Defendant waived appellate arguments by failing to renew motion for directed verdict or file motion for new trial.

Where defendant moved for a directed verdict after the close of plaintiff’s proof but failed to renew the motion at the close of all proof, and did not file a post-trial motion seeking a new trial, defendant waived review of the denial of the motion for directed verdict as well as review of the sufficiency of the evidence.

In Lebel v. CWS Marketing Group, Inc., No. E2022-01106-COA-R3-CV (Tenn. Ct. App. Aug. 31, 2023), plaintiff purchased a home at auction and later brought this claim against defendant, who marketed and facilitated the auction. Plaintiff alleged that defendant knew the home had mold issues and failed to disclose them, and defendant misrepresented the number of acres sold with the home. In addition to contract claims, plaintiff asserted a claim for reckless misrepresentation.

At the end of plaintiff’s proof, defendant moved for a directed verdict, which the trial court denied. Defendant failed to renew its motion at the close of its own proof, and the jury returned a verdict for plaintiff. Defendant did not file a post-trial motion for a new trial, but appealed asserting that the trial court erred in denying the motion for directed verdict and that the evidence was not sufficient to support the jury’s finding. The Court of Appeals ruled that defendant had waived both of these arguments and affirmed the jury’s verdict.

Citing to Tennessee Rule of Appellate Procedure 3(e), the Court found that defendant “waived its right to appeal the trial court’s denial of its motion for a directed verdict by failing to file a motion for a new trial[.]” In addition, because defendant did not renew its motion for directed verdict after the close of all the proof in the jury trial, it also “waived appellate review of whether the evidence was sufficient to support the jury’s verdict[.]” Stating that this “appeal had no prospect of success,” the Court deemed the appeal frivolous and granted plaintiff’s request for attorney’s fees incurred on appeal. The jury’s verdict was thus affirmed.

This opinion was released two months after oral arguments in this case.