News Post

By William E. Shreve, Jr., Phelps Dunbar, LLP

(Note: An earlier version of this article was published in the October 1997 edition of the Alabama Defense Lawyers Association Journal. The author has revised, updated, and expanded the article for publication in The Alabama Lawyer.)

Issues must be raised in the trial court to be considered on appeal. In cases tried to a jury, parties must present certain issues in motions for judgment as a matter of law or for new trial, and under some circumstances in non-jury cases, parties must raise issues in a motion for new trial or other post-judgment motion, to preserve them for appeal.

Motions In Cases Tried To A Jury

Judgment As A Matter Of Law Under Rule 50

Ala. R. Civ. P. 50 provides for trial and post-trial motions for judgment as a matter of law (“JML”). Rule 50(a)(1) states that “[i]f 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 [JML] 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.” Rule 50(b) provides that “[w]henever a motion for [JML] made at the close of all the evidence is denied or for any reason is not granted,” the motion “may be renewed by service and filing not later than thirty (30) days after entry of judgment.”

Before an amendment to Rule 50 in 1995, the motion under Rule 50(a) was known as one for “directed verdict,” and the post-trial motion under Rule 50(b) was known as one for “judgment notwithstanding the verdict” or “judgment non obstante veredicto” (“JNOV”). The pre-amendment case law “remain[s] valid except for the references to obsolete terminology,” and thus applies to motions for JML.^[1]

Function of, and standard for granting, motion for JML

A defendant’s motion for JML challenges the sufficiency of the evidence to create a question of fact for the jury on the plaintiff’s claims. A plaintiff’s motion for JML does the same with respect to the defendant’s affirmative defenses.[2] As Rule 50(a)(1) states, the movant is entitled to JML if there is “no legally sufficient evidentiary basis for a reasonable jury to find for” the nonmovant on a claim or affirmative defense.

Ala. Code § 12-21-12 provides that “substantial evidence shall be required to submit an issue of fact to the trier of the facts,” and defines “substantial evidence” as “evidence of such quality and weight that reasonable and fair-minded persons in the exercise of impartial judgment might reach different conclusions as to the existence of the fact sought to be proven.”^[3] Thus, to avoid JML, the “nonmovant must present ‘substantial evidence’ supporting each element of his cause of action or [affirmative] defense.”[4] The court views the evidence in the light most favorable to the nonmovant and makes an objective determination whether the nonmovant has presented substantial evidence, regardless of countervailing evidence.[5]

A movant can also obtain JML on the basis that substantial undisputed evidence establishes the movant’s own affirmative defense or claim for relief.[6]

Two-step procedure for preserving entitlement to JML

To preserve a right to JML, parties must comply with a “two-step procedure.”[7] First, a party must move for JML under Rule 50(a) at the close of all the evidence (or at least “before submission of the case to the jury”[8]) on the ground that there is insufficient evidence to support the nonmovant’s claim or affirmative defense.[9] Second, if the jury renders a verdict against the party who moved for JML, that party must file a renewed motion under Rule 50(b) within 30 days of judgment, asserting the same grounds of evidentiary insufficiency.[10] The renewed motion gives the trial court a “second look at the ‘insufficiency’ ground as a prerequisite for appellate review[.]”[11]

Both motions are required.[12] When no motion is filed at the close of all the evidence, there is no motion that can be renewed, and evidentiary insufficiency cannot be raised in a post-judgment motion for JML.^[13] When a motion is filed at the close of all the evidence but is not renewed, the trial court has no post-judgment opportunity to “revisit” its earlier denial of JML, as is necessary to preserve the sufficiency-of-evidence issue.^[14]

Parties must also comply with the two-step procedure to preserve a right to JML on the ground that substantial, undisputed evidence establishes a party’s own affirmative defense or claim for relief.[15]

Contents of motion for JML

Rule 50(a)(2) requires that a motion for JML “specify the judgment sought and the law and the facts on which the moving party is entitled to judgment.” The Alabama Supreme Court has stated that “appellate review is preserved by a Rule 50(a) motion ‘alleg[ing] a lack of evidence’ as to each of the plaintiff’s claims.”[16] The court has also stated that the motion should identify “the count which is not supported by evidence and detail[] with specificity the grounds upon which the particular count is not supported by the evidence.”[17]

