Rule 50 MOTION FOR DIRECTED VERDICT.

• Jurisdiction: Colorado

Rule 50. Motion for Directed Verdict.

A party may move for a directed verdict at the close of the evidence offered by an opponent or at the close of all the evidence. 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.

ANNOTATION

I. General Consideration.

II. Evidence

III. Grant of Motion.

IV. When Grant of Motion Improper.

V. Review of Motion.

I. GENERAL CONSIDERATION.

Law reviews. For article, "Trials: Rules 38-53", see 23 Rocky Mt. L. Rev. 571 (1951). For article, "One Year Review of Civil Procedure", see 34 Dicta 69 (1957). For article, "One Year Review of Civil Procedure and Appeals", see 37 Dicta 21 (1960). For article, "One Year Review of Civil Procedure and Appeals", see 39 Dicta 133 (1962). For article, "The One Percent Solution", see 11 Colo. Law. 86 (1982). For article, "Federal Practice and Procedure", which discusses a Tenth Circuit decision dealing with a motion for directed verdict, see 62 Den. U. L. Rev. 230 (1985). For article, "There is Still a Chance: Raising Unpreserved Arguments on Appeal", see 42 Colo. Law. 29 (June 2013).

This rule is substantially the same as F.R.C.P. 50. Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952).

This rule follows the rule and practice in federal courts. Klipp v. Grusing, 119 Colo. 111, 200 P.2d 917 (1948).

This rule governing the direction of a verdict is identical to the former rule controlling a motion for nonsuit in effect prior to the adoption of the rules of civil procedure. Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952).

Motions for directed verdict present a question of law, not of discretion. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950).

Motion of both sides for a directed verdict no longer amounts to a waiver of jury trial. Am. Nat'l Ins. Co. v. Gregg, 123 Colo. 476, 231 P.2d 467 (1951).

This rule specifically provides that "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". Klipp v. Grusing, 119 Colo. 111, 200 P.2d 917 (1948).

It becomes the duty of the trial court to direct a verdict in favor of defendant and grant a dismissal of the action when a review of all the evidence establishes that there is not basis upon which a verdict in favor of plaintiff may be supported as a matter of law. Montes v. Hyland Hills Park, 849 P.2d 852 (Colo. 1992).

Granting a directed verdict is a final and legal determination of the controversy. Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955).

Direction of verdict by trial court is presumed regular and valid. Where the trial court in directing a verdict exercises sound judicial discretion, its action is entitled to the same presumption of regularity and validity as is accorded to any other type of judgment; that error may have been committed by the trial court is never presumed, but must affirmatively be made to appear. French v. Haarhues, 132 Colo. 261, 287 P.2d 278 (1955).

A jury's subsequent verdict to the contrary cannot stand if a trial court appropriately directs a verdict on an issue. Pinell v. McCrary, 849 P.2d 848 (Colo. App. 1992).

"Motion for directed verdict" is actually motion to dismiss. When the court is the trier of fact, a motion denominated a "motion for directed verdict" is actually a motion to dismiss pursuant to C.R.C.P. 41(b). Campbell v. Commercial Credit Plan, Inc., 670 P.2d 813 (Colo. App. 1983); Frontier Exploration v. Am. Nat., 849 P.2d 887 (Colo. App. 1992).

There are standards for directed verdict versus motion for new trial. The standards for directing a verdict and setting one aside for new trial are widely different and should not be controlled by the same conditions and circumstances. The entry of a judgment notwithstanding the verdict involves a legal standard, while the authority to grant a new trial rests in the discretion of the trial court. Whitlock v. Univ. of Denver, 712 P.2d 1072 (Colo. App. 1985), rev'd on other grounds, 744 P.2d 54 (Colo. 1987).

The result of setting aside a verdict and the event of directing one are entirely different and are not controlled by the same conditions or circumstances; the matter of a retrial of the issue rests, within limitations, in the discretion of the trial court, while the matter of a directed verdict rests upon legal right. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950); Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952); Burenheide v. Wall, 131 Colo. 371, 281 P.2d 1000 (1955).

There is a difference between the legal discretion of the court to set aside a verdict as against the weight of evidence and the obligation which the court has to withdraw a case from the jury, or direct a verdict, for insufficiency of evidence; in the latter case it must be so insufficient in fact as to be insufficient in law, while in the former case it is merely insufficient in fact. Gossard v. Watson, 122 Colo. 271, 221 P.2d 353 (1950); Singer v. Chitwood, 126 Colo. 173, 247 P.2d 905 (1952).

This rule allows trial courts to issue partial directed verdicts. The rule's silence on the matter does not preclude a partial directed verdict. Instead, this rule should be read in tandem with Colorado's summary judgment rule, C.R.C.P. 56, which allows partial summary judgment. Both rules share a common legal standard (judgment as a matter of law) and a common purpose (to streamline the litigation process). Bd. of County Comm'rs v. Rodgers, 2015 CO 56, 355 P.3d 1253.

The primary difference between this rule and C.R.C.P. 56, the summary judgment rule, is the timing of the motion, with the former being made during trial and the latter before. It would make little sense for judgment as to issues to be permitted prior to trial on summary judgment but not after the presentation of evidence at trial. Bd. of County Comm'rs v. Rodgers, 2015 CO 56, 355 P.3d 1253.

Like its federal counterpart, F.R.C.P. 50, this rule implicitly authorizes a trial court to issue a directed verdict regarding claims in whole or in part. The development of the counterpart federal rule is also persuasive evidence...