Santos v. Nansay Micronesia Incl.

Santos v. Nansay Micronesia, Inc., 4 N.M.I. 155 (1994) Enrique A. Santos and Ignacia A. Santos, Plaintiffs/Appellees, v. Nansay Micronesia, Inc., Defendant/Appellant. Appeal No. 92-032* Civil Action No. 89-1008 July 27, 1994 Argued and Subm itted August 18, 1993 Counsel for appellant: Stephen Nutting, Saipan (W hite, Pierce, M ailman & Nutting). Counsel for appellees: W illiam M . Fitzgerald, Saipan. BEFORE: DELA CRUZ, Chief Justice, and VILLAGOM EZ and ATALIG, Justices. ATALIG, Justice: Nansay M icronesia, Inc. (“Nansay”), appeals from : (1) the denial of its m otion to strike the jury dem and of Enrique A. Santos (“Enrique”) and his wife Ignacia A. Santos (collectively “plaintiffs”); (2) an April 22, 1992, judgm ent based upon jury awards against Nansay in com pensatory dam ages of $801,800 for fraud, $750,000 for assisting co-defendant Jesus A. Santos (“Jesus”) in breaching his fiduciary duty to the plaintiffs, and $1,000,000 in punitive dam ages; and (3) the denial of its m otion for judgm ent notwithstanding the verdict (“JNOV”) or, in the alternative, for a new trial. Based on our analysis below we affirm the orders denying Nansay’s motions to strike the plaintiffs’ jury trial dem and and for JNOV or a new trial. However, we vacate the com pensatory award for breach of fiduciary duty, and reduce the com pensatory dam ages award for fraud to $400,500 and the punitive dam ages award to $500,000, subject to the plaintiffs’ option to request a partial new trial on the am ount of punitive dam ages. ISSUES PRESENTED AND STANDARD OF REVIEW Nansay raises the following issues for review: 2 * The separate appeal filed by Jesus A. Santos, earlier consolidated with this appeal, has been dismissed. See Santos v. Santos, App. Nos. 92-018 & 92-032 (consol.) (N.M.I. Sup. Ct. Mar. 18, 1993) (order of dismissal). 2 In its notice of appeal, Nansay listed both the denial of its motion for directed verdict and the court’s allowing the plaintiffs opportunity to file an opposition to Nansay’s motion for judgment notwithstanding the verdict (JNOV) or, in the alternative, for a new trial. These issues were not pursued and argued before this Court. Generally, where a party does not discuss issues in its brief, they are treated as waived. See In re Blankenship, 3 N.M.I. 209, 216 (1992) (citing Lucky Dev. Co., Ltd. v. Tokai, U.S.A., Inc., 3 N.M.I. 79, 85 (1992) (issues not argued in brief considered only because issues dealt with “jurisdiction and . . . important consideration of public confidence I. W hether the trial court erred in denying Nansay’s m otion to strike the plaintiffs’ jury dem and; II. W hether the trial court erred by subm itting the issue of dam ages to the jury; III. W hether the trial court erred in failing to instruct the jury on dam ages; IV. W hether the trial court erred in failing to rule on the equitable rem edies prayed for by the plaintiffs in their com plaint; V. W hether the trial court erred in denying Nansay’s motion for JNOV or, in the alternative, for a new trial. The first, second and fourth issues are issues of law which we review de novo. See Sonoda v. Villagomez, 4 N.M .I. 34, 35-36 (1993) (citing Deleon Guerrero v. Nabors, 4 N.M .I. 31, 33 (1993)). The standard of review for jury instructions differs, depending on the nature of the purported error. Oglesby v. Southern Pac. Transp. Co., 6 F.3d 603, 606 (9th Cir. 1993). Because Nansay alleges that the court failed to give certain instructions, we review all the instructions given as a whole under an abuse of discretion standard “to determ ine if they are misleading or inadequate.” Id. (citing Oviatt v. Pearce, 954 F.2d 1470, 1481 (9th Cir. 1992)).3 No error in jury instructions will require a reversal of the judgm ent on a jury verdict where the verdict “is more probably than not untainted by the error.” Glover v. BIC Corp., 6 F.3d 1318, 1327 (9th Cir. 1993); see also Oglesby, 6 F.3d at 606 (applying harm less error doctrine) (citing Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir. 1992)). The fifth issue involves two separate standards of review. The denial of a motion for JNOV involves a de novo review of the record. Los Angeles Memorial Coliseum Comm’n v. National Football League, 791 F.2d 1356, 1360 (9th Cir. 1986), cert. denied sub nom., Los Angeles Raiders v. National Football League, 484 U.S. 826, 108 S. Ct. 92, 98 L. Ed. 2d 53 (1987), holding limited on other grounds, Morgan v. Woessner, 997 F.2d 1244, 1261 (9th Cir. 1993), cert. dismissed sub nom., Searle v. Morgan, 510 U.S. __, 114 S. Ct. 671, 126 L. Ed. 2d 640 (1994). The denial of a motion for a new trial is reviewed for a manifest