Southern Management Corp. v. Taha

RAKER, J.,

with whom BELL, C.J. joins as to Parts I and II only, dissenting.

I respectfully dissent. I would affirm the judgment of the Circuit Court for three reasons. First, appellant has waived any objection to raise an inconsistency in the verdict because appellant did not contemporaneously object at the time the verdict was rendered and before the jury was discharged. Second, because the verdict was in the form of a general verdict, it is not necessarily an inconsistent verdict. Third, Maryland law has long permitted inconsistent verdicts.

*497I. Waiver

Southern Management Corporation has waived any objection that the verdict is inconsistent.14 Southern Management never asked the trial court to have any purported inconsistency resubmitted to the jury for reconciliation. Southern Management never objected to the verdict or brought the inconsistency to the court’s attention, even though permitted to do so, until well after the jury had been discharged. Southern Management agreed to the form of the verdict sheet and to the jury instructions. In fact, Southern Management drafted the verdict sheet that was submitted to the jury. At Southern Management’s request, the verdict sheet contained three questions; the jury was required to determine whether each of the three defendants was liable for malicious prosecution.15 *498Significantly, the jury was not instructed that no verdict could be rendered against the employer unless the jury found that Taha was the victim of malicious prosecution by at least one employee.16 Had Southern Management objected to the instructions, or the verdict before the jury was dismissed, the trial court could have revised the instructions or had the verdict clarified.

Southern Management argues that it challenged the inconsistency at the earliest opportunity. Raising the issue for the first time in a motion j.n.o.v., well after the jury was dismissed, is not the earliest opportunity. The earliest opportunity, as most courts that have considered the waiver argument have found, is before the jury is dismissed, and not at a post-*499trial motion. See, e.g., Babcock v. Gen. Motors Corp., 299 F.3d 60, 63-64 (1st Cir.2002); Austin v. Paramount Parks, Inc., 195 F.3d 715, 726 (4th Cir.1999); Lockard v. Missouri Pac. R.R. Co., 894 F.2d 299, 304-05 (8th Cir.1990); White v. Celotex Corp., 878 F.2d 144, 146 (4th Cir.1989); McIsaac v. Didriksen Fishing Corp., 809 F.2d 129, 134 (1st Cir.1987); Cundiff v. Washburn, 393 F.2d 505, 507 (7th Cir.1968). Cf. Bell v. Mickelsen, 710 F.2d 611, 616 (10th Cir.1983); Charles Stores, Inc. v. Aetna Insurance Co., 490 F.2d 64, 67-68 (5th Cir.1974); Fredonia Broadcasting Corp. v. RCA Corp., 481 F.2d 781, 796 (5th Cir.1973); Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968, 973 (1st Cir.1969); Frankel v. Burke’s Excavating, Inc., 397 F.2d 167, 170 (3d Cir.1968). It is simply unfair to permit a party to sit back, do nothing, and then raise the issue of inconsistent verdicts for the first time either in a post-trial motion or on appeal. As one court phrased it, non-adherence to the rule of waiver “would countenance ‘agreeable acquiescence to perceivable error as a weapon of appellate advocacy.’ ” Babcock, 299 F.3d at 64 (quoting Merchant v. Ruhle, 740 F.2d 86, 92 (1st Cir.1984)).

Had the objection to the verdict been brought to the attention of the trial court in a timely manner, the court had several options. For example, the court initially could have avoided the problem entirely if the jury had been instructed that no verdict could be rendered against the employer unless the jury found that an employee had been guilty of malicious prosecution. Southern Management neither sought such an instruction, nor objected to the instructions as given. After the verdict was rendered, the judge, if alerted, could have resubmitted the matter to the jury for clarification.