Motions that lack specificity – such as one merely stating that “the evidence did not establish liability” – are known as “general” motions and “in some instances, [are] not … sufficient to invoke appellate review.”[18] A “general” motion “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.”[19] For example, a defendant’s motion asserting that the plaintiff “failed to carry [his] burden of proof with the evidence submitted,” was held inadequate “to preserve for appeal the argument that [the plaintiff] was contributorily negligent as a matter of law.”[20] Specificity as to parties is also important – a defendant’s motion averring that two plaintiffs “failed to introduce substantial evidence to prove … their claim,” was found inadequate to preserve an argument that each plaintiff had a separate claim and that one of them “failed to prove its [claim].”^[21]

Because a post-judgment motion under Rule 50(b) “is really just a renewal of” the earlier motion under Rule 50(a),^[22] a party cannot file a general motion at the close of all the evidence and expect to file a more specific motion after judgment. A post-judgment motion, “based on the ‘insufficiency of the evidence,’ is improper” to the extent the party did not move for JML “on the same ground at the close of all the evidence.”^[23] Subject to an exception relating to punitive damages (discussed hereinafter), a court cannot consider new grounds of evidentiary insufficiency in a post-judgment motion for JML.^[24]

It is therefore paramount that a party’s motion for JML at the close of all the evidence be specific and include all possible grounds of evidentiary insufficiency. To be thorough, defendants’ motions should assert that there is insufficient evidence to support each count, each claim, each element of each claim, each material factual allegation, and each item of damages as to which the defendant contends the plaintiff lacks substantial evidence.[25] Defendants’ motions should also aver that the evidence establishes each affirmative defense that the defendant contends is supported by substantial, undisputed evidence.[26] If there is more than one plaintiff, each with his or her own claims, the defendant’s motion should assert all grounds as to each plaintiff separately and severally.[27] The motion should also cite supporting legal authority.[28] A plaintiff’s motion should be just as specific in asserting that there is insufficient evidence to support affirmative defenses and that undisputed evidence establishes the plaintiff’s claims.

Rule 50(b) states that “[a] motion for a new trial under Rule 59 may be joined with a renewal of the motion for [JML], or a new trial may be requested in the alternative.” Hence, a party filing a renewed motion should consider whether such joinder or alternative request is appropriate.

Good-count/bad-count rule

When a trial court submits several claims to the jury and the jury returns a general verdict for the plaintiff, it is usually “impossible to know on which of the multiple theories the jury based its verdict.”[29] If the court submits “good” claims (i.e., claims supported by substantial evidence) and “bad” claims (claims that are not supported by substantial evidence) to the jury, the “good-count/bad-count rule” applies. Under this rule, whether a judgment based on a general verdict for the plaintiff will withstand a defendant’s renewed motion for JML depends on the specificity of the defendant’s motion at the close of all the evidence and of the renewed motion.

If the defendant, at the close of all the evidence, files a “general” motion for JML going to the case as a whole, rather than a motion specifically challenging each claim, separately and individually, that the defendant contends is not supported by substantial evidence, the trial court commits no error by denying the motion if any claim is “good.”^[30] The defendant’s renewed motion must also be denied if any claim was “good.”^[31] The court “will presume that the [general] verdict was returned on [a] ‘good count.’”[32]

If, however, the defendant, at the close of all the evidence, files a motion for JML that specifically challenges each claim, separately and individually, that the defendant contends is not supported by substantial evidence, the trial court errs in denying the motion as to any “bad” claims.^[33] If the defendant files a renewed motion for JML, again specifically contesting evidentiary sufficiency as to each claim, the court will not presume that the general verdict was based on a “good” claim,^[34] but instead that the “‘bad counts’ may have infected the verdict.”[35] In this situation, the defendant is entitled to JML on the “bad” claims and to a new trial on any “good” claims.^[36]

The good-count/bad-count rule applies only when the jury renders a general verdict. If the jury instead renders its decision upon a special verdict form or provides answers to jury interrogatories such that it can be determined what claim or claims formed the basis for the verdict, the judgment on the verdict will stand if at least one of those claims was “good.”[37]

When to file the motion for JML

As stated above, a party must move for JML at the close of all the evidence (or at least “before submission of the case to the jury”^[38]) and renew the motion within 30 days of judgment.

