Moving for a Directed Verdict and, then, a Motion to Set Aside the Verdict

Posted by David Adelstein on January 15, 2015
Appeal, Evidence

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Moving for a directed verdict is a standard procedure in a jury trial.  Simply put, after the plaintiff puts on its case-in-chief (evidence supporting its claims against the defendant), the defendant moves for a directed verdict stating that even assuming all of the evidence is true and undisputed, and all inferences relating to that evidence favor the plaintiff, the plaintiff failed to prove its case as a matter of law and a jury cannot reasonably enter a verdict in favor of the plaintiff based on that evidence. See Wald v. Grainger, 64 So.3d 1201 (Fla. 2011); see also Etheredge v. Walt Disney World Co., 999 So.2d 669, 672 (Fla. 5th DCA 2008) (“In other words, a motion for directed verdict shall be granted only if no view of the evidence could support a verdict for the non-moving party and that the trial court therefore determines that no reasonable jury could render a verdict for that party.”)     

This is best explained by the Florida Supreme Court:

“A party moving for a directed verdict admits the truth of all facts in evidence and every reasonable conclusion or inference which can be drawn from such evidence favorable to the non-moving party. A directed verdict is proper when the evidence and all inferences from the evidence, considered in the light most favorable to the non-moving party [plaintiff or party putting on evidence in support of their claim], support the movant’s case as a matter of law and there is no evidence to rebut it.

 Wald, 64 So.3d at 1205 (Fla. 2011) (citations omitted).

A defendant may move for a directed verdict after the plaintiff puts on all of its evidence.  A plaintiff can move for a directed verdict after the defendant puts on all of its evidence as to an affirmative defense.  And, a plaintiff (referred to as a counter-defendant) can move for a directed verdict after the defendant (referred to as a counter-plaintiff) puts on all of its evidence if the defendant has counter-sued the plaintiff.

A party moves for a directed verdict in accordance with Florida’s Rules of Civil Procedure.  See Fla.R.Civ.P. 1.480.   If the motion for directed verdict is denied, which is not uncommon, the trial continues.   But, and this is a very, very important but:

“When a motion for a directed verdict 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. Within 15 days after the return of a verdict, a party who has timely moved for a directed verdict may serve a motion to set aside the verdict and any judgment entered thereon and to enter judgment in accordance with the motion for a directed verdict [also commonly referred to as a motion for a judgment notwithstanding the verdict]. If a verdict was not returned, a party who has timely moved for a directed verdict may serve a motion for judgment in accordance with the motion for a directed verdict within 15 days after discharge of the jury.” 

Fla.R.Civ.P. 1.480(b).  This means that if a party moves for a directed verdict and that motion is denied, the trial continues and will be submitted to the jury to render a verdict.  If the verdict favors a party (e.g., plaintiff), the opposing party (e.g., defendant) within 15 days can file a motion for the court to set aside the verdict and enter a judgment in accordance with the earlier motion for directed verdict.   This is important because if a party does NOT timely move for the court to set aside the verdict and enter judgment in accordance with the directed verdict, the party will NOT have properly preserved the directed verdict for appealSee Murray v. State, 27 So.3d 781 (Fla. 3d DCA 2010) (defense failed to timely preserve directed verdict for appeal because it did not move the court to set aside the verdict and enter judgment in accordance with the directed verdict).

(Notably, it used to be that a party needed to renew a motion for a directed verdict at the conclusion of the trial—close of all of the evidence.  Florida Rule of Civil Procedure 1.480 was amended in 2010 removing the requirement to renew a motion for directed verdict at the close of all of the evidence in order to preserve the right to file a motion to set aside the verdict.  Now, a party just needs to timely move for a directed verdict at the close of the opposing party’s evidence and then timely file the motion to set aside the verdict.)

Oftentimes, a party at the conclusion of a trial will move the court to set aside the verdict and enter judgment notwithstanding the jury’s verdict or, alternatively, move the court for a new trialSee Fla.R.Civ.P. 1.480(b).   Hence, if the court is considering granting a motion for directed verdict, it may deny the motion to see how the jury decides the evidence.  If the jury still finds in favor of a party, the judge can (if a party timely moves for a judgment not withstanding the verdict) still enter a judgment notwithstanding the verdict.

The standard of appellate review if a trial court grants a directed verdict is de novoSee Merritt v. OLMHP, LLC, 112 So.3d 559 (Fla. 2d DCA 2013).   This is the same standard of review if a trial court grants a motion to set aside the verdict and enter judgment in accordance with the motion for direct verdict (again, also called a motion for judgment notwithstanding the verdict).  See Specialty Marine & Industrial Supplies, Inc. v. Venus, 66 So.3d 306 (Fla. 1st DCA 2011).

Please contact David Adelstein at dadelstein@gmail.com or (954) 361-4720 if you have questions or would like more information regarding this article. You can follow David Adelstein on Twitter @DavidAdelstein1.

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