or gross abuse of discretion. Robinson v. Robinson, 1 N.M .I. 81, 85-86 (1990); see also Morgan, 997 F.2d at 1261. Only where a substantial right of the m ovant has been infringed may we reverse the court’s order. See Com . R. Civ. P. 61; cf. Robinson, 1 N.M .I. at 91 (court determines whether movant would be prejudiced by denial and, if so, whether movant could have prevented prejudice). BACKGROUND The plaintiffs owned Lot 013 B 15, containing approxim ately 8,018 square meters, in San Roque, Saipan. They are an elderly Cham orro couple who were sought to sell or lease this land to acquire funds for their retirement. Nansay wanted to either purchase or lease the property in connection with a hotel project. It enlisted the help of a real estate broker, Jack Little (“Little”). To secure rights to obtain the property, M atao Yokeno (“Yokeno”), Nansay’s president, paid Enrique $10,000 for an option. Little suggested to the plaintiffs that they transfer the property to their sons, Enrique Santos, Jr. (“Enrique, Jr.”) and Jesus, who would then lease or sell the land on their behalf.4 Jesus assured the plaintiffs that they would receive any purchase or lease rental paym ents on the property. Enrique then deeded the property, in equal undivided shares, to Enrique, Jr., and Jesus. The “Deed of Gift” was prepared by Nansay’s attorneys with the assistance of Little as broker and was signed on June 6, 1988. The purchase price of the property was initially set at approximately $800,000. After a meeting with Yokeno, Enrique agreed to lower the purchase price to $750,000. At another meeting, on July 8, 1988, an “Agreement for Purchase and Lease of Real Property” (“agreem ent”) was signed by Enrique, Jr., Jesus, their in the integrity of the judicial process”)). 3 W here the appellant argues that the trial court “misstated the elements that must be proved at trial,” it is reviewed de novo as a legal issue. Oglesby v. Southern Pac. Transp. Co., 6 F.3d 603, 606 (9th Cir. 1993) (citing Caballero v. City of Concord, 956 F.2d 204, 206 (9th Cir. 1992)). Here, Nansay contends that the court omitted an instruction rather than misstated the law. 4 Little testified that he suggested that the plaintiffs transfer title to their property to their two sons for tax purposes. Enrique testified that he could neither read nor write English, the language in which the deed was written, and did not understand that the transfer was to be of ownership.  Santos v. Nansay Micronesia, Inc., 4 N.M.I. 155 (1994) spouses, Ana Deleon Guerrero Little (“Ana”) and Nansay. Ana is listed in the agreem ent as the buyer with a reversionary interest. At the m eeting the parties noted that the $10,000 previously paid to Enrique by Nansay was part of the $45,000 down paym ent. Nansay then gave a check for the rem aining $35,000 to Enrique, Jr., and Jesus. Pursuant to the agreem ent, the closing of the transaction was to take place fifteen days after the title cleared. On October 11, 1988, Enrique, Jr., notified Nansay’s counsel that the title cleared on Septem ber 30, 1988. At that point Nansay inform ed Enrique, Jr., and Jesus that the property contained wetland and requested another price reduction. Enrique, Jr., refused and asked for a termination of the agreem ent. Nansay refused to terminate the agreem ent. Abandoning its effort to obtain a lease for the entire property, on June 20, 1989, Nansay secured from Jesus a fifty-five year ground lease on Jesus’s one-half undivided interest in the property. The lease price of $357,500 was paid in full to Jesus, who kept the funds for himself. On the same day, Nansay and Jesus executed a docum ent entitled “Declaration of Restrictions and Dedication of W etlands” in which the entire 8,018 square m eters of the property was dedicated as wetland. The purpose of this docum ent was to designate the property for wetland use and to dedicate it to the U.S. governm ent. Nansay hoped that by dedicating the property as wetland, the federal government would perm it it to develop other wetland for a hotel resort.5 On October 17, 1989, the plaintiffs filed an action against Nansay and Jesus alleging fraud in the acquisition of the property. They prayed for the following relief: “[1] That the deed of gift [from Enrique to his sons] be declared void and of no effect[; 2] [t]hat the leasehold of [Nansay] be cancelled[; 3] [f]or dam ages according to proof[; and 4] [f]or punitive dam ages for the fraudulent conduct of the Defendants.” 