MOTIONS FOR JUDGMENT AS A MATTER OF LAW AND FOR NEW TRIAL:
PRESERVING THE RECORD FOR APPEAL

By: William E. Shreve, Jr.

ISSUES must be raised in the trial court to be considered on appeal. In cases tried to a jury, certain issues must be raised in trial and post-trial motions for judgment as a matter of law pursuant to Ala. R. Civ. P. 50, or in a motion for new trial pursuant to Ala. R. Civ. P. 59, in order to preserve them for appeal. This article will discuss the particulars of preserving issues in motions under Rules 50 and 59, including what issued must be raised, the form and substance of the motions, and when the motions must be filed.¹

Motions for Judgment as a Matter of Law

"Motion for judgment as a matter of law" (hereafter "motion for JML") is the relatively new name for motions for directed verdict and for judgment notwithstanding the verdict, incorporated into Fed. R. Civ. P. 50 in 1991 and Ala. R. Civ. P. 50 in 1995². The amended Rule 50 also sets forth the standard for granting a motion for JML (that there is "no legally sufficient evidentiary basis for a reasonable jury to find for [the opposing] party") and establishes certain requirements that the motion must meet (that it "specify the judgment sought and the law and the facts" supporting the motion).

Paragraphs (a) and (b) of Ala. R. Civ. P. 50, the provisions with which this article is primarily concerned, provide as follows:

(1) Judgment as a matter of law.

(1) If during a trial by jury a party has been fully heard on an issue and there is no legally sufficient evidentiary basis for a reasonable jury to find for that party on that issue, the court may determine the issue against that party and may grant a motion for judgment as a matter of law against that party with respect to a claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue.

(2) Motions for judgment as a matter of law may be made at any time before submission of the case to the jury. Such a motion shall specify the judgment sought and the law and the facts on which the moving party is entitled to the judgement.

(2) Renewal of motion for judgment after trial; alternative motion for new trial. Whenever a motion for a judgment as a matter of law made at the close of all the 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. Such a motion may be renewed by service and filing not later than thirty (3) days after entry of judgment. A motion for new trial under Rule 59 may be joined with a renewal of the motion for a judgment as a matter of law, or a new trial may be requested in the alternative. If a verdict was returned, the court may, in disposing of the renewed motion, allow the judgment to stand or may reopen the judgment and either order a new trial or direct the entry of judgment as a matter of law. If no verdict was returned the court may, in disposing of the renewed motion, direct the entry of judgment as a matter of law or may order a new trial.

Federal Rule 50 is substantially the same but requires renewal of the motion for JML within 10 days after entry of judgment, rather than the 30 days allowed by the Alabama rule.³

The change in the nomenclature used in Rule 50 is technical and not one of substance.⁴ The standard for granting a motion for JML is the same as that previously applied to motions for directed verdict and JNOV,⁵ and courts continue to cite case law concerning directed verdict and JNOV motions as authoritative under the amended Rule 50.⁶ This article will therefore do the same.

Function of Motion for JML

The motion for JML tests the sufficiency of the opposing party's evidence to have its claims or defenses submitted to the jury.⁷ It asks the court to enter judgment for the movant on the ground that "there is no legally sufficient evidentiary basis for a reasonable jury to find for [the opposing] party."⁸ In passing on a motion for JML, the court does not exercise discretion or weigh the evidence but instead makes an objective, legal determination, viewing the evidence in the light most favorable to the non-movant.⁹ Unless a statute or case law provides otherwise,¹⁰ the standard of evidentiary sufficiency that the court applies in ruling on the motion is the "substantial evidence rule," Ala. Code §12-21-12(a) (1995). See, e.g. Carter v. Henderson, 598 So.2d 1350, 1353 (Ala. 1992) ("[N]on-movant must present "substantial evidence" supporting each element of his cause of action or defense to withstand a movant's motion [for JML].").¹¹

A party can also move for JML on issues as to which that party bears the burden of proof, i.e., a plaintiff can move the court to enter JML in the plaintiff's favor on its claims,¹² and a defendant can move the court to enter JML in the defendant's favor based on an affirmative defense.¹³ In this situation, the moving party must show that its claim or defense is established by unimpeached testimony,¹⁴ that there is no substantial evidence supporting the nonmovant's position,¹⁵ and that reasonable persons must draw the same conclusion, in favor of the movant.¹⁶ Stated differently, the movant must show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law.¹⁷

Necessity of Motion for JML to Preserve Sufficiency of Evidence Issues for Appeal

In order to preserve issues of evidentiary sufficiency for appeal, parties must comply with a "two-step procedure" under Ala. R. Civ. P. 50.¹⁸ First, a party must move for JML, asserting insufficiency of the evidence to support the opposing party's claim or defense as grounds, at the close of all the evidence, that is, after the defendant has rested and the plaintiff has presented its rebuttal evidence.¹⁹ Rule 50(b) provides that if the motion is denied, "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." Second, once the court enters judgment on the verdict, the party must then renew its motion for JML within 30 days after entry of judgment (10 days in federal court).²⁰ Renewal of the motion gives the trial court a "second look at the 'insufficiency' ground as a prerequisite for appellate review of the issue." Barnes v. Dale, 530 So.2d 770, 776-77 (Ala. 1988).

