Pierce v. Lopez, No. 2

CourtCourt of Appeals of Arizona
Writing for the CourtHATHAWAY; KRUCKER; HOWARD
Citation16 Ariz.App. 54,490 P.2d 1182
Decision Date24 November 1971
Docket NumberNo. 2,CA-CIV
PartiesViolet PIERCE and Ralph Pierce, wife and husband, and Silas C. Valentine, dba Valentine's Bar, Appellants, v. Genaro LOPEZ, Appellee. 956.

Page 1182

490 P.2d 1182
16 Ariz.App. 54
Violet PIERCE and Ralph Pierce, wife and husband, and Silas C. Valentine, dba Valentine's Bar, Appellants,
v.
Genaro LOPEZ, Appellee.
No. 2 CA-CIV 956.
Court of Appeals of Arizona, Division 2.
Nov. 24, 1971.
Rehearing Denied Dec. 23, 1971.
Review Denied Jan. 18, 1972.

Johnson & Tucker, P.A. by Kenneth L. Tucker, Phoenix, for appellants.

William T. Healy, P.C. by William T. Healy, Tucson, for appellee.

HATHAWAY, Judge.

Plaintiff brought suit in superior court against one Robert Bowan and appellants Pierce and Valentine for injuries sustained from a blow to the head by a pool cue wielded by Bowan. The incident occurred [16 Ariz.App. 55]

Page 1183

on February 14, 1969, while plaintiff was patronizing Valentine's Bar in Dudleyville, Arizona owned by defendant Valentine where defendant Pierce was tending bar. On trial the jury returned a $25,000 verdict in favor of plaintiff against all defendants. Appellants Pierce and Valentine appeal from the judgment and from the trial court's order denying their motion for judgment notwithstanding the verdict or in the alternative a new trial. Defendant Bowan is not a party to the appeal. Appellants ask this court to re-examine the sufficiency of the evidence contending there is no showing they breached a legal duty owed to the plaintiff. They further claim plaintiff's counsel argued matters not in evidence prejudicing their case and requiring a new trial. Plaintiff, in response maintains that appellants' motion for directed verdict was a motion to 'dismiss,' not timely, and not renewed at the close of all the evidence pursuant to Ariz.R.Civ.P. 50(b), as amended, 16 A.R.S.

During examination of plaintiff's final witness a discussion was held in chambers. At that time appellants' counsel moved for directed verdict. Although first referring to the motion as one for 'dismissal' the transcript reveals in the same paragraph counsel's statement: 'And we move for a directed verdict on that ground.' After further discussion regarding the motion the court commented:

'Let me say this: I am very tempted to grant the motion. I think possibly it should be granted, but I will reserve a ruling on it at this time. Let's go ahead and get the testimony completed.'

We believe that at this point the record clearly shows a motion for directed verdict was made. The court was fully aware of the nature of the motion and reserved ruling thereon.

Examination of plaintiff's final witness was completed and plaintiff rested. All counsel then approached the bench to make a record. Counsel for defendant Bowan moved to dismiss which was denied. The following exchange then took place between appellants' counsel and the court:

'MR. TUCKER: The record is clear though, my motion has been made as if made now. If it isn't I can make it later with the same force and effect.

THE COURT: Yes.'

From the portions of the record we have set forth above there is no doubt that appellants made a sufficient motion for directed verdict at the conclusion of plaintiff's evidence.

Following the latter exchange above, counsel for defendant Bowan called three witnesses. The first witness had not testified before. Her testimony was substantially that she 'wasn't paying attention to anybody,' that she 'was busy on the telephone at the time when all this happened,' and 'didn't get a chance to see nothing' or 'hear anything.' The other two witnesses were defendant Bowan and his wife both of whom had previously testified.

Counsel for appellants proceeded with no evidence on their behalf, albeit he did cross-examine. Appellants did not renew their motion for directed verdict at the conclusion of the evidence offered by defendant Bowan.

Ariz.R.Civ.P. 50(b), as amended provides in part:

'Whenever a motion for a directed verdict 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.'