6 On Novem ber 6, 1989, the plaintiffs filed a dem and for a jury trial which Nansay opposed on the ground that two of the three types of relief sought, rescission of the deed and cancellation of the leasehold, were equitable rem edies. The trial court denied Nansay’s motion to strike the jury dem and. It concluded that the plaintiffs were entitled to a jury trial on the question of whether they were entitled to com pensatory dam ages based on the fraud allegedly perpetrated by the defendants. The court also concluded that it, sitting in equity, should decide the alternative equitable issues pertaining to a breach of fiduciary duty claim . In (approximately) M arch of 1992, Enrique, Jr., reconveyed his one-half undivided interest in the property to the plaintiffs.7 Am ong the instructions submitted to the jury, several described the nature of fraud and breach of fiduciary duty. 8 The trial court included a line for a com pensatory dam ages figure on special verdict form s for fraud and breach of fiduciary duty. A general instruction on the nature of punitive damages and their measure was 5 Nansay has been frustrated in its development of other property because it contains, or may contain, land classified as “wetlands” by certain United States Federal departments and agencies . . . and . . . the Government of the Commonwealth of the Northern Mariana Islands . . . . In order to obtain the necessary governmental permits, Nansay wishes to dedicate the subject property as a replacement for any wetlands which may be affected by its development on the other property, and [Jesus] Santos is willing to accommodate Nansay’s proposal. Declaration of Restrictions and Dedication of W etlands at 3 in Appellees’ Supplemental Excerpts of Record at Exhibit 24. 6 Complaint at 3, Santos v. Santos, Civ. No. 89-1008 (N.M.I. Super. Ct. filed Oct. 17, 1989). 7 This is an undisputed fact evinced in testimony at trial. See Transcript of Proceedings, vol. 5 at 109, Santos v. Santos, Civ. No. 89-1008 (N.M.I. Super. Ct. Apr. 14, 1992) (testimony of Enrique, Jr.). 8 See Jury Instructions 15, 17 and 18 in Appellant’s Excerpts of Record at Exhibit 16. given, as well.9 W hile general descriptions of com pensatory dam ages for fraud 10 and for breach of fiduciary duty 11 were given in the jury instructions, they did not include specific m ethods for measuring those dam ages. On April 18, 1992, the jury found that Jesus breached his fiduciary duty as an agent to Enrique, as principal, and that Nansay assisted Jesus in that breach. 12 The jury found that Jesus fraudulently broke a prom ise to act on behalf of Enrique and to convey to him all of the sale or lease proceeds, and that Nansay “knew of, or participated” in the fraud. 13 Finally, the jury found that Nansay, through its agents, acted outrageously, justifying punitive dam ages.14 It awarded the plaintiffs, against Nansay, com pensatory damages on the fraud claim in the am ount of $801,800, and $750,000 on the breach of fiduciary claim . It also awarded against Nansay the sum of $1,000,000 in punitive damages. Afterward, the trial court noted that “[b]ecause the plaintiffs have elected to pursue their legal claim s and received com plete relief thereunder, there is no need to address the rem aining equitable claims raised in their complaint.” Santos v. Santos, Civ. No. 89-1008 (N.M .I. Super. Ct. Apr. 22, 1992) (judgm ent at 2). Nansay thereafter filed a motion for JNOV 15 or, in the alternative, a new trial.16 The trial court orally denied Nansay’s motion. Nansay tim ely filed a notice of appeal. 9 See id., Jury Instruction 20. 10 “You must determine that as a result of his reliance on Jesus’s promise, the plaintiffs have sustained and proven actual damage.” Id., Jury Instruction 15. 11 If you find that defendant Nansay, through its agents, caused or assisted defendant Jesus A. Santos in breaching his duty to Enrique Agulto Santos and Ignacia Aguon Santos, you must determine what damages, if any, were proximately caused by such acts or omissions which constituted the breach of duty. If you should find that the plaintiffs are entitled to a verdict, you may award the plaintiffs only such damages as will reasonably compensate for such injury and damage as you find, from a preponderance of the evidence in the case, that plaintiffs have sustained as a proximate result of the acts of the defendant. Id., Jury Instruction 19. 12 See Special Verdict Form Number 2 in Appellant’s Excerpts of Record at Exhibit 13. 13 Specifically, the jury found that: (1) Jesus made a promise to his father Enrique to act on his behalf and convey to him all sales proceeds; (2) Jesus did not intend to honor that promise; (3) the promise was made with the intent to defraud the plaintiffs; (4) the plaintiffs were unaware of those fraudulent intentions; (5) the plaintiffs relied on the promise; (6) the plaintiffs were damaged as a result of that reliance; and (7) Nansay “knew of, or participated in, a fraud upon the plaintiffs in order to obtain the deed of gift.” See Special Verdict Form Number 1 in Appellant’s Excerpts of Record at Exhibit 12. 