A party must file both motions - the motion at the close of the evidence and the renewed motion after entry of judgment - in order to preserve the sufficiency of evidence issue for appeal.²¹ Filing the trial motion without post-judgment renewal does not preserve the issue,²² nor does filing the postjudgment motion if no motion was filed at the close of the evidence.²³ In the latter case - no motion filed at the close of the evidence - there is no request for JML that can be "renewed" after entry of judgment, and the trial court therefore cannot consider any postjudgment motion for JML.²⁴ [As discussed in Part II of this article, the trial court can entertain a post-judgment motion for new trial based on insufficiency of the evidence (or more properly, that the verdict is against the wright and preponderance of the evidence) even though no motion for JML was filed, and the appellate court can review the trial court's ruling on the motion for new trial. The standard of review of an order granting or denying a new trial is highly deferential, however, and even if the appellate court finds the evidence insufficient, it can only order a new trial, not JML.²⁵]

The two-step procedure also applies to motions seeking entry of JML in the movant's favor on the movant's own claims or defenses. The party asserting a claim or defense must file a motion for JML at the close of all the evidence, averring that the evidence affirmatively establishes such claim or defense, and then renew the motion after entry of judgment in order to preserve the issue of its entitlement to JML for appeal.²⁶

Exceptions to two-step procedure

In Barnes v. Dale, 530 So.2d 770 (Ala. 1988), the supreme court held that the two-step procedure under Rule 50 does not apply to motions raising "pure questions of law." The defendants in Barnes moved for a directed verdict, based on the affirmative defense of qualified immunity, at the close of the plaintiff's case, but they did not renew their motion at the close of all the evidence. After an adverse verdict, the defendants filed a motion for JNOV, which the trial court refused to consider on account of their failure to move for directed verdict at the close of the evidence. The supreme court reversed, holding that "a question of law addressed to the trial court at the close of the plaintiff's evidence, which strikes at the heart of the cause of action, need not, under all circumstances, be renewed at the close of all the evidence as a prerequisite to appellate review of the same question." Id. at 776. The court explained:

[I]f the motion for directed verdict at the close of plaintiff's evidence provides the opposing party and the court with notice of the question of law, renewal of the motion at the close of all evidence is redundant and nonessential . . .

. . . [O]nce a question of law is presented by a motion for directed verdict at the close of the plaintiff's evidence, the moving party has fulfilled his obligation to provide notice to the nonmoving party that the legal basis of his case is challenged; and the motion at the close of the plaintiff's evidence provides notice to the court of the challenge to the legal basis of the plaintiff's claim. [citation omitted] It is not the obligation of the moving party to provide continuous notice of a pure question of law, once that issue is properly raised and adversely ruled upon by the court.

Id. at 778. The court also noted that "all of the evidence bearing on the legal defense of 'qualified immunity' was before the trial court at the close of the plaintiff's case-in-chief." Id. at 776. Compare Denton v. Foley Athletic Club, 578 So.2d 1314, 1316 (Ala. Civ. App. 1990) (defendants moved for directed verdict based on contributory negligence at close of plaintiff's case but did not renew motion at close of all evidence; court held that since evidence was disputed, issue of contributory negligence was not "one of pure law" under Barnes, and defendants therefore failed to preserve issue for appeal).

Another exception to the two-step procedure relates to punitive damages, recoverable where the plaintiff proves by "clear and convincing evidence" that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice with regard to the plaintiff.²⁷ In Sears, Roebuck & Co. v. Harris, 630 So.2d 1018 (Ala. 1993), cert. denied, 511 U.S. 1128 (1994), the court held that "[i]t is not necessary, before entry of judgment, to object to the absence of clear and convincing evidence of wantonness to preserve the issue for appellate review," and that a post-judgment motion for JML addressing the issue is therefore sufficient without a motion at the close of the evidence. The court explained that "[t]he issue of whether an award of punitive damages is supported by clear and convincing evidence necessarily does not arise either until a party requests an instruction on punitive damages or until after the jury renders a verdict and the trial court enters a judgment," so it is permissible to raise the issue for the first time in a post-judgment motion. 630 So.2d at 1031-32.

Finally, in K.S. v Carr, 618 So.2d 707 (Ala. 1993), the court held that under the circumstances there presented, it was unnecessary for the verdict-winner to file a post-judgment motion for JML in order to preserve the sufficiency of evidence issue for appeal. The defendants in Carr moved for directed verdict at the close of plaintiff's case and again at the close of all the evidence. The court denied these motions and submitted the case to the jury, which returned a verdict for the defendants. The plaintiff did not move for a new trial but appealed the judgment, based on a Batson violation in jury selection. The defendants cross-appealed, contending the evidence was insufficient to submit plaintiff's claims to the jury and that the trial court erred in denying their motions for directed verdict. Plaintiff argued the defendants had not preserved this issue because they did not file a post-judgment motion for JNOV. The supreme court held that the defendants were not required to file such a motion seeking entry of judgment in their favor, because they had already obtained a verdict and judgment in their favor. Id. at 712. The court further noted that the defendants would have had to file a motion for JNOV within 30 days after entry of judgment, before the plaintiff filed her notice of appeal, and stated that "[i]t would clearly be an exercise in futility for a jury verdict winner to move for a j.n.o.v. before that party is even aware that the losing party is challenging the jury verdict." Id. The court found that the judgment entered on the jury verdict for the defendants had to be reversed because of the Batson violation, but then proceeded to render judgment for the defendants on their cross-appeal, concluding that the evidence was indeed insufficient and that the trial court should have directed a verdict. Id. at 715.