This Court has adhered continuously to the contemporaneous objection rule. See Klauenberg v. State, 355 Md. 528, 540, 735 A.2d 1061, 1067 (1999); Prout v. State, 311 Md. 348, 356-57, 535 A.2d 445, 449 (1988); Hall v. State, 119 Md.App. 377, 389-91, 705 A.2d 50, 56-57 (1998); Hickman v. State, 76 Md.App. 111, 117-18, 543 A.2d 870, 873-74 (1988) (Bell, J.). The Maryland Rules of Evidence provide that error may not be predicated upon a ruling that admits or excludes evidence *500unless a party either timely objects to the ruling or makes a timely offer of proof. See Rules 5-103 and 4-323. Rule 2-522(c), regarding special verdicts, provides that error may not be predicated upon the submission of issues to the jury unless the party objects before the jury retires to deliberate. One reason underlying the contemporaneous objection rule is to avoid unnecessary appeals by permitting the proponent of the evidence to cure any objectionable defect while the trial is ongoing. Hall, 119 Md.App. at 389-90, 705 A.2d at 56. Waiver operates both to promote judicial economy and to prevent a party from taking advantage of an error which could have been rectified by the court if called to its attention in a timely manner. The rule, and the reasons supporting it, support my view that unless a party brings the alleged inconsistency to the court’s attention before the jury is discharged, the issue is waived.17

The majority of courts that have considered this issue have held that unless a party objects to an inconsistent verdict before the jury is dismissed, any objection on grounds of inconsistency is waived. Babcock, 299 F.3d at 63-64; Austin, 195 F.3d at 726; Lockard, 894 F.2d at 304-05; White, 878 F.2d at 146; McIsaac, 809 F.2d at 134; Cundiff, 393 F.2d at 507. Cf. Bell v. Mickelsen, 710 F.2d at 616; Charles Stores, Inc. v. Aetna Insurance Co., 490 F.2d at 67-68; Fredonia Broadcasting Corp. v. RCA Corp., 481 F.2d at 796; Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d at 973; Frankel v. Burke’s Excavating, Inc., 397 F.2d at 170. “[I]n most courts, even flatly inconsistent verdicts may form the basis for a valid federal judgment if the parties fail to object to a verdict prior to the jury’s dismissal.” S. Martin, Rationalizing the Irrational: The Treatment of Untenable Federal Civil Jury Verdicts, 28 Creighton L.Rev. 683, 728 (1995).

*501In sum, Southern Management waived its right to complain that the jury verdict was inconsistent. A party cannot be permitted to take advantage of an error which could have been rectified by the court if called to its attention in a timely manner.

II. The Verdict Form — General versus Special Verdicts

Courts have treated inconsistent civil jury verdicts in a variety of ways, partially dependent upon the particular procedure used to obtain the jury’s findings. A civil verdict may be received in different ways: First, a general verdict may be received; second, a special verdict may be used; and third, a general verdict may be supplemented by special interrogatories, thereby combining features of a special verdict and a general verdict.

The Federal Rules of Civil Procedure explicitly address special verdicts and general verdicts with interrogatories. Rule 49(a) of the Federal Rules of Civil Procedure governs the use of special verdicts in federal courts.18 The Maryland Rules of Procedure also permit the court to pose specific questions to the jury, known as special verdicts. See Rule 2-522(c), derived from Federal Rule 49(a); Owens-Corning Fiberglas Corp. v. Garrett, 343 Md. 500, 525, 682 A.2d 1143, 1155 *502(1996) (noting that Rule 2-522 gives trial judge authority to design submissions to the jury); Kruszewski v. Holz, 265 Md. 434, 446, 290 A.2d 534, 541 (1972) (noting that trial judge’s authority to submit a case to the jury for a special verdict is conferred by rule). In returning a special verdict, the jury makes factual findings and the court applies the law to those facts as found by the jury. In addition, courts may present to the jury written interrogatories on issues of fact, the decision of which is necessary to the verdict, but still permit the jury to return a general verdict. With this procedure, elements of a special verdict and general verdict are employed at the same time.

Verdicts are usually returned in the form of a general verdict in most courts. See Portage II v. Bryant Petroleum, Corp., 899 F.2d 1514, 1519 (6th Cir.1990); Guidry v. Kem Mfg. Co., 598 F.2d 402, 405 (5th Cir.1979). The jury simply announces in whose favor it finds, and if for the plaintiff, in what amount. General verdicts provide little explanation for the decision, and thus, if a general verdict appears to be inconsistent, there is little basis to determine whether that verdict was the result of rational decision making, or if it was based on sympathy for one party, confusion, mistake, or nullification. It has been said of the general verdict that it “is as inscrutable and essentially mysterious as the judgment which issued from the ancient oracle of Delphi.” Skidmore v. Balt. & Ohio R.R. Co., 167 F.2d 54, 60 (2d Cir.1948) (Frank, J.).