14 Appellant’s Excerpts of Record at Exhibit 15. 15 In its motion for JNOV, Nansay asserted that the special verdicts on damages were: (1) grossly excessive and not supported by the evidence; (2) an improper and inequitable apportionment of damages between the defendants; and (3) indicative of undue sympathy, bias or prejudice on the part of the jurors. Defendant’s Motion for JNOV and in the Alternative for a New Trial, Santos, Civ. No. 89-1008 (N.M.I. Super. Ct. filed May 13, 1992) (as amended to cure grammatical and typographical errors). 16 In its motion for a new trial, Nansay argued that the: (1) jury verdict finding fraud was not supported by the evidence; (2) compensatory and punitive damages were not supported by the evidence; (3) damages were excessive and indicated bias, sympathy or prejudice on the part of the jurors; and (4) verdicts were a miscarriage of justice in light of the amount of damages awarded in relation to the worth of the one-half interest in the disputed property eventually acquired by Nansay. See id.  Santos v. Nansay Micronesia, Inc., 4 N.M.I. 155 (1994) DISCUSSION Nansay argues, first, that the trial court erroneously denied its m otion to strike the jury trial dem and and allowed the jury to decide “inherently equitable” issues. Second, it argues that the court erred in allowing the issue of com pensatory damages to go to the jury without any instruction as to their specific m easure. It contends that the instructions on dam ages were, as a whole, misleading and inadequate to guide the jury. Third, Nansay asserts that the court erred in declining to rule on the equitable rem edies for which the plaintiffs prayed in their com plaint. Finally, it argues that the trial court erred in denying its m otion for JNOV and abused its discretion in denying its alternative motion for a new trial.17 Based on the following, we hold that the trial court did not err in subm itting the fraud claim and prayer for com pensatory dam ages to the jury. Further, it did not err in declining to rule on the alternative prayer for equitable rem edies. W e also hold that the court neither abused its discretion in denying Nansay’s motion for a new trial nor erred in denying Nansay’s m otion for JNOV. W e decline to address Nansay’s argum ents regarding the jury instructions on appeal because it failed to object to the instructions (or lack thereof) at trial. Furtherm ore, we vacate as redundant the judgm ent for com pensatory dam ages against Nansay on the breach of fiduciary duty claim . Finally, we reduce the com pensatory dam ages awarded for fraud and conditionally reduce the punitive damages awarded, subject to the plaintiffs’ option to request a partial new trial on the issue of punitive damages alone. I. The Trial Court did not Err in Denying Nansay’s M otion to Strike the Plaintiffs’ Jury Demand and in Submitting the Corresponding Prayer for Damages to the Jury W here the am ount sought in a civil action exceeds $1,000, “the parties shall be entitled to a trial by a jury of six persons, of all legal (as distinguished from equitable) issues, to the sam e extent and under the sam e circumstances . . . [as] if the case were pending in a United States District Court.” 7 CM C § 3101(b)(1) (em phasis added). W here a case presents both legal and equitable issues, the court decides the latter and the jury the form er. 9 Charles A. W right & Arthur R. M iller, F ED ERAL P RACTICE AN D P ROCEDURE : C IVIL [“W right & M iller”] § 2305 (1971). Under our civil procedure rules, a plaintiff may seek alternative relief for one claim , Com . R. Civ. P. 8(a)(3), and fraud is a type of action for which both legal and equitable remedies are available.18 See infra notes 20, 23 and accom panying text. However, if the legal rem edy is inadequate and the relief sought is historically equitable, there is no jury trial right. W right & M iller § 2311. A. The Trial Court Properly Characterized the Claim for Fraud as Legal To determ ine if a claim is legal and triable by a jury, the court must first look to the nature of the issues 17 Specifically, Nansay contends that the trial court erred in denying its alternative motions for JNOV and new trial because (1) the awards for compensatory and punitive damages were not supported by the evidence and were grossly excessive, (2) the compensatory damages were improperly apportioned by the jury, (3) the compensatory damages should not have been based on the value of the land at the time the fraud occurred but on the value of the loss of the use of the land, (4) the finding of outrageous conduct on the part of Nansay and the ensuing award for punitive damages were not supported by the evidence, and (5) the trial court erred in not conducting an independent review of the record to determine if the special verdicts on damages were supported by substantial evidence. 