Rule 50(a)(1) allows the filing of a motion for JML after the nonmovant “has been fully heard on an issue[.]” A plaintiff “has been fully heard” on his claims at the close of the plaintiff’s case. Accordingly, in addition to moving for JML at the close of all the evidence, it is customary and advisable for a defendant to also move for JML at the close of the plaintiff’s case. To be clear, though, a motion at that time is no substitute for one at the close of all the evidence; to preserve the issue of evidentiary insufficiency, the defendant must again move for JML at the close of all the evidence.[39]

When a party who moved for JML at the close of all the evidence obtains a jury verdict in his favor, but the trial court grants the opposing party’s motion for new trial, the order granting the new trial is a new “judgment.”^[40] As a result, the party who obtained the favorable verdict has 30 days from entry of the new-trial order to file a renewed motion for JML.[41]

Rule 50(b) states that “[i]f no verdict was returned the court may, in disposing of the renewed motion, direct the entry of [JML]” (emphasis added). The rule thus permits filing a renewed motion after a mistrial.[42] Because the 30-day period under Rule 50(b) does not begin until the “entry of judgment,” and because a mistrial does not result in a “judgment,”^[43] the rule sets no time limit for filing a renewed motion after a mistrial.[44] Regardless, it is best to file a renewed motion within 30 days of a mistrial.

Exceptions to two-step procedure

Ala. Code § 6-11-20(a) allows recovery of punitive damages upon proof “by clear and convincing evidence that the defendant consciously or deliberately engaged in oppression, fraud, wantonness, or malice[.]” 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,” and that the defendants “properly raise[d] the issue of whether the award of punitive damages was supported by clear and convincing evidence, in their post-judgment motion” for JML, despite not raising this issue at the close of all the evidence.[45]

Barnes v. Dale, 530 So. 2d 770 (Ala. 1988) created an exception for “pure questions of law.” The defendants moved for JML, based on qualified immunity, at the close of the plaintiff’s case but not at the close of all the evidence.[46] The supreme court, noting 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]” and that this defense presented a “pure question of law,” held that the issue was preserved.[47] The court stated that if a motion at the close of the plaintiff’s case “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,” and that there is also “no requirement for a party to renew his objection by way of a post-judgment [JML] motion on a pure question of law[.]”[48]

Notwithstanding Sears and Barnes, it is best for defendants to move for JML on punitive damages and on questions of law at the close of the plaintiff’s case, at the close of all the evidence, and after judgment, to avoid any argument as to preservation and so that the defendant might obtain JML at any of those times.

Finally, in K.S. v. Carr, 618 So. 2d 707 (Ala. 1993) and Williams v. BIC Corp., 771 So. 2d 441 (Ala. 2000), defendants moved for JML at the close of all the evidence, then obtained jury verdicts in their favor. Because they had already prevailed, the K.S. defendants filed no renewed motion, nor, apparently, did the Williams defendant (there is no mention of its doing so). The plaintiffs appealed. K.S. held that the defendants could cross-appeal the denial of their motion for JML without having filed a renewed motion.^[49] Williams held that even with no cross-appeal (and, presumably, no renewed motion), the defendant could argue for affirmance on the ground that its motion for JML should have been granted.^[50]

New trial under Rule 59

Ala. R. Civ. P. 59(a)(1) states that in cases tried to a jury, 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.” Such reasons include those listed in Ala. Code § 12-13-11,[51] as well as “common-law grounds not listed in that statute.”[52]

Necessity of motion for new trial to preserve issues

When a party raises an issue in the trial court – such as by objecting to evidence or to jury instructions – and the court makes a ruling, the issue is preserved, and no motion for new trial is necessary to preserve it.[53] Ala. R. App. P. 4(a)(3) states 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 52(b) or Rule 59 of the ARCP” (emphasis added).

The Committee Comments to Appellate Rule 4 caution, though, that Rule 4(a)(3) 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 posttrial motion must be so asserted.” For example, the issue that a jury’s verdict is against the weight of the evidence or that a verdict awards excessive or inadequate damages obviously cannot be raised until after the trial is over and the verdict is rendered; therefore, to preserve the issue, a party must assert it in a motion for new trial so that the trial court has an opportunity to rule on it.[54]

Insufficiency of the evidence to support the verdict can also be raised in a motion for new trial.[55] The disadvantages to preserving this issue solely by motion for new trial rather by motions for JML are that (1) if the appellate court finds that the evidence was insufficient, the court can only order a new trial and not JML, and (2) the standard of review of an order denying a motion for new trial on the ground that the evidence was insufficient (i.e., whether the evidence, “viewed in a light most favorable to the nonmovant, shows that the verdict was ‘plainly and palpably wrong and unjust’”^[56]) is less favorable to an appellant than the standard of review of an order denying JML (de novo).

