The Tennessee Court of Appeals has reinforced a long-standing rule that a party who intends to seek appellate court review of the sufficiency of the evidence must make a motion for a directed verdict. The failure to do so means results in a waiver of the issue.
A defendant, recipient of an adverse judgment in Hogue v. P&C Investments, Inc., No. M2021-01335-COA-R3-CV, 2022 WL 17175608 (Tenn. Ct. App. Nov. 23, 2022), asked the appellate court to reverse that trial court-approved jury verdict on liability, saying that the evidence was insufficient to support a finding of intentional misrepresentation. But defendant had a problem: while a motion for a directed verdict had been made at the close of plaintiff’s proof, no such motion was filed at the close of the defendant’s proof.
Tennessee law requires ““that a motion for directed verdict must be made at the conclusion of all the proof in order for it to be considered by the trial court on a post-trial motion and by this court on appeal.” (internal citation and quotation omitted). Defendant urged the Court of Appeals to “follow the modern trend taken in federal courts, which no longer requires renewal of a motion for directed verdict at the close of all the proof,” but the argument fell on deaf ears. The Court noted that the same argument had been addressed in a 2020 Court of Appeals case, where the Court stated: “The law in Tennessee is well-established on this issue, and it is not the role of this Court to depart from it.” (internal citation omitted). Accordingly, the Court ruled that Defendant waived appellate review of whether there was sufficient evidence to support the fraud verdict.
So, how do you protect yourself from suffering a similar fate?
- If you are representing a defendant, your trial notebook (or whatever mechanism it is you use to organize your thoughts for trial) should include a reference to the need to ask for a directed verdict at the close of the plaintiff’s proof and to renew that motion at the close of defendant’s evidence, if any.
- If you are representing a plaintiff, you will want to make the motion for a directed verdict (if one is appropriate) at the close of defendant’s proof. (A motion for a directed verdict by a plaintiff is rare but is appropriate if the facts support the motion. If you represent the plaintiff and you believe the evidence will be presented in such a way that a directed verdict motion will be appropriate, you should reference the need to do so in your trial notebook.
- The motion is a relatively simple one to make. You simply say, “Your Honor, on behalf of [defendant or plaintiff][insert name] I move for a directed verdict pursuant to Rule 50 of the Tennessee Rules of Civil Procedure. As a matter of law, the [opposing party] has failed to prove [the state the the deficiency or deficiencies in the evidence].
- Here is a specific example:
- “Your Honor, the defendant Jones moves for a directed verdict under Rule 50 of the Tennessee Rules of Civil Procedure. This is a health care liability action, and under Tenn. Code Ann. § 29-26-115, the plaintiff must prove with competent expert testimony the failure to comply with the acceptable standards of acceptable professional practice as they existed in this community or similar communities at the time plaintiff was injury. Plaintiff offered only one expert to testify on this subject, and the court appropriately ruled that that expert was not competent to testify as to the acceptable standard of professional practice in this case. The absence of any competent expert proof on this issue means that, as a matter of law, plaintiff has failed to meet the burden imposed by state law, and this case must be dismissed at this time.” Day, J.A., Tennessee Law of Civil Trial, Chap. 11, Sec. 2 (2022).
- You can, of course, go into more detail, citing case law and more specific facts from the record. The point is that you need to make the record clear that the case fails because of the failure to offer adequate proof on one or more elements of the cause of action or, in the case of a plaintiff that (a) the plaintiff is entitled to a directed verdict on liability or (b) one or more of the defendant’s affirmative defenses are insufficient as a matter of law.
- You can move for directed verdict as to the entirety of the plaintiff’s case (or the defendant’s defense) or as to any subset of that claim or defense. For example, a defendant facing claims for fraud and negligent misrepresentation could move for a directed verdict only on the fraud claim. A plaintiff facing an affirmative defense on a limitations question can move for directed verdict on the issue of the statute of limitations. One exception to this rule: a motion seeking a directed verdict on the issue of the fault of a nonparty in a case involving comparative fault can only be made after all those who have asserted fault of the nonparty have had the opportunity to present evidence against the nonparty. For example, if P sues D and D asserts fault of nonparty NP, P could not move for a directed verdict as to the fault of NP until after D closed its evidence.
- A motion for directed verdict can also be directed at a pure question of law.
- The motion should be made on the record so that it is reflected in the transcript of the proceedings. It can, but usually is not, made in writing. If the motion is written, it needs to be filed with the Clerk of Court.
- Before moving for a directed verdict, be sure you know the standard the trial court is required to apply in evaluating the motion that requires the trial judge to look at the facts. “A directed verdict should be granted only when the evidence is susceptible to a single conclusion. In looking at the evidence, the trial judge ‘must take the strongest legitimate view of the evidence and accept all reasonable inferences in favor of the nonmoving party’ and direct a verdict if ‘reasonable minds could not differ as to the conclusions to be drawn from the evidence.’ The case should go to the jury, even if the facts are undisputed, when reasonable persons could draw conflicting conclusions from the facts.” Day, J.A., Tennessee Law of Civil Trial, Chap. 11, Sec. 2 (2022) (citations omitted).
- Thus, when asserting that your opponent did not put sufficient facts in the record to create a question for the jury as to one or more elements of the claim or defense, you need to point specifically to the “holes” in the evidence.
- If you are opposing such a motion, you need to show where your evidence creates a jury question on the issue. Once again, you are more likely to prevail if you point to specific testimony, exhibits, or some combination thereof.
- The judge has three options: grant the motion, deny the motion, or take the motion under advisement.
- If the motion pertains to the entire plaintiff’s case and the motion is granted, the case is dismissed and the jury is sent home. If the motion in the case is denied or is taken under advisement, the trial proceeds.
- If the motion motion pertains to a single claim, a grant of the motion means the trial proceeds but only on the remaining claims.
- A defendant who loses a motion for directed verdict at the close of the plaintiff’s evidence should ordinarily make a similar motion at the close of all of the evidence. The judge may or may not want additional argument on the motion, and if the judge does not want argument defense counsel should simply state, on the record, that she is renewing her motion for a directed verdict made at the end of plaintiff’s case-in-chief, for the same reasons as announced on the record previously. Ideally, the trial judge would affirmatively state that no further argument is necessary to preserve the record, but that is almost certainly not required. Obviously, if the judge wants further argument, counsel should be prepared to proceed.
- If the motion for directed verdict is denied or is taken under advisement, a timely post-trial written motion for a judgment notwithstanding the verdict should be filed under Tenn. R. Civ. Pro. 52.02 to preserve the issue for an appeal. The losing party will probably want to also file a motion for new trial under Tenn. R. Civ. Pro. 59.07. The title of such a motion filed by a defendant would be something like this: “Defendant Jones’ Motion for a Judgment Notwithstanding the Verdict or, in the Alternative, a New Trial.”
- If the trial court denies the motion for a judgment notwithstanding the verdict and for a new trial, your client may chose to file an appeal. If you intend to raise the issue on appeal you need to specifically state the denial of these motions as issues on appeal.