18 See generally 9 Charles A. W right & Arthur R. Miller, F ED ERAL P RACTICE AN D P ROCEDURE : C IVIL [hereinafter “W right & Miller”] § 2311 (1971). involved, with a view toward its historical treatm ent at com m on law, and then to the nature of the rem edy sought. See Wooddell v. International Bhd. of Elec. Workers, Local 71, 502 U.S. __ 112 S. Ct. 494, 497, 116 L. Ed. 2d 419 (1991) (determ ining if statutorily- afforded claim legal or equitable) (citing Chauffeurs, Teamsters & Helpers, Local No. 391 v. Terry, 494 U.S. 558, 110 S. Ct. 1339, 1345, 108 L. Ed. 2d 519 (1990)). W hile the U.S. Suprem e Court has long held that actions for the recovery of land and dam ages to property are generally legal in nature, Pernell v. Southall Realty, 416 U.S. 363, 94 S. Ct. 1723, 1727, 40 L. Ed. 2d 198 (1974) (quoting Whitehead v. Shattuck, 138 U.S. 146, 11 S. Ct. 276, 277, 34 L. Ed. 873 (1891)), it considers the inquiry into the type of rem edy sought to be “m ore im portant” in determ ining the right to a jury trial. Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 42, 109 S. Ct. 2782, 2790, 106 L. Ed. 2d 26, 41 (1989). This is particularly true for fraud claim s for which both types of remedies are available.19 W here a plaintiff prays for a monetary judgm ent, a fraud claim is ordinarily legal in nature and there is a right to a jury trial. See W right & M iller § 2311; cf. Granfinanciera, 492 U.S. at 47, 109 S. Ct. at 2793, 106 L. Ed. 2d at 44. However, monetary relief may be characterized as equitable in nature where, for exam ple, it is restitutionary in nature or “‘incidental to or intertwined with injunctive relief.’” Terry, 494 U.S. at 571, 110 S. Ct. at 1348, 108 L. Ed. 2d at 531 (quoting Tull v. United States, 481 U.S. 412, 424, 107 S. Ct. 1381, 1389, 95 L. Ed. 2d 365, 377 (1987). Pursuant to R ESTATEM ENT (S ECO N D ) O F T O RTS [“T O RTS ”] § 549 (1977), pecuniary dam ages 20 may be sought for a loss caused by fraud. 21 W here land has tortiously been taken, a plaintiff may recover either the land or its value. Id. § 901 cm t. a. “If the plaintiff is content with [m onetary] dam ages [for fraud], he can always recover them.” Id. § 549 cmt. g. In this matter, the trial court deduced from the complaint that the plaintiffs sought com pensatory damages for allegedly fraudulent conduct. The court then concluded that because the plaintiffs sought com pensatory dam ages, the fraud claim was a legal issue triable by jury. It also concluded that the rem edies of rescission and cancellation are distinct from and alternative to the rem edy of monetary com pensation. Because the rem edy of com pensatory dam ages for fraud sought by the plaintiffs was neither restitutionary nor linked with injunctive relief, we find no error in the trial court’s characterization of the nature of the fraud claim as being legal. B. The Trial Court did not Err in Submitting the Prayer for Compensatory Damages to the Jury Nansay argues that the plaintiffs should have been confined to praying for the equitable rem edies of rescission, cancellation and restitution. This argum ent is based upon an exclusive, and erroneous, reliance upon the R ESTATEM EN T O F R ESTITU TIO N (1937) (“R ESTITU TIO N ”) and certain provisions of T O RTS .22 19 Generally, the determination of whether a fraud issue is triable by jury is dependant upon the type of “remedy sought and the context in which the claim of fraud arises.” Id. 20 For purposes of a tort action, “‘[d]amages’ means a sum of money awarded to a person injured by the tort of another.” R ESTATEM ENT (S ECO N D ) O F T O RTS [hereinafter T O RTS ] § 902 (1979). 21 (1) The recipient of a fraudulent misrepresentation is entitled to recover as damages in an action of deceit against the maker the pecuniary loss to him of which the misrepresentation is a legal cause, including (a) the difference between the value of what he has received . . . and its purchase price or other value given . . . and (b) pecuniary loss suffered otherwise as a consequence of the recipient’s reliance . . . [and] (2) . . . additional damages sufficient to give him the benefit of his contract with the maker, if these damages are proved with reasonable certainty. Id. § 549. 