Contents of motion for new trial

Rule 59(a) contains no requirements as to the contents of a motion for new trial, but Rule 7(b)(1) requires that all motions “state with particularity the grounds therefor,” and cases say that a motion for new trial “must sufficiently specify the precise error that is alleged to have occurred.”[57] A mere averment “that the verdict is contrary to the evidence” is “insufficient to [preserve] the issue of [excessive] damages,”[58] and assertions that a verdict was “contrary to the law in the case” and “contrary to the facts of this case” have been held too general to preserve any error.[59]

When to file the motion for new trial

Rule 59(b) requires that a motion for new trial be filed “not later than thirty (30) days after the entry of the judgment.” Also, when a party obtains a verdict in his favor, but the trial court grants the opposing party’s renewed motion for JML, Rule 50(c)(2) gives the verdict-winner 30 days from entry of the JML to move for a new trial.

Motions in Non-Jury Cases

Preserving issues of evidentiary sufficiency or weight

Ala. R. Civ. P. 50 is not applicable in non-jury cases, and the scheme for preserving sufficiency-of-evidence issues is different in non-jury cases than in cases tried to a jury.

Preservation when the trial court makes findings of fact

By virtue of Ala. R. Civ. P. 52(b), a trial court’s making express findings of fact automatically preserves for appeal whether the evidence was sufficient to support those findings.[60] Rule 52(b) provides that “[w]hen findings of fact are made in actions tried by the court without a jury,” the “question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings” or “has made a motion to amend them or a motion for judgment or a motion for a new trial.” A court may make findings of fact in a written order or through oral, on-the-record statements.^[61]

An important caveat, however, is that in order for findings of fact to preserve the sufficiency-of-evidence question with respect to a particular claim, affirmative defense, or other issue, the trial court must make findings of fact pertaining to that claim, defense, or issue.^[62] In other words, findings as to one claim, defense, or issue do not preserve the question of evidentiary sufficiency as to a different claim, defense, or issue.[63]

Preservation when the trial court does not make findings of fact

If the trial court makes no findings of fact, or none on a particular claim, affirmative defense, or issue, then a motion is necessary to preserve the question of evidentiary sufficiency or weight. In New Properties, L.L.C. v. Stewart, 905 So. 2d 797 (Ala. 2004), the court held that “in a nonjury case in which the trial court makes no specific findings of fact,” a party “must move for a new trial or otherwise properly raise before the trial court the question relating to the sufficiency or weight of the evidence in order to preserve that question for appellate review.”^[64] The motion must specifically address particular issues of sufficiency or weight.^[65] Failure to file a motion, or filing one that fails to raise a particular issue, results in waiver.^[66]

The rule stated in New Properties also applies when a party wishes to challenge the trial court’s denial of that party’s own claim, affirmative defense, or requested relief.^[67] If the court “denies a claim without entering any findings of facts regarding that claim,” the party asserting the claim “must move for a new trial or otherwise properly raise before the trial court the issue that the evidence was sufficient to support the denied claim.”^[68]

Justice Harwood’s special concurrence in New Properties suggested that a party can “otherwise properly raise” and preserve questions of evidentiary sufficiency or weight by moving for judgment on partial findings under Rule 52(c) during trial,^[69] but a later case indicates otherwise.^[70] There is also authority that a party can “otherwise properly raise” and preserve such questions in a motion to alter, amend, or vacate under Rule 59(e),^[71] in a post-trial brief,^[72] or at a hearing on a post-judgment motion.^[73] Nonetheless, because New Properties expressly approves presenting the sufficiency-or-weight issue in a motion for new trial, it is best to file one. Likewise, when in doubt whether a trial court made findings of fact on a particular issue, or whether an issue is or is not one of evidentiary sufficiency or weight, the safest course is to raise it in a motion for new trial.