Form and Substance of Motion for JML

Ala. R. Civ. P. 50(a) provides that a motion for JML "shall specify the judgment sought and the law and the facts on which the moving party is entitled to judgment." The motion may be oral, but the better practice is to file a written motion.²⁸ While technical precision is not required, the motion must adequately apprise the court of the movant's position.²⁹ In addition, since a post-judgment motion for JML "is nothing more than a renewal of the earlier motion made at the close of the presentation of the evidence, it cannot assert a ground that was not included in the earlier motion." 9A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure §2537, at 344-45 (2d ed. 1995). Averment of additional grounds in the post-judgment motion is improper, and the new grounds may not be considered.³⁰

The motion for JML should be specific, addressing individual counts and claims and each of their factual and legal elements, rather than a "general" motion going to the case as a whole, such as one merely stating that "the evidence did not establish liability." The latter is disfavored and "in some instances [] would not be sufficient to invoke appellate review." Saxon v. Johnson, 393 So.2d 1007, 1010 (Ala. Civ. App. 1980), cert. denied, 393 So.2d 1012 (Ala. 1981). The supreme court has stated that "a general motion [for JML] can only go to the case in its entirety, and not to individual subdivisions; and, to preserve individual issues, a motion must be made for [JML] on each of the individual issues." Housing Authority of Prichard v. Malloy, 341 So.2d 708, 709 (Ala. 1977). See also Aspinwall v. Gowens, 405 So.2d 134, 138 (Ala. 1981) (in case involving multi-court complaint, defendant's motion for JML must "specify[] the count which is not supported by the evidence and detail[] with specificity the grounds upon which the particular count is not supported by the evidence").

Motions lacking the necessary specificity can and do result in waiver. For example, in Cone Builders, Inc. v Kulesus, 585 So.2d 1284 (Ala. 1991), the defendant in a breach of contract case moved for directed verdict "as to each and every count in the complaint," but the motion did not specifically address the issues of plaintiff's failure to give notice of the breach and his frustration of the defendant's performance of the contract. The defendant attempted to argue these issues on appeal, but the supreme court held that the defendant's motion for directed verdict was too "general" to preserve them. Id. at 1290. See also Sears, Roebuck & Co. v. Harris, 630 So.2d 1018, 1027 (Ala. 1993) (through defendant filed motion for JNOV containing 57 grounds, none of them related to sufficiency of plaintiff's evidence that lack of safety device on product rendered it defective, so defendants "waived appellate review of this issue"), cert denied, 511 U.S. 1128 (1994); Treadwell Ford, Inc. v. Campbell, 485 So.2d 312, 315-16 (Ala. 1986) (defendant's motion for directed verdict "did not specifically include a challenge to [an AEMLD] cause of action" and therefore waived this issue); Ott v. Fox, 362 So.2d 836, 838 (Ala. 1978) (motion for directed verdict in conversion case which failed to question plaintiff's ownership of allegedly converted property did not preserve this issue).

In view of the above, it is recommended that a defendant's motion for JML assert that there is no legally sufficient evidentiary basis for reasonable jury to find for the plaintiff on each count of the complaint, each claim, each element of each claim, each material factual allegation, and each item of damages sought. The motion should further assert that the evidence establishes each of the defendant's affirmative defenses and each element thereof. The motion should also city supporting legal authority where appropriate.

"Good count/bad count" rule

The specificity of the motion for JML has critical significance in the situation where the court submits several claims to the jury, one or more of which are unsupported by the evidence, and the jury then returns a general verdict for the plaintiff, such that "it is impossible to know on which of the multiple theories the jury based its verdict." King Mines Resort, Inc. v. Malachi Mining & Minerals, 518 So.2d 714, 716 (Ala. 1987). In this situation, what is known as the "good count/bad count" rule applies. Under this rule, if the defendant files a general motion for JML going to the case as a whole, rather than one challenging the sufficiency of the evidence to support each of the plaintiff's claims, the judgment will be affirmed if any claim submitted to the jury was "good," that is, supported by substantial evidence, even though other claims submitted were "bad," i.e., unsupported by the evidence. The verdict in this case is said to be "referable to the 'good' theory," or the theory supported by the evidence. Id. at 716-17. There is no reversible error, because the trial court does not err in denying a general motion for JML, asking for JML on the case as a whole, if there is any viable claim. Id. at 716.