The jury plays a simple factfinding role when it renders a special verdict, whereas the jury applies the law to the facts and announces legal conclusions when it renders a general verdict. As the Ninth Circuit Court of Appeals explained in Zhang:

“A jury may return multiple general verdicts as to each claim, and each party, in a lawsuit, without undermining the general nature of its verdicts. Although some general verdicts are more general than others, encompassing multiple claims, the key is not the number of questions on the verdict form, but whether the jury announces the ultimate legal result of each claim. If the jury announces only its *503ultimate conclusions, it returns an ordinary general verdict; if it makes factual findings in addition to the ultimate legal conclusions, it returns a general verdict with interrogatories. If it returns only factual findings, leaving the court to determine the ultimate legal result, it returns a special verdict.”

Zhang, 339 F.3d at 1031 (citation omitted).

The Zhang court further explained that the form of a verdict has important implications for determining whether verdicts are irreconcilably inconsistent. Id. In addressing the alleged inconsistency between two legal conclusions — a finding of liability for a corporate defendant and a finding of no liability for the corporation’s employee, the court in Zhang distinguished this inquiry from its task in reviewing whether special verdict answers support the ultimate judgment of the trial court. Id. at 1032-33. In cases involving the latter inquiry, “the real question [is] whether the jury’s factual findings require[] judgment for the plaintiff or the defendant, a question that is simply irrelevant where ... no factual findings are at issue.” Id. at 1033.

In S & R v. Nails, 85 Md.App. 570, 584 A.2d 722 (1991), rev’d on other grounds, 334 Md. 398, 639 A.2d 660 (1994), the Court of Special Appeals considered whether a special verdict could be reconciled with a general verdict. The court pointed out that a special verdict and a general verdict are “irreconcilably defective” where “the answer to one of the questions in a special verdict form would require a [general] verdict in favor of the plaintiff and an answer to another would require a [general] verdict in favor of the defendant.” Id. at 590, 584 A.2d at 731. Because S & R dealt with the consistency of a factual finding and a legal conclusion, that case, contrary to the majority’s assertion, does not stand for the broad proposition that apparently inconsistent civil jury verdicts are necessarily defective.

The majority improperly characterizes the jury verdict in the instant case as a special verdict. See maj. op. at 479 (referring to “the text of the special verdict form”). The *504verdict in the instant case is a general verdict, not a special verdict. The jury merely determined whether each of the three defendants was liable. Unlike the verdicts in S' & R, the verdict in this case was not irreconcilably inconsistent because the jury made no factual findings that required judgment for Southern Management.

The cases cited by the majority involving the doctrine of respondeat superior do not establish that the jury’s exoneration of an employee can never be consistent with a verdict of liability for the corporate defendant. The cases cited by the majority involve situations where corporate liability was based solely on the doctrine of respondeat superior and only one employee’s actions grounded the claim. See maj. op. at 488-89. Zhang is more instructive regarding the interplay of the doctrine of respondeat superior with apparently inconsistent general verdicts. In Zhang, the Ninth Circuit Court of Appeals contemplated that general verdicts might be alleged to be inconsistent in three ways. 839 F.3d at 1032. Two of those ways include situations in which the jury returns “a general verdict that, under the facts of the case, implies a lack of evidence underlying another general verdict” or the jury returns “two general verdicts that, under any facts, seem to be legally irreconcilable.” Id. The court categorized the split verdict between the corporate defendant and the employee as the former scenario because “it is legally possible for a corporation to be held liable for discrimination while its agent is exonerated (because, among other reasons, the corporation may have acted through other agents).” Id.

Although Southern Management raises the question of whether, as a matter of law, the jury verdict was irreconcilably inconsistent, underlying its claim of inconsistency is a presumption that Taha failed to produce sufficient evidence of tortious conduct by employees other than Wylie-Forth and McGovern. As the Court of Special Appeals phrased it in Taha I, 137 Md.App. at 721, 769 A.2d at 976, “[appellant explains that, based on well-established principles of responde-at superior, Southern, as principal, cannot be liable here, because the two employee-defendants were found not culpable, *505and the evidence did not show that any other corporate employees committed the tort” (emphasis in original). The court went on to conclude that “the verdict of liability against Southern cannot stand, given the jury’s exoneration of the two individual employees, if the claim against Southern was based solely on the conduct of those two individuals.” Id. at 724, 769 A.2d at 978 (emphasis in original).