Preserving other issues in post-judgment motions

Rule 59(a) states that on a motion for new trial in a non-jury case, the court “may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.” Rule 59(e) provides for the filing of motions to alter, amend, or vacate within 30 days of judgment. Rule 52(b) states that upon motion “filed not later than thirty (30) days after judgment or entry of findings and conclusions,” the court “may amend its findings or make additional findings or may amend the judgment accordingly,” and that a motion under this rule may be joined with one for new trial.

As previously mentioned, Ala. R. App. P. 4(a)(3) generally dispenses with the need for a motion under Rule 59 or 52(b) to preserve “[a]ny error or ground of reversal or modification of a judgment or order which [has already been] asserted in the trial court” (emphasis added). However, “matters which can only be raised by post-trial motion must be so asserted.”^[74] Such matters often concern the relief the trial court granted or denied in its judgment. Alabama cases have found that parties who did not file post-judgment motions waived error in a combined award of compensatory and punitive damages,^[75] in a finding that prejudgment interest ceased to accrue after a certain date,[76] in an award of attorney’s fees,[77] and in the method by which a trial court decided an amount of child support.[78] Also, if “the trial court overlooked, and therefore failed to consider, some aspect of the evidence in a nonjury case,” a party “must bring that error to the attention of the trial court by way of a postjudgment motion.”^[79]

When unsure whether a post-judgment motion is needed to preserve an issue in a non-jury case, a party should, to be on the safe side, raise the issue in a motion under Rule 59(a), 59(e), and/or 52(b).

[1] 2 Gregory C. Cook, Alabama Rules of Civil Procedure Annotated § 50.1 (5th ed. 2018).

[2] Eastman v. R. Warehousing & Port Servs., Inc., 141 So. 3d 77, 82-85 (Ala. 2013).

[3] § 12-21-12(a) & (d). Section 12-21-12(c) makes an exception “[w]ith respect to any issue of fact for which a higher standard of proof is required, whether by statute, or by rule or decision of the courts of the state,” in which case “substantial evidence shall not be sufficient to carry the burden of proof” and “such higher standard of proof shall be required with respect to such issue of fact.”

[4] Carter v. Henderson, 598 So. 2d 1350, 1353 (Ala. 1992).

[5] Teague v. Adams, 638 So. 2d 836, 837 (Ala. 1994); Ex parte Helms, 873 So. 2d 1139, 1144 (Ala. 2003).

[6] Helms, 873 So. 2d at 1143.

[7] Barnes v. Dale, 530 So. 2d 770, 776-77 (Ala. 1988).

[8] Rule 50(a)(2); see Paint Rock Turf, LLC v. First Jackson Bank, 169 So. 3d 990, 995-96 (Ala. 2014) (plurality op.).

[9] Cook’s Pest Control, Inc. v. Rebar, 28 So. 3d 716, 722-23 (Ala. 2009); Barnes, 530 So. 2d at 776; Great Atl. & Pac. Tea Co. v. Sealy, 374 So. 2d 877, 881-82 (Ala. 1979).

[10] Paint Rock, 169 So. 3d at 996; Cook’s Pest Control, 28 So. 3d at 722; Bains v. Jameson, 507 So. 2d 504, 505 (Ala. 1987); Great Atl., 374 So. 2d at 880-82.

[11] Barnes, 530 So. 2d at 776-77.

[12] Id.; Great Atl., 374 So. 2d at 880-82.

[13] Great Atl., 374 So. 2d at 880-82; A.T. Stephens Enters., Inc. v. Johns, 757 So. 2d 416, 419 (Ala. 2000); Powell v. Vanzant, 557 So. 2d 1225, 1227 (Ala. 1990); Kabel v. Brady, 519 So. 2d 912, 919-20 (Ala. 1987).

[14] Clark v. Black, 630 So. 2d 1012, 1015-16 (Ala. 1993); Great Atl., 374 So. 2d at 880-82; Hicks v. Allstate Ins. Co., 313 So. 3d 548, 552 (Ala. 2020); Fox Alarm Co. v. Wadsworth, 913 So. 2d 1070, 1074 (Ala. 2005).

[15] H.R.H. Metals, Inc. v. Miller ex rel. Miller, 833 So. 2d 18, 25 (Ala. 2002); MAT Sys., Inc. v. Atchison Props., Inc., 54 So. 3d 371, 375-76 (Ala. Civ. App. 2010); Burge v. Parker ex rel. Parker, 510 So. 2d 538, 542 (Ala. 1987).