On the other hand, if the defendant files a motion for JML specifically challenging the sufficiency of the evidence to support each claim, then

the jury's general verdict is due to be sustained on a timely filed post-judgment motion for [JML], specifying the same ground, only if each of the challenged theories is supported by the evidence. If one or more of the challenged theories is not supported by the evidence, the movant is entitled to [JML] on the unsupported theory or theories and to a new trial on the remaining theories; in this event, the verdict is not referable to the "good" theory.

Id. (italics in original, other emphasis added).³¹ This is so because the trial court does err in submitting unsupported claims to the jury where the defendant specifically moved for JML on those claims, and it is possible that the jury premised its verdict on a "bad" theory which it never should have been allowed to consider.

The "good count/bad count" rule only applies when the jury renders a general verdict. Where the jury's decision is accompanied by a special verdict form or jury interrogatories so that it can be determined which claim or claims formed the basis for the verdict, the rationale for the "good count/bad count" rule disappears. As long as at least one of the claims on which the jury based its verdict was "good" and sufficient to support the judgment, the fact that the defendant may have been entitled to JML on other "bad" claims will be considered harmless error, and the judgment will be sustained.³²

Use of Motion for JML by Plaintiffs

The motion for JML is most often considered a tool for the defendant to challenge the sufficiency of the plaintiff's evidence. As discussed above, however, a plaintiff can ask the court to enter JML in the plaintiff's favor on its claims. The plaintiff can also move for JML against the defendant on its affirmative defenses.³³ Where the plaintiff fails to challenge the sufficiency of the evidence to support an affirmative defense, the plaintiff is precluded from arguing on appeal that the trial court erred in submitting the defense to the jury.³⁴

As Justice Houston has recognized, the rationale of the "good count/bad count" rule also applies to defenses. "Just as in cases in which a good count and a bad count are submitted to the jury. . ., if [the plaintiff files] no directed verdict motion specifically address[ing] the 'bad defense,' a general verdict for the defendant will be presumed by [the appellate court] to have been returned on the 'good defense,'" and the judgment will be affirmed. Gore v. Ford Motor Co., 601 So.2d 953, 954-55 (Ala. 1992) (Houston, J., concurring specially).

When to File the Motion for JML

As previously stated, in order to preserve issues for appellate review, a part must file a motion for JML at the close of all the evidence and renew the motion within 30 days (10 days in federal court) after entry of judgment. Rule 50(a) allows the filing of a motion for JML, however, "at any time before submission of the case to the jury," as long as the opposing party "has been fully heard on [the] issue" made the subject of the motion.

It is customary and advisable for a defendant to file a motion for JML at the close of the plaintiff's case, the plaintiff having been "fully heard" on its claims at that time. Where the defendant does not file a motion at the close of the plaintiff's case, a plaintiff who has failed to meet the evidentiary standard with respect to one or more of its claims, and who would otherwise have had JML entered against it, is then given a second chance to adduce the necessary evidence on cross-examination of the defendant's witnesses or on rebuttal. If the court grants the defendant's motion at the close of plaintiff's evidence only in part, appellate review of the JML will still be limited to the evidence in the record at the time the motion was granted; the appellate court will not consider evidence adduced by the plaintiff thereafter.³⁵ For these reasons, it is certainly to the defendant's advantage to move for JML at the close of the plaintiff's case.

Though Rule 50(b) refers to renewal of a motion for JML "after entry of judgment," the rule also contemplates filing a renewed motion where "no verdict was returned," that is, after a mistrial. In that case, the time for filing the renewed motion runs from the date the jury was discharged.

Motions for New Trial

Ala. R. Civ. P. 59(a) provides for motions for new trial. The rule states that a new trial may be granted "for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of Alabama." Certain grounds are enumerated in Ala. Code §12-13-11 (1995), as follows:

(3) Irregularity in the proceedings of the court, jury or prevailing party, or any order of court, or abuse of discretion, by which the party was prevented from having a fair trial.
(4) Misconduct of the jury or prevailing party.
(5) Accident or surprise, which ordinary prudence could not have guarded against.
(6) Excessive or inadequate damages.
(7) Error in the assessment of the amount of recovery, whether too large or too small where the action is upon a contract or for the injury or detention of property.
(8) The verdict or decision is not sustained by the great preponderance of the evidence or is contrary to law.
(9) Newly discovered evidence, material for the party applying, which he could not, with reasonable diligence, have discovered and produced at the trial.
(10) Error of law occurring at the trial and properly preserved by the party making the application.

These grounds are not exclusive; a court may also order a new trial on other, common law grounds.³⁷

Unlike the motion for JML, the trial court exercises discretion in ruling on a motion for new trial, and its decision "should not be disturbed on appeal unless some legal right was abused and the record plainly and palpably shows that the trial court erred." Senn v. Alabama Gas Corp., 619 So.2d 1320, 1323, (Ala. 1993).

