Appellate Law

Party Must Move For Judgment As a Matter of Law at Close of All Evidence to Raise Issue on Appeal

By Ivan B. Cooper

In Skerlick v. Gainey, [Ms. 2080673] (Ala. Civ. App. Feb. 5, 2010), the Court of Civil Appeals held that a party waived the ability to challenge the sufficiency of the evidence on appeal because the party did not renew its motion for judgment as a matter of law at the close of all the evidence.

In this car wreck case, the defendant appealed a $30,000 verdict in favor of the plaintiff.  The defendant moved for a judgment as matter of law at the close of the plaintiff's evidence.  The motion was denied, and the defendant introduced evidence of his own.  However, the defendant did not renew its judgment as a matter of law at the close of all the evidence.

The Court of Civil Appeals held that the failure to renew the motion for judgment as a matter of law at the close of all the evidence precluded the defendant from raising the issue on appeal.  "One who has moved for [judgment as a matter of law] at the close of the opponent's case is entitled to review of the 'sufficiency of evidence' issue and relief from the jury's verdict, either by [postverdict motion for judgment as a matter of law] or appeal, only if he moves again for a [judgment as a matter of law] at the close of all the evidence."  p. 3-4 (internal citation omitted).

But the Court of Civil Appeals granted a new trial.  The court held that the trial court erred by charging the jury on permanent injury where the plaintiff failed to present expert testimony stating that she suffered a permanent injury.

Full post as published by Alabama Appellate Watch on February 12, 2010 (boomark / email).