Vol. 9, No. 3, Pg. 22. Directed Verdict v. Involuntary Nonsuit: Are You Making the Right Motion?.

• Author: By Cynthia Barrier Castengera

South Carolina Lawyer

1997.

Vol. 9, No. 3, Pg. 22.

Directed Verdict v. Involuntary Nonsuit: Are You Making the Right Motion?

22Directed Verdict v. Involuntary Nonsuit: Are You Making the Right Motion?By Cynthia Barrier CastengeraAfter intensive preparation, your case is ready. You have prepared your witnesses, prepared for the opposing witnesses and assembled your exhibits. Then, your case is finally called for trial. Imagine you represent the defendant in a bench trial. After the plaintiff has rested, what motion do you make? A directed verdict motion? No. The proper motion is one for an involuntary nonsuit. Does it matter? Yes.

Assume the trial court grants the directed verdict motion from the bench and a form order is entered. Now assume the plaintiff appeals. The appellate court may have to remand the case so the trial court can make specific findings. Why? Because the appellate court must review the findings of the trial court to see if any evidence supports those findings. Because none were made in this scenario, the appellate court has nothing to review.

DIRECTED VERDICT MOTION

Under Rule 50(a), SCRCP, the defendant in a jury action may move for a directed verdict at the close of the plaintiff's case on the purely legal issue of challenging the sufficiency of the plaintiff's evidence and counsel is required to state specific grounds for the motion. Rule 50(a), SCRCP. The motion can be granted only when there is no factual dispute for the jury to decide, and the trial court must view the evidence and inferences drawn therefrom in the light most favorable to the non-moving party. Tubbs v. Bowie, 308 S.C. 155, 417 S.E.2d 550 (1992).

The court does not consider evidence either contrary to or in conflict with the evidence favorable to the non-moving party. Small v. Pioneer Mach., Inc., 316 S.C. 479, 450 S.E.2d 609 (Ct. App. 1994). Nor is the court concerned with the credibility of the witnesses or the weight of the evidence. Brown v. Orndorff, 309 S.C. 320,472 S.E.2d 151 (Ct. App. 1992). If the evidence is susceptible of more than one reasonable inference, the trial court must submit the case to the jury. Tubbs v. Bowie, 308 S.C. 155, 417 S.E.2d 550 (1992).

The directed verdict motion must be renewed at the close of the defendant's case. Freeman v. A.& M. Mobile Home Sales, Inc., 293 S.C. 255, 359 S.E.2d 532 (Ct. App. 1987). If the trial court does not grant the motion, the appropriate post-trial motion is a motion for judgment notwithstanding the verdict. Rule 50(b), SCRCP.

A directed verdict motion is a prerequisite for making a motion for judgment notwithstanding the verdict. Benton & Rhodes, Inc. v. Boden, 310 S.C. 400, 426 S.E.2d 823 (Ct. App. 1993). The same grounds asserted in support of the motion for a directed verdict must be used as grounds for the judgment notwithstanding the verdict. Glover v. North Carolina Mut. Life Ins. Co., 295 S.C. 251, 368 S.E.2d 68 (Ct. App. 1988).

On appeal, the court must view the evidence and all inferences that...