Wе granted certiorari in these cases to consider whether a party waives her right to contest the sufficiency of the evidence on appeal by failing to move for a directed verdict on that ground at trial.
1
We сonclude that the failure to move for a directed verdict bars the party from contending on appeal that she is entitled to a judgment as a
1. These cases stem from a road rage incident involving a truck driver, Ricky Barron, supplied to the Keystone Freight Corporation (Keystone) by the Aldworth Company (Aldworth). When Sаndra and Andrew England were driving their car in Newnan, Georgia, a Keystone truck operated by Barron attempted to merge into their lane. An angry exchange ensued, which resulted in Barron following the Englands to a gas station and in Barrоn punching Ms. England in the face. After the Englands filed suit against Keystone, Aldworth, and Barron, Aldworth and Barron defaulted. A trial was held on Keystone’s liability and on damages with regard to all three defendants. The jury found that Barron was acting within the scope of his employment with Keystone at the time of the altercation, and found Aldworth and Keystone jointly and severally liable for $750,000 in compensatory damages. In a bifurcated proceeding, the jury then considered the appropriate amount of punitive damages. Because the jury found that Aldworth and Keystone acted with the specific intent to cause harm, the punitive damages award was not limited by the statutory $250,000 cap. 2 The jury assessed рunitive damages of $1,000,000 each against Keystone and Aldworth.
On appeal, the Court of Appeals affirmed. It ruled, in relevant part, that Aldworth’s and Keystone’s failure to move for directed verdicts on certain issues precludеd them from contending that the trial court erred in denying their motions for directed verdict and for new trial because the evidence was insufficient to support the verdict as to those issues. 3 We subsequently granted certiorari to consider this ruling.
2. Relying on OCGA § 9-11-50, which sets forth rules governing motions for directed verdict, 4 numerous cases hold that a party is barred from contending on appeal that she was entitled to a directed verdict based on the sufficiency of the evidence to support a claim if the party failed to move for a directed verdict as to that claim at trial. 5
First, if OCGA § 5-6-36 (a) is interpreted to mean that a party who did not move for a directed verdict at trial is entitled to a judgment as a matter of law if she prevails on her claim on appeal that the evidence is insufficient to support the verdict, then it will conflict with the cases discussed above, based on OCGA § 9-11-50, that hold that a party must move for a directed verdict in order for a party to contend on appeal that he was entitlеd to a judgment as a matter of law. 7
Moreover, OCGA § 5-6-36 (b) supports the position that a motion for a directed verdict is a prerequisite for contending on appeal that a party is entitled to a judgment as a matter of lаw based on the insufficiency of the evidence. That Code section provides that a judgment notwithstanding the verdict (“j.n.o.v.”) is not a “condition precedent to review upon appeal of an order or ruling of the trial court
In addition, that proposition is consistent with this Court’s decision in Ross v. Lowery. 10 In Ross, Ross failed to move for a directed verdict on his claim that he had acquired title to certain land by adverse possession. Althоugh this Court’s review of the evidence showed that the evidence demanded a finding in Ross’s favor, we held that, because Ross did not move for a directed verdict on his claim of title, we could not hold “as a matter of law that Ross established prescriptive title.” 11 We held, however, that Ross was entitled to a new trial on this claim. 12
Further, some federal courts have held that, if a party fails to move for a judgment as a matter of law, 13 the appellate сourt may not grant that party a judgment as a matter of law, but may nevertheless grant the party a new trial if it concludes on review that there is no evidence supporting the verdict. 14 This standard of review is consistent with the standard applied by this Court in determining whether a trial court erred in denying a motion for new trial. 15
Finally, fairness dictates that a party who has failed to move for a direсted verdict at trial should not be able to obtain a judgment as a matter of law on appeal based on the contention the evidence is insufficient to support the verdict. For example, if a defendant moves for a directed verdict at trial, the trial court may, in its discretion, permit the plaintiff to reopen her case, 16 thus giving the plaintiff an opportunity to correct any deficiencies in her evidence, and possibly preventing thе defendant from obtaining a judgment as a matter of law. If the defendant can wait until appeal to point out the deficiencies in the plaintiffs evidence and obtain a judgment as a matter of law based on those defiсiencies, the plaintiff has forever lost any chance to correct those deficiencies. 17 On the other hand, if the defendant can only obtain a new trial on appeal, the plaintiff will still have an opportunity tо address the problems with her case on remand.
Consistent with the foregoing authority, we hold that the Court of Appeals properly ruled that Aldworth and Keystone were barred from contending on appeal that they are еntitled to a directed verdict in their favor, but that the Court erred by refusing to review the sufficiency of the evidence under the “any evidence” standard of review 18 to determine if Aldworth and Keystone were entitled to a new trial on certain claims. 19
Accordingly, we remand the case to the Court of Appeals for proceedings consistent with this opinion.
Judgment affirmed in part and reversed in part and case remanded with direction.
Notes
Aldworth Co. v.
England,
See OCGA § 51-12-5.1 (f).
Although the Court of Appeals held that Aldworth failed to raise an issue regarding the jury’s finding of a specific intent to cause harm in its motion for new trial, our review of the transcript of the hearing on the motion for new trial shows that Aldworth did raise this issue.
OCGA § 9-11-50 (a) providеs, among other things, that a motion for directed verdict must state “the specific grounds” for the motion, and that “[i]f there is no conflict in the evidence as to any material issue and the evidence introduced, with all reasonable deductions therefrom, shall demand a particular verdict, such verdict shall be directed.” OCGA§ 9-11-50 (b) provides that only a party who has filed a motion for directed verdict has the right to contest an adverse verdict by filing a motion for judgmеnt notwithstanding the verdict.
See, e.g.,
Johnson v. Hensel Phelps Constr. Co.,
Jeffries v. State,
See cases cited at footnote 5, supra.
OCGA § 5-6-36 (b). Accord
Preferred Risk Ins. Co. v. Boykin,
Gregory, Georgia Civil Practice § 6-17, p. 520 (2d ed. 1997).
Id. at 308.
Id. Accord
Professional Consulting Sucs, of Ga. v. Ibrahim,
A motion for judgment as a matter of law is the equivalent of this State’s motion for a directed verdict under OCGA § 9-11-50 (a).
See 9A Wright & Miller, Federal Practice and Procedure § 2539, p. 362;
Della Grotta v. Rhode Island,
781 F2d 343, 350-351 (1st Cir. 1986);
Simon v. Navon,
“In reviewing a trial court’s denial оf a motion for new trial on the ground there was no evidence to support the verdict, this Court examines the record to determine whether there is
See Able-Craft, Inc. v. Bradshaw,
See 9 Moore’s Federal Practice § 50.02[3], p. 50-14 (3d ed.) (motions for directed verdict “provide notice to the trial cоurt and to opposing counsel of any deficiencies in the opposing party’s case before it reaches the jury, while deficiencies still may be corrected.”).
Maddox,
To the extent the Court of Appeals’s decision can be read to hold that Keystone’s failure to challenge the form of the verdict waived its right to contest the sufficiency of the evidence on appeal by challenging the denial of its motion for new trial,
Aldworth,