Necessity of Motion for Trial to Preserve Issues for Appeal

As stated at the beginning of this article, appellate review requires that issues first be presented to, and ruled upon by, the trial court.³⁸ Once a party presents an issue for a ruling during the course of trial, for example, by objecting to admission of evidence or to the court's jury instructions, this requirement is satisfied - the trial court has passed upon the matter.³⁹ There is no "two-step procedure" under Rule 59, as there is under Rule 50, and Ala. R. App. P. 4(a)(3) expressly provides that "[a]ny error or ground of reversal or modification of a judgment or order which was asserted in the trial court may be asserted on appeal without regard to whether such error or ground has been raised by motion in the trial court under . . . Rule 59 of the ARCP" (emphasis added).⁴⁰

The Committee Comments to Appellate Rule 4 caution, however, that the rule "does not . . . extend the right to raise for the first time on appeal new matter not presented to the trial court or upon which the trial court had no opportunity to pass," and that "matters which can only be asserted by post-trial motion must be so asserted" (emphasis added). Such matters generally involve defects in the jury's verdict, which do not occur until the verdict is rendered and therefore cannot have been addressed earlier. For example, until the jury renders its verdict, a party obviously cannot complain that the verdict is against the weight and preponderance of the evidence. After entry of judgment, however, the party must present this issue to the trial court in a motion for new trial in order to preserve it for appellate review.⁴¹ As the court explained in Porter v. Alabama Farm Bureau Mut. Cas. Ins. Co., 279 Ala. 499, 187 So.2d 254 (1966).

It is apparent . . . that such a motion for new trial is necessary in order to obtain, for the first time, a ruling, by the trial court, on the weight of the evidence. It seems that the purpose of the motion is not to afford the trial court a second opportunity to rule on the same question, but to obtain a ruling by the trial court on the weight of the evidence. The jury has already judged the weight of the evidence, but the trial court has not ruled on the weight of the evidence. In the absence of a ruling by the trial court, there is no ruling of which the appellant may complain. The motion for new trial is necessary to obtain such ruling.

187 Co.2d at 258-59.

Other "verdict problems" which must be addressed in a motion for new trial include inconsistency of the verdict,⁴² inadequate damages,⁴³ excessive compensatory damages,⁴⁴ and excessive punitive damages.⁴⁵ Again, because these types of errors cannot be raised and preserved pre-verdict, they must be presented to the trial court post-verdict, as otherwise there is no ruling by the trial court for the appellate court to review.

The supreme court has also held that insufficiency of the evidence can be raised in either a motion for JML or a motion for new trial,⁴⁶ though the motions address the issue in different way (the motion for JML attacks the sufficiency of the opposing party's evidence to have its claims or defenses submitted to the jury in the first place, while the motion for new trial tests whether the verdict itself is against the weight and preponderance of the evidence).⁴⁷ As discussed above, where a party fails to move for JML at the close of the evidence, it has waived any right to file a post-judgment motion for JML or to argue for JML on appeal; thus, in this situation, a party can preserve the sufficiency of evidence issue only by filing a motion for new trial.⁴⁸

There are two disadvantages to preserving this issue in a motion for new trial rather than a motion for JML. First, if the appellate court finds the evidence insufficient, it can only order a new trial, rather than entry of JML.⁴⁹ Second, while the standard of review of an order granting or denying a motion for JML is de novo,⁵⁰ an appellate court reviews the trial court's ruling on a motion for new trial only for abuse of discretion.⁵¹ The supreme court has stated that it will not order a new trial on the ground that the evidence was insufficient "unless the evidence, when viewed in a light most favorable to the nonmovant, shows that the verdict was 'plainly and palpably wrong and unjust.'" Carter v. Henderson, 598 So.2d 1350, 1354 (Ala. 1992).

Form and Substance of Motion for New Trial

Rule 59 contains no requirements as to the form or substance of a motion for new trial, but Alabama courts hold that "[t]he grounds set out in a motion for new trial must sufficiently specify the precise error that is alleged to have occurred," thus requiring some degree of precision in stating the basis for the motion. Benson v. Vick, 460 So.2d 1309, 1313 (Ala. Civ. App. 1984)⁵² A motion for new trial alleging that "the verdict is contrary to the evidence" may be insufficient to preserve issues as to the amount of damages awarded, ⁵³ and one averring that the verdict is "contrary to the law in the case" and "contrary to the facts of this case" has been held too general to preserve any error.⁵⁴

When to File the Motion for New Trial

Ala. R. Civ. P. 59(b) requires that a motion for new trial be filed within 30 days after entry of judgment on the jury's verdict (the federal rule is 10 days). Also, when a party obtains a verdict and judgment in its favor, but the trial court then grants the opposing party's post-judgment motion for JML, Rule 50(c)(2) gives the verdict-winner another 30 days to file a motion for new trial, running from the date of entry of the JML (again, the federal rule is 10 days).

Conclusion

The motion for JML seeks entry of judgment for the movant on the ground that the evidence is insufficient for a reasonable jury to find for the opposing party. A party must move for JML at the close of all the evidence and renew the motion within 30 days (10 days in federal court) after entry of judgment in order to preserve the issue of its entitlement to JML for appeal. Defendants should also move for JML at the close of the plaintiff's case. The motion should be specific, with a defendant's motion asserting that there is no legally sufficient evidentiary basis for a reasonable jury to find for the plaintiff on each count of the complaint, each claim, each element of each claim, each material factual allegation, and each item of damages sought, and also asserting that the evidence established each of the defendant's affirmative defenses and each element thereof.