The majority in the instant case states that “the gravamen of the case was limited to the two named employees,” maj. op. at 485, and embraces the Court of Special Appeals’ pronouncement that Taha “proceeded against Southern for the tort of malicious prosecution based only on the conduct of McGovern or Wylie-Forth, not other Southern employees who were not sued.”19 Taha I, 137 Md.App. at 728, 769 A.2d at 980 (emphasis added). The majority further intimates that a jury could not have found that Southern Management employees other than the two who were sued were acting within the scope of their employment. Maj. op. at 485-86. This is pure conjecture. Whether an individual’s conduct falls within the scope of employment is within the province of the jury. Sawyer v. Humphries, 322 Md. 247, 260-61, 587 A.2d 467, 473-74 (1991). If Southern Management believed that there was insufficient evidence of these facts, or any other facts, it should have raised its concerns at the close of the evidence and before the jury retired to deliberate.20 In denying the motion j.n.o.v., the trial judge found that there was sufficient *506evidence in the record from which the jury could have arrived at its verdict.

The United States Supreme Court has held that where a jury renders apparently inconsistent verdicts, it is the court’s duty to search for a logical interpretation of those verdicts. The Court addressed this issue in Atlantic & Gulf Stevedores, Inc. v. Ellerman Lines, 369 U.S. 355, 82 S.Ct. 780, 7 L.Ed.2d 798 (1962), in which a plaintiff longshoreman brought suit against shipowners, and the defendant shipowners impleaded plaintiffs employer, a stevedoring contractor. Id. at 357, 82 S.Ct. at 782, 7 L.Ed.2d at 802. Plaintiff was injured when two bands holding bales of burlap broke while the plaintiff was unloading the bales on defendants’ ship. Id. at 356, 82 S.Ct. at 782, 7 L.Ed.2d at 802. The jury found the shipowners hable for the plaintiffs injuries under theories of negligence and unseaworthiness, and found the stevedoring company not hable, id. at 357, 82 S.Ct. at 782, 7 L.Ed.2d at 802, even though the stevedoring company owed contractual duties to the shipowners much like a manufacturer’s warranty of its product, id. at 359 n.l, 82 S.Ct. at 783 n. 1, 7 L.Ed.2d at 803 n. 1. The Court held that the jury’s verdict was not logically inconsistent because the jury may have found that the shipowners were neghgent in failing to inspect the bands on the bale that fell — a duty not subsumed under the stevedoring company’s contractual obligations to the shipowners. Id. at 364, 82 S.Ct. at 786, 7 L.Ed.2d at 806-07. The Court announced that “[wjhere there is a view of the case that makes the jury’s answers to special interrogatories consistent, they must be resolved that way.” Id. at 364, 82 S.Ct. at 786, 7 L.Ed.2d at 807. See also Gallick v. Balt. & Ohio R.R. Co., 372 U.S. 108, 119, 83 S.Ct. 659, 666, 9 L.Ed.2d 618, 627 (1963) (noting that courts must “attempt to harmonize the [jury’s] answers” when faced with apparently inconsistent verdicts); Zhang, 339 F.3d at 1038 (quoting Gallick and Atlantic & Gulf Stevedores, Inc. and stating that litigants challenging apparently inconsistent verdicts “bear a high burden to establish an irreconcilable inconsistency”).

*507The general verdicts in the instant case are not irreconcilably inconsistent or defective. The trial court properly denied Southern Management post-judgment relief partly because the court found that there was evidence to support a verdict of corporate liability even if the employees who had been sued were found not liable. The fact that the jury concluded that two of Southern Management’s employees were not liable for malicious prosecution does not compel the conclusion that Southern Management, as a matter of law, cannot be held liable.

III. Inconsistent Verdicts Generally

It has long been the law in Maryland that verdicts may be inconsistent. This is so in both civil and criminal cases. See, e.g., Garrett, 343 Md. at 521, 682 A.2d at 1153; Hoffert v. State, 319 Md. 377, 384-85, 572 A.2d 536, 540 (1990); Wright v. State, 307 Md. 552, 576, 515 A.2d 1157, 1169 (1986); Shell v. State, 307 Md. 46, 54, 512 A.2d 358, 362 (1986); Mack v. State, 300 Md. 583, 594, 479 A.2d 1344, 1349 (1984); Ford v. State, 274 Md. 546, 552-53, 337 A.2d 81, 85-86 (1975); Johnson v. State, 238 Md. 528, 541, 545, 209 A.2d 765, 771, 773 (1965); Ledbetter v. State, 224 Md. 271, 273-75, 167 A.2d 596, 597-98 (1961); Williams v. State, 204 Md. 55, 64, 102 A.2d 714, 718 (1954); Leet v. State, 203 Md. 285, 293-94, 100 A.2d 789, 793-94 (1953); Zachair v. Driggs, 135 Md.App. 403, 440 n. 17, 762 A.2d 991, 1011 n. 17 (2000). We said in Hoffert, that while inconsistent verdicts in a court trial are not tolerated,