The general rule has emerged from the language of Rule 50(b) that a verdict cannot be granted to a party who made a motion for a directed verdict at the close of the evidence offered by his opponent and then introduced evidence himself without renewing the motion for directed verdict at the close of all the evidence. By failing to renew the motion he is deemed to have waived the objection to the sufficiency of the evidence. O'Malley v. Cover, 221 F.2d [16 Ariz.App. 56]

Page 1184

156 (8th Cir. 1955); Rodriguez v. Williams, 107 Ariz. 458, 489 P.2d 268 (1971); LaBonne v. First Nat. Bank of Arizona, 75 Ariz. 184, 254 P.2d 435 (1953); Glowacki v. A. J. Bayless Markets, 76 Ariz. 295, 263 P.2d 799 (1953); Loya v. Fong, 1 Ariz.App. 482, 404 P.2d 826 (1965); Annot., 69 A.L.R.2d 449, 482 (1960); 5A J. Moore, Federal Practice 50.05(1), at 2341 (2d ed. 1971); 46 Am.Jur.2d Judgments § 142 (1969); 2B W. Barron & A. Holtzoff, Federal Practice and Procedure § 1074, at 372 (C. Wright ed. 1961). Appellants concede the correctness of the rule stated but disclaim its applicability since they themselves introduced no evidence 1 and the evidence introduced after their motion pertained to an alleged intentional tort committed by defendant Bowan, not bearing on the issue of appellants' alleged negligence. Thus, they maintain their motion for directed verdict was properly made at the close of all the evidence 'produced against them' by their opponents and that a renewal of their motion at the close of Bowan's defense was unnecessary. If this additional testimony had nothing to do with the questions raised by appellants' motion, then we would agree that as a practical matter, requiring them to renew their motion at the end of such testimony would seem to be an unnecessary technicality and not in keeping with the spirit of the rules. United States v. 353 Cases Mountain Valley Mineral Water, 247 F.2d 473 (8th Cir. 1957); Ariz.R.Civ.P. 1. We have examined the record, however, and cannot unqualifiedly state that none of the testimony offered in defense of Bowan went to the defense of appellants Valentine and Pierce.

We next consider the effect of the trial court's express reservation of ruling upon the motion for directed verdict made at the conclusion of plaintiff's case. Plaintiff relies on 6551 Collins Avenue Corp. v. Millen, 104 So.2d 337 (Fla.1958) in contending appellants have waived their right for post-trial judgment. There the defendant moved for directed verdict at the conclusions of plaintiff's case. The trial court reserved ruling and defendant thereupon put on its case. The Florida Supreme Court precluded review of the sufficiency of the evidence as the record did not indicate that the trial judge expressly reserved ruling until the close of all the evidence or after the verdict. Appellants again reply that in the instant case they did not introduce evidence and therefore are not within the Florida court's holding. We see some merit in both contentions but find neither to be controlling. The United States Court of Appeals, First Circuit, has provided useful guidelines in this area in a trilogy of cases. 2 Considering contentions similar to those of appellants in the instant case it held that there was no waiver of the right to test the sufficiency of the evidence. Bayamon Thom McAn, Inc. v. Miranda, 409 F.2d 968 (1st Cir. 1969); Beaumont v. Morgan, 427 F.2d 667 (1st Cir. 1970), cert den. 400 U.S. 882, 91 S.Ct. 120, 27 L.Ed.2d 121 (1970); contra, Gillentine v. McKeand, 426 F.2d 717 (1st Cir. 1970). We note that in those cases, however, the court not only relied upon the fact that the evidence following the motion at the conclusion of the plaintiff's case was inconsequential or pertained to other issues, but that the trial judge may have reasonably led counsel to believe that a later motion at the close of all the evidence was unnecessary. We have closely examined the record in this case and do not find that appellants' counsel was in any manner misled by the court. Thus, we hold that the appellants having made no motion for directed verdict at the close of all the evidence and there being no excuse for not having made such motion, are precluded from now by motion for judgment n.o.v., urging that a directed verdict be granted in [16 Ariz.App. 57]

Page 1185

their favor on the ground of insufficient evidence.

A motion for new trial, however, is procedurally unlike the motion for judgment n.o.v. in that no prior foundational motion is required. See Ariz.R.Civ.P. 59. Our rules do not require such a prerequisite nor is there a valid reason for it as presenting the question of sufficiency of evidence on motion for new trial adequately affords the trial court the opportunity to rule before appeal is filed. Singleton v. Valianos, 84 Ariz. 51, 323 P.2d 697 (1958). See also, Smith v. Moroney, 79 Ariz. 35, 282 P.2d 470 (1955). The grant or denial of the motion for new trial is within the sound discretion of the trial court and we will not upset its ruling absent a clear showing of abuse of that discretion. Rodriguez v. Williams, supra; Heaton v. Waters, 8 Ariz.App. 256, 445 P.2d 458 (1968); Verdugo v. Po Shing Gee, 4 Ariz.App. 113, 417 P.2d 747 (1966); Smith v. Moroney, supra. We note, however, that the appellate courts are generally more...