A motion for new trial must be filed within 30 days (10 days in federal court) after entry of judgment. The motion is not required to preserve issues raised and ruled upon during the course of trial, but is necessary to preserve issues involving defects in the jury's verdict. Also, where a party fails to move for JML at the close of all the evidence, the only way to preserve the issue of insufficiency of the evidence is by filing a motion for new trial. There are distinct disadvantages to preserving this issue in a motion for new trial rather than a motion for JML, however, as the standard of review is more deferential and the relief available is limited to a new trial.

Notes

1. Non-jury trials are beyond the scope of this article, as Ala. R. Civ. P.50 expressly applies to jury trials. Id. at (a) and (b). The means of challenging evidentiary sufficiency in a bench trial is by motion for involuntary dismissal pursuant to Ala. R. Civ. P. 41(b). See Feaster v. American Liberty Ins. Co., 410 So.2d 399, 401 (Ala. 1982). The procedure on a Rule 41(b) motion is substantially different than on a Rule 50 motion in terms of the court's authority to weigh the evidence and assess the credibility of witnesses, since the court is the trier of fact in a bench trial. Id at 401-402; Kent v. Sims, 460 So.2d 144-46 (Ala. 1984). The necessity of a motion for new trial to preserve issues for appeal also differs in non-jury trials. See Ex parte Kirkley, 418 So.2d 118, 120 (Ala. 1982); Securitronics of Am. v. Bruno's Inc., 414 So.2d 950, 951 (Ala. 1982).
2. Committee Comments to Oct. 1, 1995 amendment to Ala. R. Civ. P. 50; Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated (3d ed. 1996) at 838.
3. Fed. R. Civ. P. 50(b).
4. Fleet Nat'l Bank v. Anchor Media Television, 45 F.3d 546, 552 (1st Cir. 1995); Vetter v. Farmland Indus., 901 F. Supp. 1446, 1450 n. 1 (N.D. Iowa 1995); Windsor Shirt Co. v. New Jersey Nat'l Bank, 793 F. Supp. 589, 594 n. 4 (E.D. Pa. 1992), aff'd, 989 F.2d 490 (3d Cir. 1993). See also Tate v. Government Employees Ins. Co., 997 F.2d 1433, 1434 n. 1 (11th Cir. 1993) ("The only difference is the name.").
5. Advisory Committee Notes to 1991 amendment to Fed. R. Civ. P. 50 (amendment "effects no change in the existing standard"); Slade Gorton & Co. v. Millis, 794 F. Supp. 175, 176 (E.D.N.C. 1992), aff'd, 62 F.3d 1433 (Fed. Cir. 1995).
6. See, e.g. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3. 8 (Ala. 1997); Isenbergh v. Knight-Ridder Newspaper Sales, Inc., Regional Medical Ctr., 33 F.3d 1318, 1333 (11th Cir. 1994), cert. denied, 115 S.Ct. 1363 (1995). See also Champ Lyons, Jr., Alabama Rules of Civil Procedure Annotated (3d ed. 1996) at 838 ("Authorities that predate the name change remain valid except for the references to obsolete terminology.").
7. Carter v. Henderson, 598 So.2d 1350, 1353 (Ala. 1992); Danford v. Arnold, 582 So.2d 545, 546 (Ala. 1991); Hanson v. Couch, 360 So.2d 942, 944 (Ala. 1978).
8. Ala. R. Civ. P. 50(a) (1).
9. Carter v. Henderson, 598 So.2d 1350, 1353 (Ala. 1992); King Mines Resort, Inc. v. Malachi Mining & Minerals, 518 So.2d 714, 715-16 (Ala. 1987).
10. E.g., Ala. Code §6-11-20(a) (1993) (requiring proof of wrongful conduct by "clear and convincing evidence" to recover punitive damages); Lowman v. Piedmont Executive Shirt Mfg. Co., 547 So.2d 90, 95 (Ala. 1989) (holding that plaintiff must prove claim of fraud against employer, fellow employee, or employer's insurer arising out of handling of worker's compensation claim by clear and convincing evidence).
