We all know what a directed verdict motion is. A defendant will often make one at the close of the plaintiff’s presentation of evidence. Many times it is a mere formality and is accompanied by a cursory argument. Other times it is a forceful argument that may well give rise to a dismissal.
And a plaintiff can move for a directed verdict, too. He, she, or it can argue that no reasonably jury could conclude that the defendant is entitled to a judgment or that an affirmative defense is valid.
But regardless of the merits of the motion or who raises it, if you as the movant want to preserve the loss of a directed verdict for a later appeal you have to (a) raise the denial of the motion in your motion for new trial; or (b) move for a judgment notwithstanding the verdict after the verdict is returned. And, if you want to challenge the sufficiency of evidence supporting an adverse jury verdict, you better renew your motion for a directed verdict at the close of all the evidence.
This new decision reminds us of the law. Lebel v. CWS Marketing Group, Inc., No. E2022-01106-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023). The Defendant CWS asserted a motion for a directed verdict at the close of the plaintiff’s proof, but did not raise the issue in a motion for new trial or motion for a j.n.o.v. On appeal, it claimed that the denial of the motion was in error. But the Court of Appeals rejected the effort, saying, “‘[i]t has long been the rule in this state that in order to preserve errors for appeal, the appellant must first bring the alleged errors to the attention of the trial court in a motion for a new trial.’ Fahey v. Eldridge, 46 S.W.3d 138, 141 (Tenn. 2001) (citing Memphis St. Ry. Co. v. Johnson, 88 S.W. 169, 170 (Tenn. 1905)).” Id. at 4.
It then reminded the parties of Tennessee Rule of Appellate Procedure 3(e):
[I]n all cases tried by a jury, no issue presented for review shall be predicated upon error in the admission or exclusion of evidence, jury instructions granted or refused, misconduct of jurors, parties or counsel, or other action committed or occurring during the trial of the case, or other ground upon which a new trial is sought, unless the same was specifically stated in a motion for a new trial; otherwise such issues will be treated as waived.
Id.
The Court then discussed two recent cases discussing the issue before announcing that the defendant had waived the right to complain about the failure to grant the directed verdict motion.
The Court of Appeals then addressed the sufficiency of evidence issue, saying
As for a party preserving its chance to challenge on appeal the sufficiency of the evidence, we have held that “[f]or this Court to review the sufficiency of the evidence on appeal, a motion for a directed verdict must have been made at the conclusion of all of the proof and renewed in a post judgment motion following the jury’s verdict.” McLemore ex rel. McLemore v. Elizabethton Med. Invrs, Ltd. P’ship, 389 S.W.3d 764, 778 (Tenn. Ct. App. 2012); see also Cortez, 941 S.W.2d at 894 (“Once Appellants moved for a directed verdict at the close of Appellees’ proof, it was incumbent upon them to renew their motion at the close of all the proof as an initial step to preserving the issue for review on appeal.”); Boren v. Hill Boren PC, No. W2021-00478-COA-R3-CV, 2023 WL 3375623, at *5, *9 (Tenn. Ct. App. May 11, 2023); Steele, 2002 WL 1000181, at *3 (“[I]n order for this Court to review the sufficiency of the evidence on appeal, the motion for a directed verdict must have been made at the conclusion of all of the proof and renewed in a post judgment motion following the jury’s verdict.”).
Id. at 7.
Thus, the appellate court concluded “that because CWS did not renew its motion for a directed verdict at the close of all proof in the jury trial, it waived appellate review of whether the evidence was sufficient to support the jury’s verdict on the fraudulent concealment, breach of contract, and reckless misrepresentation claims.” Id. at 8.
How plain is this law? So plain that the Court of Appeals determined that the appeal was frivolous. Id. at 8 – 9.
Bottom line: if you represent a defendant and determine you have a good faith basis for a directed verdict, move for one (a) at the close of the plaintiff’s proof; and (b) at the close of all the proof. If you lose the case, file a motion for a j.n.o.v and a motion for new trial, including in your motion for new trial the failure to grant your directed verdict motions.
If you represent a defendant and you believe that the evidence is so clear that the jury should not decide one or more issues, move for directed verdict on the issue(s). If the motion is denied and you lose the case, file a motion for a j.n.o.v. and a motion for new trial, including in your motion for new trial the failure to grant your directed verdict motion(s).