Day on Torts - New Post: Failure to file post-trial motion resulted in waiver of directed verdict argument on appeal.

Failure to file post-trial motion resulted in waiver of directed verdict argument on appeal.

Posted: 13 Jan 2021 07:53 AM PST

Where the defendant failed to file a post-trial motion, she “waived her right to contest the trial court’s denial of her motion for a directed verdict.”

In Carman v. Kellon, No. M2019-00857-COA-R3-CV (Tenn. Ct. App. Dec. 18, 2020), the plaintiff was seriously injured when she was jogging on the side of a road and was hit by a truck driven by the defendant son. Plaintiff and her husband brought this action against the defendant son/driver for negligence, negligence per se, and recklessness, and against his mother for vicarious liability and negligent entrustment. Though the trial court granted the mother summary judgment on the vicarious liability claim, the negligent entrustment claim proceeded to a jury trial. At the close of plaintiffs’ proof, defendants moved for a directed verdict, which the trial court denied. At the end of the trial, the jury returned a very large verdict against both defendants, finding the son 60% at fault and the mother 40% at fault. Neither the mother nor the son filed any post-trial motions.

Defendant mother filed this appeal, asserting that the trial court wrongly denied her motion for a directed verdict on the negligent entrustment claim. Plaintiffs argued, though, that defendant “waived her right to appeal the trial court’s denial of her motion for a directed verdict by failing to file a post-trial motion,” and the Court of Appeals agreed. Tennessee Rule of Civil Procedure 3(e) states that “in all cases tried by a jury, no issue presented for review shall be predicated upon…[an] action committed or occurring during the trial of the case…unless the same was specifically stated in a motion for a new trial; otherwise, such issues will be treated as waived.” Further, in a previous case the Court of Appeals stated that “when the alleged error is the failure of the trial court to grant a directed verdict, either a motion for a new trial or a post-trial motion seeking entry of judgment in accordance with a motion for a directed verdict made at trial…is sufficient to preserve the issue for appeal.” (quoting Mires v. Clay, 3 S.W.3d 453 (Tenn. Ct. App. 1999)). Here, because the defendant’s mother failed to file any post-trial motions, she waived the argument that her motion for a directed verdict was wrongly denied.

In the alternative, the defendant’s mother argued that the trial court committed plain error by denying her motion for a directed verdict. The Court of Appeals pointed out that all cases cited by the defendant in support of her plain error argument were “criminal in nature,” and that when explaining the factors to consider in a plain error argument, the Tennessee Supreme Court specifically used the term “accused,” which “suggests that this doctrine is generally applicable to criminal cases rather than to civil cases[.]” (internal citation omitted). In light of these factors and the fact that the defendant had only made “unsubstantiated statements” in support of her plain error argument, the Court ruled that she failed to carry her burden here, and her appeal was dismissed.

NOTE: the opinion in this case was released nine weeks after oral argument.