11. Federal law supplies the standard for granting a motion for JML in federal court, see Miles v. Tennessee River Pulp & Paper Co., 862 F.2d 1525, 1527-28 (11th Cir. 1989), but the federal standard is essentially the same as under Alabama law. See, e.g. Walker v. NationsBank, 53 F.3d 1548, 1555 (11th Cir. 1995) (court should grant motion for JML "(i)f the facts and inferences are so strong and overwhelming in favor of one party that the court believes that reasonable persons could not arrive at a contrary verdict," but should deny motion "(i)f ... substantial evidence is presented opposed to the motion").
12. See, e.g. Vernon Carpet Mills, Inc. v. Rossville Spinning Corp., 344 So.2d 1205, 1208 (Ala. 1977) (affirming directed verdict for plaintiff on its claim).
13. See, e.g. Sprouse v. Belcher Oil Co., 577 So.2d 443, 444-45 (Ala. 1991) (affirming JNOV for defendant based on affirmative defense on its claim).
14. Alabama Power Co. v. Taylor, 293 Ala. 484, 306 So.2d 236, 241-43 (1975). See also Vintage Enters. V. Cash, 348 So.2d 476, 478-79 (Ala. 1977).
15. Lowe's Home Ctrs. V. Laxson, 655 So.2d 943, 945-46 (Ala. 1994); Vintage Enters. V. Cash, 348 So.2d 476, 478-79 (Ala. 1977).
16. Continental Assurance Co. v. Kountz, 461 So.2d 802, 806 (Ala. 1984); Alabama Power Co. v. Wallace, 548 So.2d 1372, 1377 (Ala. 1989).
17. Bazzell v. Pine Plaza Joint Venture, 491 So.2d 910, 911 (Ala. 1986).
18. Barnes v. Dale, 530 So.2d 770, 776 (Ala. 1988).
19. Barnes v. Dale, 530 So.2d 770, 776 (Ala. 1988); King Mines Resort, Inc. v. Malachi Mining & Minerals, 518 So.2d 714, 716 (Ala. 1987).
20. King Mines Resort, Inc. v. Malachi Mining & Minerals, 518 So.2d 714, 716 (Ala. 1987); Bains v. Jameson, 507 So.2d 504, 505 (Ala. 1987); Ala. R. Civ. P. 50(b); Fed. R. Civ. P. 50(b).
21. Johnny Spradlin Auto Parts, Inc. v. Cochran, 568 So.2d 738, 741 (Ala. 1990); Bains v. Jameson, 507 So.2d 504, 505 (Ala. 1987); Independent Life & Accident Ins. Co. v. Parker, 449 So.2d 233, 236 (Ala. 1984); Great Atl. & Pac. Tea Co. v. Sealy, 374 So.2d 877, 880-82 (Ala. 1979).
22. Skipper v. Alabama Farm Bureau Mut. Cas. Inc. Co., 460 So.2d 1270, 1272 (Ala. 1984); Sims v. Hall, 644 So.2d 11, 12 (Ala. Civ. App. 1994).
23. Johnny Spradlin Auto Parts, Inc. v. Cochran, 568 So.2d 738, 741 (Ala. 1990); Powell v. Vanzant, 557 So.2d 1225, 1227 (Ala. 1990);Independent Life & Accident Ins. Co. v. Parker, 449 So.2d 233, 236 (Ala. 1984).
24. Powell v. Vanzant, 557 So.2d 1225, 1227 (Ala. 1990); Kabel v. Brady, 519 So.2d 912, 919-20 (Ala. 1987); Great Atl. & Pac. Tea Co. v. Sealy, 374 So.2d 877, 881(Ala. 1979).
25. King Mines Resort, Inc. v. Malachi Mining & Minerals, 518 So.2d 714, 716-17 (Ala. 1987).
26. See Denton v. Foley Athletic Club, 578 So.2d 1314, 1316 (Ala. Civ. App. 1990); United States v. Mountain State Fabricating Co., 282 F.2d 263, 265 (4th Cir. 1960).
27. Ala. Code §6-11-20(a) (1993).
28. Pettway v. Pepsi Cola Bottling Co., 337 So.2d 757, 759 (Ala. 1976).
29. Saxon v. Johnson, 393 So.2d 1007, 1010 (Ala. Civ. App. 1980), cert. Denied, 393 So.2d 1012 (Ala. 1981).
30. See Barnes v. Dale, 530 So.2d 7770 776 (Ala. 1988) ("It is a procedural absolute that a motion for JNOV, based on 'insufficiency of the evidence,' is improper, if the party has not moved for a directed verdict on the same ground at the close of all the evidence."); Johnny Spradlin Auto Parts, Inc. v. Cochran, 568 So.2d 738, 749 (Ala. 1990); Rockport Pharmacy, Inc. v. Digital Simplistics, Inc., 53 F.3d 195, 197 (8th Cir. 1985); Samuels v. Air Transp. Local 504, 992 F.2d 12, 14 (2d. Cir. 1993).
31. See also Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3, 8 (Ala. 1997); St. Clair Fed. Sav. Bank v. Rozelle, 653 So.2d 986, 988 (Ala. 1995).
32. Cf. King Mines Resort, Inc. v. Malachi Mining & Minerals, 518 So.2d 714, 716 n. 3 (Ala. 1987). See also Johnson Int'l Co. v. Johnson Nat'l Life Ins. Co., 19 F.3d 431, 437 (8th Cir. 1994); Bone v. Refco, Inc., 774 F.2d 235, 242043 and n. 9 and 10 (8th Cir. 1985); Jones v. Miles, 656 F.2d 103, 108 (5th Cir. 1981); Castilleja v. Southern Pac. Co., 445 F.2d 183, 187 (5th Cir. 1971).