[16] BellSouth Mobility, Inc. v. Cellulink, Inc., 814 So. 2d 203, 213 (Ala. 2001).

[17] Aspinwall v. Gowens, 405 So. 2d 134, 138 (Ala. 1981).

[18] Saxon v. Johnson, 393 So. 2d 1007, 1010 (Ala. Civ. App. 1980), cert. denied, 393 So. 2d 1012 (Ala. 1981). See also Housing Auth. of Prichard v. Malloy, 341 So. 2d 708, 709-10 (Ala. 1977).

[19] Malloy, 341 So. 2d at 709-10.

[20] H.R.H., 833 So. 2d at 25-26. See also Sears, Roebuck & Co. v. Harris, 630 So. 2d 1018, 1027 (Ala. 1993), cert. denied, 511 U.S. 1128 (1994); Treadwell Ford, Inc. v. Campbell, 485 So. 2d 312, 315-16 (Ala. 1986).

[21] CNH Am., LLC v. Ligon Cap., LLC, 160 So. 3d 1195, 1203-04 (Ala. 2013) (some emphasis in original, other added).

[22] Great Atl., 374 So. 2d at 881.

[23] Barnes, 530 So. 2d at 776 (emphasis added).

[24] Alfa Life Ins. Corp. v. Colza, 159 So. 3d 1240, 1248 (Ala. 2014); Williford v. Emerton, 935 So. 2d 1150, 1154-55 (Ala. 2004); Johnny Spradlin Auto Parts, Inc. v. Cochran, 568 So. 2d 738, 741 (Ala. 1990).

[25] See also William E. Shreve, Jr., Motions for Judgment as a Matter of Law and for New Trial: Preserving the Record for Appeal, Vol. 13 No. 2 Ala. Def. L. Ass’n J. 9, 11 (Oct. 1997).

[26] Id.

[27] CNH, 160 So. 3d at 1203-04.

[28] See also Shreve, supra, Vol. 13 No. 2 Ala. Def. L. Ass’n J. at 11.

[29] King Mines Resort, Inc. v. Malachi Mining & Minerals, Inc., 518 So. 2d 714, 716 (Ala. 1987).

[30] Id.

[31] Id.

[32] Ex parte Grand Manor, Inc., 778 So. 2d 173, 177 (Ala. 2000).

[33] Alfa Life Ins. Corp. v. Jackson, 906 So. 2d 143, 146, 156 (Ala. 2005); Larrimore v. Dubose, 827 So. 2d 60, 62 (Ala. 2001); King Mines Resort, 518 So. 2d at 716-17.

[34] Dolgencorp, LLC v. Spence, 224 So. 3d 173, 187-88 (Ala. 2016); Larrimore, 827 So. 2d at 63; Grand Manor, 778 So. 2d at 177.

[35] Jackson, 906 So. 2d at 157.

[36] Jackson, 906 So. 2d at 146; King Mines Resort, 518 So. 2d at 716-17.

[37] See King Mines Resort, 518 So. 2d at 716-17 & n.3; cf. Mazda Motor Corp. v. Hurst, 261 So. 3d 167, 193-94 (Ala. 2017). See also Hay v. Irving, 893 F.2d 796, 799 (5th Cir. 1990); Johnson Int’l Co. v. Johnson Nat’l Life Ins. Co., 19 F.3d 431, 432-33, 437 (8th Cir. 1994). The “good” claim must also be sufficient to support the damages awarded. For example, if the jury found for the plaintiff on negligence and wantonness, but only the negligence claim was “good,” a compensatory award could stand but a punitive award could not, since punitive damages are not available for negligence.

[38] Rule 50(a)(2); see Paint Rock, 169 So. 3d at 995-96 (plurality op.).

[39] Skerlick v. Gainey, 42 So. 3d 1288, 1289 (Ala. Civ. App. 2010); Barnes, 530 So. 2d at 776; Independent Life & Acc. Ins. Co. v. Parker, 449 So. 2d 233, 236 (Ala. 1984).

[40] Ex parte Mutual Sav. Life Ins. Co., 765 So. 2d 649, 650 (Ala. 1998). Rule 54(a) states that “‘[j]udgment’ as used in these rules includes a decree and any order from which an appeal lies.” An order granting a new trial is appealable under Ala. Code § 12-22-10 and is therefore a “judgment.”