22 Nansay relies upon the following Restatement provisions: R ESTATEM EN T O F R ESTITU TIO N [hereinafter R ESTITU TIO N ] § 130 (1937); T ORTS , supra note 19, §§ 433A (1965), 624 (1977), 904 & cmts. a, b, 927 (1979).  Santos v. Nansay Micronesia, Inc., 4 N.M.I. 155 (1994) Nansay fails to note that the scope of R ESTITU TIO N is confined to a discussion of such relief and that one m ay seek other (i.e., legal) form s of relief.23 An exam ination of both T O RTS and the R ESTATEM ENT (S ECO N D ) O F A GENCY (1958) (“A GENCY ”) reveals numerous provisions in which alternative (i.e., equitable and legal) form s of relief for fraud and/or breach of fiduciary duty are either expressly available or alluded to.24 W e find no error on the part of the trial court in subm itting to the jury the plaintiffs’ claim for com pensatory dam ages based on fraud. C. The Trial Court did not Err in Declining to Rule on the Alternative Equitable Remedies of Rescission and Cancellation The equitable rem edies of rescission and cancellation are distinct from the legal rem edy of dam ages, and m ust be afforded only where the remedy at law is inadequate. Compare supra notes 19-20 and accom panying text. In actions for fraud involving a property transaction, the defrauded party m ay either pursue the affirmance (where adequate) or disaffirm ance of an agreement. The form er will result in monetary damages alone, and the latter may result in the return of the land as well as monetary com pensation for any loss of the value of the use of the land. See T O RTS §§ 525, 531, 532, 549 cm ts. e, g (1977), 871 & cm ts. a, c, e, g, 901 cm t. a (1979). The submission of the com pensatory dam ages issue on the fraud claim to the jury resulted in an election of rem edies with which the plaintiffs were satisfied. There was no reason for the trial court to entertain the alternative equitable rem edies of rescission and cancellation. II. The Compensatory Award for Breach of Fiduciary Duty The plaintiffs concede that the damages awarded for breach of fiduciary duty constituted an im proper double recovery for the same harm for which the plaintiffs were compensated under the fraud claim . W e agree and vacate the award for breach of fiduciary duty. “An agent is a fiduciary with respect to matters within the scope of his agency.” A GENCY § 13. It is clear from the record that the jury found Jesus to have had both a fiduciary and agency relationship with the plaintiffs, in which Jesus was to sell or lease the land on their behalf.25 The breach of fiduciary duty for which dam ages were awarded occurred during and within the context of Jesus’s agency relationship with the plaintiffs. 26 Under T O RTS and A GENCY , a fraud action is a m eans by which monetary com pensation may be sought for a breach of fiduciary 23 R ESTITU TIO N , supra note 21, is limited to “situations in which one person is accountable to another on the ground that otherwise he would unjustly benefit or the other would unjustly suffer loss.” Id., general scope note at 1. In many situations included herein there is also a cause of action for damages because of a breach of contract or the commission of a tort. Th[is] Restatement[,] . . . however, deals only with restitutionary rights and does not include a statement of other rights which may also arise from a transaction from which a restitutionary right arises. Id., general scope note at 2. 24 See, e.g., supra note 20 and accompanying text; R ESTATEM ENT (S ECO N D ) O F A GENCY [hereinafter A GENCY ] introductory note to Ch. 13 at 171-72, §§ 85 & cmt. f, 402(2), 312 & com. d, 313, 314, 315 & cmt. a, 399 (1958); T ORTS , supra note 19, at §§ 525, 531, 532, 549 cmts. e, g (1977), 871 & cmts. a, c, e, g, 901 cmt. a (1979). 25 Both Special Verdicts 1 and 2 dealt with the agency relationship between Jesus and the plaintiffs. See sources cited supra notes 11-12 and accompanying text. 26 See and compare A GENCY , supra note 23, §§ 12-14 with Special Verdicts 1 and 2 and Jury Instructions 8, 9, 18 and 19 in Appellant’s Excerpts of Record at Exhibits 12, 13 and 16. duty.27 Thus, the plaintiffs were com pensated for the breach of fiduciary duty, as applied in T O RTS and A GENCY , by the award of monetary dam ages for fraud. 