Civil Procedure-Necessity of Motion for New Trial or Judgment NOV to Challenge Sufficiency of Evidence on Appeal

Marquette Venture Partners v. Leonesio, __Ariz. Adv. Rep. __ , 1 CA-CV 09-0166 (App. Div. I, May 3, 2011) (J. Portley)
DEFENDANT MUST FILE MOTION FOR NEW TRIAL OR FOR JUDGMENT NOV AFTER VERDICT IS IN TO PRESERVE RIGHT TO CHALLENGE SUFFICIENCY OF EVIDENCE ON APPEAL; PRETRIAL MOTIONS AND PREVERDICT MOTION UNDER RULE 50 (A) DO NOT SUFFICE

Plaintiffs and defendants merged their fitness club businesses and almost immediately thereafter suit was filed between the parties. The suit was eventually settled and this lawsuit and counterclaim arises out of alleged breaches in that settlement agreement. This suit proceeded to trial. Prior to trial defendants filed unsuccessful motions for summary judgment and after trial but before verdict a rule 50 (a) motion for judgment as a matter of law which was also denied. Plaintiff received a verdict for compensatory and punitive damages on a breach of fiduciary count but all other counts in plaintiffs complaint were rejected by the jury. Notably, defendants did not file a post trial motion for new trial pursuant to Arizona Rules of Civil Procedure Rule 50 (b). Plaintiff appealed and defendant cross appealed, each on a variety of issues. Plaintiff challenged defendants' arguments related to the sufficiency of the evidence and the Arizona Court of Appeals agreed that absent the filing of a motion for new trial issues related to the sufficiency of the evidence could not be raised on appeal.

The court noted that ARS sec. 12-2102 (C) provides “a motion for new trial must be made before the scope of the appeal may be enlarged to include the sufficiency of the evidence to sustain the verdict or judgment.” Here, while defendant's motion for judgment as a matter of law is based upon arguments regarding the sufficiency of the evidence, rule 50 (a) is discretionary. While the court “may” grant the motion it may also let the matter proceed to verdict and then reconsider the argument when raised after verdict in a rule 50 (b) renewed motion for judgment after trial or motion for new trial where it has the option of granting judgment or ordering a new trial and giving the plaintiff another chance at proving the claim. Rules 50 (a) and (b) are not redundant or substantively the same. Even where the trial court has the power to grant a rule 50 (a) motion before verdict the rules intend that the court have the right to forgo such a ruling and hold open the option of first seeing what the jury decides and thereafter consider judgment or new trial as a consequence of a verdict unsupported by the evidence.