“inconsistent verdicts by a jury ‘are normally tolerated.... ’ This is so because of ‘the unique role of the jury, [and has] no impact whatsoever upon the substantive law explicated by the Court.’ Due to the singular role of the jury in the criminal justice system, ‘there is a reluctance to interfere with the results of unknown jury interplay, at least without proof of “actual irregularity.” ’ ”

319 Md. at 384, 572 A.2d at 540 (citations omitted). We have emphasized that “the jury retains its power to err, either fortuitously or deliberately, and to compromise or exercise lenity.” Mack, 300 Md. at 597, 479 A.2d at 1351. A jury *508verdict will not normally be reversed even if a verdict is inconsistent in the sense that the factual findings cannot logically be reconciled with each other. See Garrett, 343 Md. at 521, 682 A.2d at 1153.

Courts permit inconsistent verdicts based on a recognition of the unique role of the jury. Juries render verdicts for a variety of reasons, including mistake, the application of lenity, nullification, or compromise to reach a unanimous verdict. See Shell, 307 Md. at 54-55, 512 A.2d at 362 (citing Ford, 274 Md. at 553, 337 A.2d at 85-86). Sometimes juries render verdicts based on an alternate, but supportable, view of the evidence presented at trial. See, e.g., Gallick, 372 U.S. at 120-21, 83 S.Ct. at 666-67, 9 L.Ed.2d at 627-28; Atl. & Gulf Stevedores, Inc., 369 U.S. at 364, 82 S.Ct. at 786, 7 L.Ed.2d at 806-07.

The majority overlooks more than one procedural error on the part of Southern Management. In order to reach the merits, the majority has to pull the corporation’s “chestnuts out of the fire” and overlook the waiver of the issue and the filing of an improper j.n.o.v. motion. See Stockton v. State, 107 Md.App. 395, 397, 668 A.2d 936, 937 (1995) (noting that courts are reluctant “to forgive the non-diligence of attorneys by pulling their neglected chestnuts out of the fire for them”). The exercise of our discretion to address the issue in this case will lull lawyers into a false sense of security that the Court will reach the issue despite procedural violations and improper appellate records. See Austin v. State, 90 Md.App. 254, 271, 600 A.2d 1142, 1150-51 (1992). The majority justifies the result based upon a perceived need to reach an important issue of public policy. This case is merely a fact-specific case which turns on procedural errors, a factual dispute as to whether the verdicts were inconsistent, and whether, even if apparently inconsistent, under the form of the verdict, the verdicts could be reconciled.

Under the posture of this case, the judgments did not reflect irreconcilably inconsistent verdicts that must be set aside as a matter of law. I would affirm the trial court’s *509denial of appellant’s post-trial motions. Accordingly, I respectfully dissent.

Chief Judge BELL authorizes me to state that he joins in Parts I and II of this dissenting opinion.

. Appellee argues waiver, but on a different ground than I would find. Appellee argues that Southern Management waived any inconsistency because Southern Management drafted the verdict sheet, and the verdict sheet encouraged or at least permitted an inconsistent verdict. In response, Southern Management maintains that the issue before the Court is the verdict and not the verdict sheet. Although the issue on appeal is the consistency of the verdict, courts have found that verdict sheets and jury instructions play a role in the determination of whether apparently inconsistent verdicts are reconcilable. See Tipton v. Michelin Tire Co., 101 F.3d 1145, 1150-51 (6th Cir.1996) (stating that the almost identical instructions on strict liability and negligence "bolster[ed] [the court’s] finding that the jury’s answers to the interrogatories were inconsistent” where the jury found the defendant liable based on negligence but found the defendant not liable based upon strict liability); Zhang v. Am. Gem Seafoods, Inc., 339 F.3d 1020, 1038 (9th Cir.2003) ("we review the consistency of the jury’s verdict 'in light of the instructions givenO’ ” (quoting Grosvenor Properties Ltd. v. Southmark Corp., 896 F.2d 1149, 1151 (9th Cir.1990))); Merchant v. Ruhle, 740 F.2d 86, 91 (1st Cir.1984) (upholding inconsistent civil jury verdicts and finding it significant that the defendant had agreed to instructions allowing the jury to find liability on either of two claims); S & R v. Nails, 85 Md.App. 570, 588, 584 A.2d 722, 730 (1991), rev’d on other grounds, 334 Md. 398, 639 A.2d 660 (1994) ("[v]iewed in light of the instructions ... the punitive damages verdict is, at best, ambiguous, and, more likely, inconsistent”) (emphasis added).