28 III. Nansay Failed to Object to the Jury Instructions Com . R. Civ. P. 51 provides: “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict, stating distinctly the m atter to which he objects and the grounds of his objection.” Fed. R. Civ. P. 51, after which Com . R. Civ. P. 51 was patterned, has been construed by the Ninth Circuit to bar consideration of unobjected-to instructions in a civil case. See, e.g., Glover, 6 F.3d at 1326; Bock v. United States, 375 F.2d 479, 480 (9th Cir. 1967). Cf. Dilutaoch v. C&S Concrete Block Products, 3 CR 579, 585 (D.N.M .I. App. Div. 1988) (objection waived on appeal where no objection to instructions or alternative instructions subm itted). A narrow exception to this interpretation of Fed. R. Civ. P. 51 occurs where the “‘court is aware of a party’s concerns with an instruction, and further objection would be unavailing.’” Glover, 6 F.3d at 1326 (quoting McGonigle v. Combs, 968 F.2d 810, 823 (9th Cir.), cert. dismissed sub nom., Casares v. Spendthrift Farm, Inc., 506 U.S. ___, 113 S. Ct. 399, 121 L. Ed. 2d 325 (1992). The Ninth Circuit’s interpretation of Fed. R. Civ. P. 51 is in accord with the plain meaning of that rule. W e adopt this interpretation for Com . R. Civ. P. 51. The record shows that Nansay failed to object to any purported om ission in the instructions given or to proffer additional instructions with respect to the issue of m easuring dam ages. 29 Further, there is no indication in the record that the trial court was aware of an objection and that any objection raised would have been futile. There having been no tim ely objection to the instructions, or purported lack thereof, raised by Nansay, the issue is deem ed waived. IV. The Trial Court neither Erred nor Abused its Discretion in Denying Nansay’s M otions for JNOV or for a New Trial On appeal, we review not jury verdicts directly but the ensuing judgm ent of the court. See 1 CM C § 3102. 30 Our review is restricted to the court’s disposition of the JNOV and new trial motions with respect to the dam age verdicts. This is because Nansay has not raised the propriety of the verdicts regarding liability for our review.31 27 See A GENCY , supra note 23, § 312 & cmt. a (citing T O RTS , supra note 19, at now partially deleted §§ 757-812, 871, as sections in which principles and application enunciated) and T O RTS § 871 cmt. e. 28 The trial court previously characterized the breach of fiduciary claim as an equitable claim to be resolved by the court and not a jury. See Santos v. Santos, Civ. No. 89-1008 (N.M.I. Super. Ct. Mar. 26, 1992) (order at 4-5). Because we view the breach of fiduciary duty claim as encompassed by the fraud claim, we need not reach the issue of whether the former should have been presented to the jury. 29 The only comment made in the record before us by Nansay in reference to damages goes to the jury verdict form and not the instructions: “I think its improper to add an instruction as to general damages or special damages, out of pocket losses et cetera just to create the cause of action for punitive damages.” Transcript of Proceedings, supra note 6, vol. 7 at 4:25-5:3. 30 Cf. In re Hafadai Beach Hotel Extension, 4 N.M.I. 37, 40 (1993) (appellate court reviews not factual findings of agency but trial court’s determination that such findings are supported by substantial evidence). 31 Nansay neither contested the special verdict relating to fraud below with respect to the JNOV motion, see supra note 14, nor raises it for our review under one of the exceptions outlined in Santos v. Matsunaga, 3 N.M.I. 221, 231 (1992). Additionally, while Nansay contested the jury’s verdict of fraud in its motion for a new trial, see supra note 15, it has not pursued that argument for review by this Court. Thus, we deem it waived. See supra note 1; cf. Com. R. App. P. 28(a)(2); Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991) (“any question which has been  Santos v. Nansay Micronesia, Inc., 4 N.M.I. 155 (1994) W e will reverse a denial of a JNOV motion challenging a jury verdict on damages where it is found to be “grossly excessive, clearly not supported by the evidence, or based only on speculation or guesswork.” Morgan, 997 F.2d at 1258 (citing and lim iting Los Angeles Memorial Coliseum Comm’n, 791 F.2d at 1360).32 To determ ine whether an award is grossly excessive, we exam ine whether it com ports with the Restatem ent rules for determ ining the m easure of dam ages in tort actions, which “are based upon the purposes for which actions of tort are maintainable.” T O RTS § 901.33 Thus, we review each of the awards for excessiveness in light of these purposes and the relevant factors for consideration as outlined in T O RTS . 34 W here we deem dam ages awarded to be excessive, we may modify the judgment “as may be just under the circumstances.” 