[41] See Mutual Sav. Life Ins., 765 So. 2d at 650-51.

[42] Fielder v. Chandler, 131 So. 3d 630, 633-34 (Ala. Civ. App. 2013); Biggers v. Johnson, 659 So. 2d 108, 109 & n.1 (Ala. 1995).

[43] An order granting or declaring a mistrial is not final or appealable, see Fielder, 131 So. 3d at 634, and therefore is not a “judgment” as defined in Rule 54(a). See supra n.40.

[44] In contrast, Fed. R. Civ. P. 50(b) states that “if the [renewed] motion addresses a jury issue not decided by a verdict,” i.e., one that was mistried, the motion must be filed “no later than 28 days after the jury was discharged.”

[45] Sears, 630 So. 2d at 1031-32. Note that because Sears relates to a matter of procedure, a federal court would not necessarily follow it since federal courts apply federal procedural law.

[46] Barnes, 530 So. 2d at 775.

[47] Id. at 775-78.

[48] Id. at 778, 777.

[49] K.S., 618 So. 2d at 712.

[50] Williams, 771 So. 2d at 445-46.

[51] Scott v. Farnell, 775 So. 2d 789, 791 (Ala. 2000).

[52] Comm. Cmts., Ala. R. Civ. P. 59.

[53] Patterson v. Liberty Nat’l Life Ins. Co., 903 So. 2d 769, 774, 774-77 (Ala. 2004); McGough v. Slaughter, 395 So. 2d 972, 975 (Ala. 1981); Ala. R. Civ. P. 46; Ala. R. Civ. P. 51 & 1973 Comm. Cmts.

[54] Wood v. Hayes, 104 So. 3d 863, 870 n.8 (Ala. 2012); ITEC, Inc. v. Automated Precision, Inc., 623 So. 2d 1139, 1140 (Ala. 1993); Flowers v. Dean, 43 So. 3d 1244, 1246 (Ala. Civ. App. 2009); Auburn Ford, Lincoln Mercury, Inc. v. Norred, 541 So. 2d 1077, 1081 (Ala. 1989); Porter v. Alabama Farm Bureau Mut. Cas. Ins. Co., 279 Ala. 499, 504, 187 So. 2d 254, 258-59 (1966).

[55] King Mines Resort, 518 So. 2d at 716; Carter, 598 So. 2d at 1353-54; Spiers v. Flowers, 572 So. 2d 1269, 1270 (Ala. 1990); Harlan v. Smith, 507 So. 2d 943, 944 (Ala. Civ. App. 1986).

[56] Carter, 598 So. 2d at 1354.

[57] Benson v. Vick, 460 So. 2d 1309, 1313 (Ala. Civ. App. 1984). See also Jones v. Wise, 282 Ala. 707, 713, 213 So. 2d 914, 919 (1968).

[58] Nobility Homes, Inc. v. Ballentine, 386 So. 2d 727, 729 (Ala. 1980). See also Flowers, 43 So. 3d at 1246-47 (grounds stated were insufficient to preserve inadequate damages).

[59] Trotter v. Sumner, 56 Ala. App. 87, 89-90, 319 So. 2d 284, 286 (1975). See also Surber v. Mann, 46 Ala. App. 700, 702, 248 So. 2d 740, 742 (1971).

[60] Heisz v. Galt Indus., Inc., 93 So. 3d 918, 929 (Ala. 2012); J.P. v. Madison Cnty. Dep’t of Human Resources, 386 So. 3d 56, 59 (Ala. Civ. App. 2023).

[61] Weeks v. Herlong, 951 So. 2d 670, 676-78 (Ala. 2006); Marshall Cnty. Dep’t of Human Resources v. J.V., 203 So. 3d 1243, 1248 n.5 (Ala. Civ. App. 2016).

[62] Griggs v. Griggs, 304 So. 3d 741, 744 (Ala. Civ. App. 2020) (question not preserved where judgment “did not make specific findings of fact on th[e] issue [of alimony]”); McMillian v. McMillian, 263 So. 3d 707, 712 (Ala. Civ. App. 2018) (no specific findings “on the issues of reconciliation and cohabitation”); Hood v. Hood, 76 So. 3d 824, 834 (Ala. Civ. App. 2011) (no specific findings “relative to the issue of child support”) (emphases added).