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16 practice notes
  • Acuna v. Kroack, No. 2 CA-CV 2005-0049.
    • United States
    • Court of Appeals of Arizona
    • January 27, 2006
    ...P.2d 551, 551 (1933); see also Min-A-Con Equip. Co. v. T.M.K. Constr. Co., 102 Ariz. 24, 25, 424 P.2d 152, 153 (1967); Pierce v. Lopez, 16 Ariz.App. 54, 59, 490 P.2d 1182, 1187 (1971). Absent any substantial evidence that Hampton either knew or should have known of Kroack's alleged incompet......
  • Acuna v. Kroack, No. 2 CA-CV 2005-0049.
    • United States
    • Supreme Court of Arizona
    • October 6, 2005
    ...P.2d 551, 551 (1933); see also Min-A-Con Equip. Co. v. T.M.K. Constr. Co., 102 Ariz. 24, 25, 424 P.2d 152, 153 (1967); Pierce v. Lopez, 16 Ariz.App. 54, 59, 490 P.2d 1182, 1187 (1971). Absent any substantial evidence that Hampton either knew or should have known of Kroack's alleged incompet......
  • Lewis v. Wolf, No. 2
    • United States
    • Court of Appeals of Arizona
    • March 30, 1979
    ...tort concepts of the State of Arizona. We wish to extend the criticism contained in the author's concurring opinion in Pierce v. Lopez, 16 Ariz.App. 54, 490 P.2d 1182 Before stating the common law rule that is followed in Arizona and the reason for the rule, it would be well to remember the......
  • Ontiveros v. Borak, No. 16486
    • United States
    • Supreme Court of Arizona
    • July 5, 1983
    ...Ariz. 235, 236, 575 P.2d 1261, 1262 (App.1978); Thompson v. Bryson, 19 Ariz.App. 134, 138, 505 P.2d 572, 576 (1973); Pierce v. Lopez, 16 Ariz.App. 54, 57, 490 P.2d 1182, 1185 (1971); and Vallentine v. Azar, 8 Ariz.App. 247, 249, 445 P.2d 449, 451 (1968). We conclude, therefore, that the rul......
  • Request a trial to view additional results
16 cases
  • Acuna v. Kroack, No. 2 CA-CV 2005-0049.
    • United States
    • Court of Appeals of Arizona
    • January 27, 2006
    ...P.2d 551, 551 (1933); see also Min-A-Con Equip. Co. v. T.M.K. Constr. Co., 102 Ariz. 24, 25, 424 P.2d 152, 153 (1967); Pierce v. Lopez, 16 Ariz.App. 54, 59, 490 P.2d 1182, 1187 (1971). Absent any substantial evidence that Hampton either knew or should have known of Kroack's alleged incompet......
  • Acuna v. Kroack, No. 2 CA-CV 2005-0049.
    • United States
    • Supreme Court of Arizona
    • October 6, 2005
    ...P.2d 551, 551 (1933); see also Min-A-Con Equip. Co. v. T.M.K. Constr. Co., 102 Ariz. 24, 25, 424 P.2d 152, 153 (1967); Pierce v. Lopez, 16 Ariz.App. 54, 59, 490 P.2d 1182, 1187 (1971). Absent any substantial evidence that Hampton either knew or should have known of Kroack's alleged incompet......
  • Lewis v. Wolf, No. 2
    • United States
    • Court of Appeals of Arizona
    • March 30, 1979
    ...tort concepts of the State of Arizona. We wish to extend the criticism contained in the author's concurring opinion in Pierce v. Lopez, 16 Ariz.App. 54, 490 P.2d 1182 Before stating the common law rule that is followed in Arizona and the reason for the rule, it would be well to remember the......
  • Ontiveros v. Borak, No. 16486
    • United States
    • Supreme Court of Arizona
    • July 5, 1983
    ...Ariz. 235, 236, 575 P.2d 1261, 1262 (App.1978); Thompson v. Bryson, 19 Ariz.App. 134, 138, 505 P.2d 572, 576 (1973); Pierce v. Lopez, 16 Ariz.App. 54, 57, 490 P.2d 1182, 1185 (1971); and Vallentine v. Azar, 8 Ariz.App. 247, 249, 445 P.2d 449, 451 (1968). We conclude, therefore, that the rul......
  • Request a trial to view additional results

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