Chapter 50 Motion for Directed Verdict and for Judgment Notwithstanding the Verdict
Library | South Carolina Civil Procedure (SCBar) (2020 Ed.) |
(a) Motion for Directed Verdict: When Made: Effect. When upon a trial the case presents only questions of law the judge may direct a verdict. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a waiver of trial by jury even though all parties to the action have moved for directed verdicts. A motion for a directed verdict shall state the specific grounds therefor. The order of the court granting a motion for a directed verdict is effective without any assent of the jury.
(b) Motion for Judgment Notwithstanding the Verdict. Whenever a motion for a directed verdict made at the close of all evidence is denied or for any reason is not granted, the court is deemed to have submitted the action to the jury subject to a later determination of the legal questions raised by the motion. A party who has moved for a directed verdict may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for a directed verdict; or if a verdict was not returned, such party may move for judgment in accordance with his motion for a directed verdict. A motion for a new trial may be joined with this motion, or a new trial may be prayed for in the alternative. If a verdict was returned the court may allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as if the requested verdict had been directed. If no verdict was returned the court may direct the entry of judgment as if the requested verdict had been directed or may order a new trial.
(c) Same. Conditional Rulings on Grant of Motion.
(1) If the motion for judgment notwithstanding the verdict, provided for in subdivision (b) of this rule, is granted, the court shall also rule on motion for a new trial, if any, by determining whether it should be granted if the judgment is thereafter vacated or reversed, and shall specify the grounds for granting or denying the motion for the new trial. If the motion for a new trial is thus conditionally granted, the order thereon does not affect the finality of the judgment. In case the motion for a new trial has been conditionally granted and the judgment is reserved on appeal, the new trial shall proceed unless the appellate court has otherwise ordered. In case the motion for a new trial has been conditionally denied, the respondent on appeal may assert error in that denial; and if the judgment is reversed on appeal, subsequent proceedings shall be in accordance with the order of the appellate court.
(2) The party whose verdict has been set aside on motion for judgment notwithstanding the verdict may promptly after notice of the judgment serve a motion for a new trial pursuant to Rule 59.
(d) Same: Denial of Motion. If the motion for judgment notwithstanding the verdict is denied, the party who prevailed on that motion may, on appeal, assert grounds entitling him to a new trial in the event the appellate court concludes that the trial court erred in denying the motion for judgment notwithstanding the verdict. If the appellate court reverses the judgment, nothing in this rule precludes it from determining that a party is entitled to a new trial, or from directing the trial court to determine whether a new trial shall be granted.
(e) Time for Motion; Appeal; End of Term. The motion for judgment n.o.v. shall be made promptly after the jury is discharged, or in the discretion of the court not later than 10 days thereafter. The time for appeal for all parties shall be stayed by a timely motion for judgment n.o.v. and shall run from the receipt of written notice of entry of the order granting or denying such motion. The time within which to make the motion shall not be affected by the ending of a term of court or departure of the judge from the circuit, and the trial judge shall retain jurisdiction of the action for the purpose of hearing and disposing of such motion if not heard and disposed during the term. Except by consent of the parties, argument on the motion shall be heard in the circuit where the trial was held. The motion may in the discretion of the court be determined on briefs filed by the parties without oral argument.
This Rule 50 conforms to the Federal Rule, and to present State practice, with four stated changes.
1. The language of Code § 15-33-10 is added as the first sentence to Rule 50(a).
2. The motion for directed verdict may be made at the close of plaintiff's evidence, as well as at the close of all the evidence. This is an alternative to the present motion for involuntary dismissal (non-suit) which is also available.
3. The motion for judgment n.o.v. and for a new trial may be made in the alternative, which is also familiar to State practice.
4. The only substantive change in State procedure is that the parties may be allowed up to ten (10) days to file the motions, and the end of a term of court does not deprive the trial judge of jurisdiction to hear and determine them. Rule 50(e) is added for this purpose. This does not preclude the motions being made in open court, which will continue to be the practice in most cases, but the grounds for the motion and the ruling must be stated in writing or entered on the record to assist the appellate court in its decision in event of appeal.
Post-trial motions are made promptly at the end of the trial, or at that time the court, upon motion, may grant an additional ten days to make them. The amendment to Rule 50(e) provides that the time for appeal commences upon the receipt of written notice of entry of the order disposing of post-trial motions, rather than the date when the order is signed by the court. Similar changes are made in Rules 52 and 59.
This amendment adds Rule 50(f). It is intended to help ensure that the judge is promptly notified that the motion has been filed.
(f) Judge to be Provided with Copy. A party filing a written motion under this rule shall provide a copy of the motion to the judge within ten (10) days after the filing of the motion.
A. The Standard for the Motion for a Directed Verdict and JNOV
Rule 50 permits the defending party in a jury action to challenge the sufficiency of the evidence at the close of the plaintiff's case and for each party to move for a directed verdict at the close of all of the evidence. If the latter motion has been made and denied and the case submitted to the jury and a verdict returned, the losing party also may move for judgment notwithstanding the verdict.2 The same test applies to motions under Rule 50 as to motions for summary judgment.3 Rule 50 governs cases before the jury. Motions challenging the sufficiency of evidence in non-jury cases are decided under Rule 41(b).4
The standard for evaluating the sufficiency of the evidence under Rule 50 is the same regardless of whether it is made at the end of the plaintiff's case, at the end of all of the evidence, or renewed after a verdict. A successful motion terminates the case5 and takes it away from the jury. The motion may be granted only when there is no material factual dispute for the jury to decide. The court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in the non-moving party's favor.6 The court does not consider evidence contrary to or in conflict with the evidence favorable to the non-moving party.7 Nor is the court concerned with the credibility of the witnesses or the weight of the evidence because these are jury issues.
The motion must be granted if there has been a failure of proof on an element of the case8 or if the evidence supports only the conclusion that the non-moving party cannot recover.9 However, if the evidence can support the movant's and the non-movant's case, or the inference against the non-movant is not clear, the motion must be denied.10 Some issues ordinarily are for the jury and rarely can be decided as a matter of law on a motion for a directed verdict. Examples are negligence,11 contributory negligence, assumption of the risk, and intervening negligence of third parties.12
Some cases hold that the case should go to the jury so long as there is a scintilla of evidence supporting the plaintiff's case. Judge Whaley notes in his Handbook of South Carolina Trial & Appellate Procedure that this standard is phrased in terms of the evidence raising reasonable inferences in favor of the plaintiff.13 The scintilla rule does not permit the jury to resolve speculative, theoretical, or hypothetical case issues.14 Moreover, the court is not required to ignore evidence contrary to the non-movant's case.15
B. Motion for a Directed Verdict
1. At the End of Plaintiff's Case
The motion for a directed verdict may be made by the defending party in a jury action at the conclusion of the plaintiff's case. The motion may be made orally in open court. The transcript provides the written record required by Rule 7(b). The movant must state the grounds for the motion with particularity.16 A pro forma request for a directed verdict is insufficient.17 However, one that asserted a lack of evidence on a material issue was adequate.18 Specificity alerts the non-movant to the lack of evidence and provides an opportunity to correct it.
If the motion is granted, it is an adjudication on the merits. As provided in Rule 50(a), the jury is not required to approve the verdict. If the motion is denied, the movant may rest on the motion or offer a defense to the jury. Evidence may be presented even though the movant did not reserve the right to do so,19 but introducing evidence waives the right to...
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