recognizing that, while the jury is still present, the court may correct an error in a general verdict with speed and efficiency, so long as counsel timely notifies the court of the perceived inconsistency. Also, such timely notification will allow the same fact find
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