[63] McMillian, 263 So. 3d at 712 (findings of fact on certain issues preserved sufficiency-of-evidence question as to those issues, but not as to issues on which court made no findings).

[64] New Props., 905 So. 2d at 801-02 (emphasis added). If the trial court grants a new-trial motion based on evidentiary insufficiency, the court need not conduct a new trial but may simply render judgment for the movant. See Ala. R. Civ. P. 59(a); Martin v. Patterson, 975 So. 2d 984, 989, 992, 995-96 (Ala. Civ. App. 2007) (main op. & Pittman, J., concurring); cf. Lawrence v. Lawrence, 117 So. 3d 723, 727 (Ala. Civ. App. 2013).

[65] Childs v. Pommer, 348 So. 3d 379, 389, 391 (Ala. 2021); Griggs, 304 So. 3d at 744; Hood, 76 So. 3d at 834.

[66] Murphy Oil USA, Inc. v. English, 333 So. 3d 641, 643-44 (Ala. 2021); J.S. v. S.S., 281 So. 3d 409, 413-14 (Ala. Civ. App. 2018); Griggs, 304 So. 3d at 744; Hood, 76 So. 3d at 834.

[67] Childs, 348 So. 3d at 391; Corriveau v. Whitcomb, 366 So. 3d 975, 980 (Ala. Civ. App. 2022); Shackelford v. Shackelford, 377 So. 3d 516, 524 (Ala. Civ. App. 2022); Point Clear Landing Ass’n v. Kaylor, 959 So. 2d 672, 677-78 (Ala. Civ. App. 2006).

[68] Corriveau, 366 So. 3d at 980 (emphasis added).

[69] New Props., 905 So. 2d at 805 (Harwood, J., concurring specially). Ala. R. Civ. P. 52(c) (“Judgment on Partial Findings”) provides that “[i]f during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue,” the court “may enter judgment 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,” or the court “may decline to render any judgment until the close of all the evidence.”

[70] Daily v. Esser, 391 So. 3d 268, 282, 292, 303-04 (Ala. 2023) (waiver where trial court made no findings of fact and defendants did not move for new trial, though defendants filed motion for judgment on partial findings [mistitled one for “directed verdict”] during trial). See also Reeves v. Fancher, 210 So. 3d 595, 598 (Ala. Civ. App. 2016) (motion for “directed verdict” or “judgment as a matter of law” in non-jury case is treated as motion under Rule 52(c)).

[71] Lawson v. Harris Culinary Enters., LLC, 83 So. 3d 483, 490-92 & n.12 (Ala. 2011).

[72] T.G.F. v. D.L.F., 237 So. 3d 216, 224 (Ala. Civ. App. 2017); Vines v. Vines, 195 So. 3d 985, 988-89 (Ala. Civ. App. 2015).

[73]Cowperthwait v. Cowperthwait, 231 So. 3d 1101, 1106-07 (Ala. Civ. App. 2017).

[74] Comm. Cmts., Ala. R. App. P. 4. See also Edwards v. Crowder, 2024 WL 2500836, *5 (Ala. May 24, 2024) (“When a postjudgment motion is the only mechanism for bringing an alleged error to the [trial] court’s attention, … the alleged error must be raised in a postjudgment motion.”).

[75] Lay v. Destafino, 385 So. 3d 15, 20-21 (Ala. 2023).

[76] Sumblin v. Ward, 2024 WL 3464314, *5 (Ala. Civ. App. July 19, 2024).

[77] Childs, 348 So. 3d at 391.

[78] Docen v. Docen, 294 So. 3d 767, 770-71 (Ala. Civ. App. 2019). Docen held that, even though “successive” or “repetitive” post-judgment motions are generally not permitted, it was necessary for the father to file a second post-judgment motion to preserve an issue as to child support that was only revealed by the trial court’s order on the father’s first post-judgment motion, and which therefore could not have been raised in the father’s first motion. Id. Extreme caution must be exercised in filing any second post-judgment motion, because if the motion is determined to have been impermissible, it does not stay the time for appeal (as post-judgment motions ordinarily do under Ala. R. App. P. 4(a)(3)). See Schwadron v. Schwadron, 906 So. 2d 948, 950-51 (Ala. Civ. App. 2005).

[79] Wright v. Hatley Health Care, Inc., 980 So. 2d 1024, 1029 (Ala. Civ. App. 2007).