. The verdict sheet read as follows:

"1. Was the plaintiff, Mukhtar Taha, the victim of malicious prosecution by the defendant Southern Management Corporation?
*4982. Was the plaintiff, Mukhtar Taha, the victim of malicious prosecution by the defendant, Deborah Wylie-Forth?
3. Was the plaintiff, Mukhtar Taha, the victim of malicious prosecution by the defendant, Michael McGovern?
If "Yes” to any defendant, answer Question 4.
4. What amount of damages do you award plaintiff?
A. Economic $_
B. Non-Economic $_"

. The Court of Special Appeals addressed the jury instruction in Southern Management Corporation v. Taha (Taha I), 137 Md.App. 697, 769 A.2d 962 (2001). The court noted as follows:

"Following the bench conference, the jury was specifically instructed that, '[i]f the employee or employees are responsible for the acts about which the complaint is made by the plaintiff, the employer is also responsible since they would have been acting in the course of the employee responsibilities.' That supplemental instruction was accurate but arguably incomplete and, as a result, possibly misleading. Although the court specifically told the jury that Southern would be liable if the jury found McGovern and Wylie-Forth liable, the court never advised the jury of the converse — that Southern’s liability, if any, is founded on the conduct of its employees, and if the jury exonerated the two named employees, Southern could not be liable. Even if liability could attach based on the conduct of other employees of Southern who were not sued, the jury was not instructed to consider the conduct of other employees.”

Id. at 718, 769 A.2d at 974. Had the trial court instructed the jury that liability could not attach to the corporation unless the jury found liability on an employee’s part, the issue might have been avoided. Had Southern Management objected to the verdict before the jury was dismissed, the trial court could have brought the alleged inconsistency to the jury's attention and had the verdict clarified.

. Even if a strict waiver rule should for some policy reason not be applied in every circumstance, it should be applicable to this case because this is not a complex case, nor one where the alleged inconsistency was not immediately apparent when the verdict was rendered and before the jury was discharged.

. Rule 49(a) reads as follows:

(a) Special Verdicts. The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact. In that event the court may submit to the jury written questions susceptible of categorical or other brief answer or may submit written forms of the several special findings which might properly be made under the pleadings and evidence; or it may use such other method of submitting the issues and requiring the written findings thereon as it deems most appropriate. The court shall give to the jury such explanation and instruction concerning the matter thus submitted as may be necessary to enable the jury to make its findings upon each issue. If in so doing the court omits any issue of fact raised by the pleadings or by the evidence, each party waives the right to a trial by jury of the issue so omitted unless before the jury retires the party demands its submission to the jury. As to an issue omitted without such demand the court may make a finding; or, if it fails to do so, it shall be deemed to have made a finding in accord with the judgment on the special verdict.

. Taha presented evidence of wrongdoing by Udit and Martinez, two other employees, although he did not sue them. See Taha I, 137 Md.App. at 730, 769 A.2d at 981.

. The United States Court of Appeals for the Ninth Circuit in Zhang v. American Gem Seafoods, Inc., 339 F.3d 1020, 1032 (9th Cir.2003), held that the defendants had waived any argument that the verdict was inconsistent. The court noted that the defendants missed the opportunity to challenge whether there was evidence to support a split verdict by not raising the issue at the close of the evidence, when the plaintiff could have, if necessary, introduced more evidence about the corporate defendants' liability. Id. at 1033-34. The court concluded that "not having raised the issue before the matter was submitted to the jury, the appellants cannot complain of a defect in proof for the resulting verdict.” Id. at 1034.