1 CM C § 3103.35 Because the judgment awarding the compensatory and punitive damages is based upon jury verdicts, we m ust be careful to not abrogate the plaintiffs’ right to a jury trial on the underlying fraud claim. The Seventh presented to a federal district court for a ruling and which has not thereafter been waived or withdrawn is preserved for review”) (emphasis added). Indeed, Nansay’s arguments on appeal relate not to whether it committed fraud but whether the amount of damages awarded therefor is excessive. See generally Appellant’s Brief. 32 This is in contrast to our review of the denial of a JNOV motion challenging a verdict on liability, in which case we are to apply the same standard as the trial court and, construing the evidence in the light most favorable to the nonmoving party, reverse a denial only if the evidence “permits only one reasonable conclusion, and that conclusion is contrary to the jury’s.” Vollrath Co. v. Sammi Corp., 9 F.3d 1455, 1460 (9th Cir. 1993) (citing Venejas v. Wagner, 831 F.2d 1514, 1517 (9th Cir.1987)), cert. denied, __ U.S. __, 114 S. Ct. 2163, 128 L. Ed. 2d 886 (1994). This has otherwise been defined as a substantial evidence test. See Morgan v. Woessner, 997 F.2d 1244, 1252 (9th Cir. 1993) (citing Meehan v. County of Los Angeles, 856 F.2d 102, 106 (9th Cir. 1988)), cert. dismissed sub nom., Searle v. Morgan, 510 U.S. __, 114 S. Ct. 671, 126 L. Ed. 2d 640 (1994)). “Substantial evidence is such relevant evidence as reasonable minds might accept as adequate to support a conclusion.” Morgan, supra (citing Landes Constr. Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 1371 (9th Cir. 1987)). 33 Pursuant to T O RTS , supra note 9, § 901, these “purposes” are the following: (a) to give compensation, indemnity or restitution for harms; (b) to determine rights; (c) to punish wrongdoers and deter wrongful conduct; and (d) to vindicate parties and deter retaliation or violent and unlawful self-help. 34 This is in accord with both the purposes behind the Restatement measures of damages, see supra note 32 and accompanying text, and the Ninth Circuit’s recently “refashioned” grossly excessive standard, under which punitive damages should not exceed “the amount necessary to accomplish the goals of punishment and deterrence,” Morgan, 997 F.2d at 1258, limiting holding on same grounds in Los Angeles Memorial Coliseum Comm’n v. National Football League, 791 F.2d 1356 (9th Cir. 1986), cert. denied sub nom., Los Angeles Raiders v. National Football League, 484 U.S. 826, 108 S. Ct. 92, 98 L. Ed. 2d 53 (1987). But cf. Ito v. Macro Energy, Inc., 4 N.M.I. 46, 64 (1993) (court-awarded compensatory damages “excessive only if the amount shocks the court’s sense of justice or sound judgment”). 35 See also 15A Charles A. W right & Arthur R. Miller, F ED ERAL P RACTICE AN D P ROCEDURE : C IVIL § 3901 (1992) (construing pertinently identical 28 U.S.C. § 2106 to afford appellate court “broad power to dispose of the case by controlling the shape of the judgment”); cf. Agulto v. Northern Marianas Inv. Group, Ltd., 4 N.M.I. 7 (1993) (additur on remand ordered in appeal from bench trial). Our power to grant a remittitur is the same as that of the trial court. Cf. Seidman v. American Airlines, Inc., 923 F.2d 1134, 1141 (5th Cir. 1991) (noting that Fifth Circuit uses “maximum recovery rule” under which verdict must be reduced to the maximum amount jury could have properly awarded). Am endm ent to the U.S. Constitution,36 which applies within the CNM I,37 is generally interpreted to vest the awarding of dam ages on an underlying legal claim within the province of the jury. See, e.g., Morgan, 997 F.2d at 1258 (concerning punitive dam ages).38 Thus, a com pensatory damages award determ ined by a jury should be reduced by remittitur without the option of a new trial only where it involves “measurable economic loss.” Anthony v. G.M.D. Airline Servs., Inc., 17 F.3d 490, 495 (1st Cir. 1994) (com pensatory dam ages). However, rem ittitur of com pensatory dam ages without the option of a new trial on rem and would be inappropriate where “the estim ation of the proper award ‘would rest solely on speculation.’” Id. (quoting Betancourt v. J.C. Penney Co., 554 F.2d 1206, 1209 (1st Cir. 1977)). 39 Likewise, where a jury award of punitive dam ages is deem ed excessive, it is best to always “afford the party awarded the grossly excessive punitive dam ages, whether that is determ ined by a trial or appellate court, the option of either accepting the rem ittitur of the punitive damage award or a new trial on that issue.” Morgan, 997 F.2d at 1258-59. A jury verdict is supported by the evidence where supported by “substantial evidence.” See Los Angeles Memorial Coliseum Comm’n, 791 F.2d at 1360. Generally, substantial evidence is “‘such relevant evidence as reasonable minds might accept as adequate to support a conclusion.’” Morgan, 997 F.2d at 12