33. See Spence v. Southern Pine Elec. Coop., 643 So.2d 970, 971 (Ala. 1994).
34. Cody v. Louisville & N.R.R., 535 So.2d 82, 86 (Ala. 1988); Bains v. Jameson, 507 So.2d 504, 505 (Ala. 1987).
35. Hamer v. Nelson, 516 So.2d 1381, 1383 (Ala. 1987).
36. 9A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedures §2537 at 350 (2d ed. 1995).
37. Birmingham Elec. Co. v. Yost, 256 Ala. 673, 57 So.2d 103, 105 (1951); Equitable Fin. Co. v. Burns, 220 Ala. 559, 126 So. 885 (1930).
38. Norman v. Bozeman, 605 So.2d 1210, 1214 (Ala. 1992).
39. See Ala. R. Civ. P. 46: Ala. R. Civ. P. 51 and Committee Comments; Beloit Corp. v. Harrell, 339 So.2d 992, 997 (Ala. 1976); Conner v. State, 52 Ala. App. 82, 289 So.2d 650, 654 (1973), cert. denied 292 Ala. 716, 289 So.2d 656 (1974); 2 Charles A. Gamble, McElroy's Alabama Evidence §429.01 (5th ed. 1996). See also Floyd v. Laws, 929 F.2d 1390, 1400 (9th Cir. 1991).
40. See Clark v. Black, 630 So.2d 1012, 1014-16 (Ala. 1993) (unnecessary to file motion for new trial asserting that trial court erred in directing verdict for opposing party), McGough v. Slaughter, 395 So.2d 972, 975 (Ala. 1981); State v. Long, 344 So.2d 754, 757 (Ala. 1977); Smither v. International Paper Co., 540 So.2d 760, 761 (Ala. Civ. App. 1989).
41. Broughton v. Kilpatrick, 362 So.2d 865, 868 (Ala. 1978); Deatherage v. Walker, 387 So.2d 845, 847 (Ala. Civ. App. 1980).
42. Lowder Realty Co. v. Sabry, 542 So.2d 1240, 1242 (Ala. 1989).
43. Mixon v. Seaboard Sys. R.R., 548 So.2d 1034, 1036 (Ala. 1989).
44. ITEC, Inc. v. Automated Precision, Inc., 623 So.2d 1139, 1140 (Ala. 1993).
45. Auburn Ford, Lincoln Mercury, Inc. v. Norred, 541 So.2d 1077, 1081 (Ala. 1989).
46. Rutledge Indus, Corp. v. Talladega Foundry & Mach. Co., 582 So.2d 436, 438 (Ala. 1991); King Mines Resort, Inc. v. Malachi Mining & Minerals, 518 So.2d 714, 716 (Ala. 1987); Independent Life & Accident Ins. Co. v. Parker, 449 So.2d 236-37 (Ala. 1984); State v. Long, 344 So.2d 754, 756 (Ala. 1977). See also Najor v. Pensacola Pools, Inc., 607 So.2d 294, 295 (Ala. Civ. App. 1992); Harlan v. Smith, 507 So.2d 943, 944 (Ala. Civ. Ap. 1986); cert. denied, 507 So.2d 943 (Ala. 1987).
47. See Carter v. Henderson, 598 So.2d 1350, 1353-54 (Ala. 1992); Rutledge Indus. Corp. v. Talladega Foundry & Mach. Co., 582 So.2d 436, 437-38 (Ala. 1991); King Mines Resort, Inc. v. Malachi Mining & Minerals, 518 So.2d 714, 715-17 (Ala. 1987); Independent Life & Accident Ins. Co. v. Parker, 449 So.2d 233, 236-37 (Ala. 1984).
48. See Rutledge Indus. Corp. v. Talladega Foundry & Mach. Co., 582 So.2d 436, 439 (Ala. 1991); Shadwrick v. State Farm Fire & Cas. Co., 578 So.2d 1075, 1077 (Ala. 1991); King Mines Resort, Inc. v. Malachi Mining & Minerals, 518 So.2d 714, 716 (Ala. 1987); Independent Life & Accident Ins. Co. v. Parker, 449 So.2d 233, 236 (Ala. 1984); Harlan v. Smith, 507 So.2d 943, 944 (Ala. Civ. Ap. 1986), cert. denied, 507 So.2d 943 (Ala. 1987).
49. King Mines Resort, Inc. v. Malachi Mining & Minerals, 518 So.2d 714, 716 (Ala. 1987).
50. Teague v. Adams, 638 So.2d 836, 837 (Ala. 1994).
51. Hill v. Cherry, 379 So.2d 590, 592 (Ala. 1980) Harris v. Hinkle Roofing & Sheet Metal, Inc., 628 So.2d 872, 873 (Ala. Civ. App. 1993).
52. See also Ala. R. Civ. P. 7(b) (motions "shall state with particularity the grounds therefore, and shall set forth the relief or order sought"). See generally 5 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedures §1192 (2d ed. 1990).
53. Nobility Homes, Inc. v. Ballentine, 386 So.2d 727, 729 (Ala. 1980).
54. Trotter v. Sumner, 56 Ala. App. 87, 319 So.2d 284, 286 (1975).