Johnson v. Menard, Inc.

955 N.W.2d 27

Darlene Jean JOHNSON, Plaintiff and Appellee

v.MENARD, INC., Defendant and Appellant

No. 20200126

Supreme Court of North Dakota.

FILED FEBRUARY 18, 2021

Tyler J. Siewert (argued) and Meggi R. Ihland Pelton (on brief), Bismarck, ND, for plaintiff and appellee.

Lisa M. Six, Williston, ND, for defendant and appellant.

VandeWalle, Justice.

[¶1] After a jury trial, Menard, Inc. ("Menards") appealed from an order denying a motion for summary judgment, an order denying a motion for judgment as a matter of law, an order granting attorney's fees, an order as to the amount of attorney's fees recoverable and entry of judgment, and a judgment. We affirm, but remand for consideration of attorney's fees for this appeal.

I

[¶2] On May 6, 2013, Darlene Johnson visited a Menards store in Minot to exchange an item. A Menards employee directed Johnson to find the exchange in the store and return to the service counter. Johnson turned toward her right and started walking away. Almost immediately, Johnson tripped over a flatbed cart. The cart was one Menards offers its customers to use while in the store. As a result of the trip and fall, Johnson cracked seven teeth.

[¶3] On August 16, 2017, Johnson filed a negligence action against Menards in small claims court seeking damages in the amount of $14,818.00. Menards removed the case to district court. Johnson then amended her claim with the consent of Menards. In the amended complaint, Johnson sought a jury trial and "a reasonable amount but not less than $50,000" in damages. Before trial, Menards moved for summary judgment contesting whether sufficient facts created a duty of care it owed to Johnson. The court denied the motion. At trial, Menards moved for judgment as a matter of law at the close of Johnson's case. Menards again claimed insufficient evidence existed to require a duty of care Menards owed Johnson. Alternatively, Menards argued it had met any duty it owed Johnson. The court denied the motion. Menards did not renew its motion for judgment as a matter of law at the close of its case or after the jury returned the verdict.

[¶4] The jury returned a verdict awarding Johnson $36,392.00 in damages plus three percent interest. After briefing and argument, the court granted Johnson $144,476.97 in attorney's fees under N.D.C.C. § 27-08.1-04.

II

[¶5] Menards argues the district court erred when it denied Menards’ motion for summary judgment and motion for judgment as a matter of law. "Once a case proceeds to trial, the question of whether a party has met its burden as to the elements of a claim must be answered with reference to the evidence and the record as a whole, rather than by looking to the pretrial submissions alone." Berg v. Dakota Boys Ranch Ass'n , 2001 ND 122, ¶ 10, 629 N.W.2d 563. A full trial renders sufficiency of the evidence issues raised in summary judgment motions moot. Id. After a full trial, the proper redress for an allegedly erroneous denial of summary judgment for insufficient evidence is through subsequent motions for judgment as a matter of law. See id. (citing Pleadings and Motions , 28 Fed. Proc., L. Ed., § 62:636 (1996) ). Therefore, the trial rendered the issues in Menards’ motion for summary judgment moot and the proper redress here would be under a motion for judgment as a matter of law.

III

[¶6] Johnson argues Menards failed to preserve the issue of insufficient evidence for our review by failing to make a motion for judgment as a matter of law at the close of all the evidence and after the verdict was returned under N.D.R.Civ.P. 50(b). "The interpretation of a court rule or a statute is a question of law that we review de novo." PHI Fin. Serv. v. Johnston Law Office, P.C. , 2016 ND 114, ¶ 17, 881 N.W.2d 216 (quoting State v. Chacano , 2012 ND 113, ¶ 10, 817 N.W.2d 369 ).

[¶7] A party can make a motion for judgment as a matter of law during trial under N.D.R.Civ.P. 50(a). Rule 50(b), N.D.R.Civ.P., allows a party to renew a motion for judgment as a matter of law after trial. This rule states:

If, the court does not grant a motion for judgment as a matter of law made under subdivision (a), the court may later decide the legal questions raised by the motion. The moving party may renew its request for judgment as a matter of law by serving and filing a motion no later than 28 days after notice of entry of judgment or, if the motion addresses a jury issue not decided by a verdict, no later than 28 days after the jury was discharged ....

N.D.R.Civ.P. 50(b).

[¶8] In Berg v. Dakota Boys Ranch Ass'n , this Court found an appeal of a summary judgment motion alleging insufficient evidence moot because the case went to a full trial. 2001 ND 122, ¶ 11, 629 N.W.2d 563. Instead, this Court reviewed the motion for judgment as a matter of law stating, "The movant can, however, preserve for appellate review the same issues raised by the summary judgment motion by making appropriate motions for judgment as a matter of law at the close of all the evidence and after the verdict is returned." Id. at ¶ 10 (quoting James Wm. Moore, Moore's Federal Rules Pamphlet, 2001, Part 1: Federal Rules of Civil Procedure § 56.8[2] (2000)) (emphasis added).

[¶9] In Disciplinary Bd. v. McDonald , this Court discussed the issue of a renewed motion for judgment as a matter of law. 2000 ND 87, ¶ 16, 609 N.W.2d 418. Although the disciplinary proceeding was quasi-judicial, this Court interpreted N.D.R.Civ.P. 50(a) stating, "Technically a party waives the right to a judgment as a matter of law if the motion is made at the close of the opponent's case, and thereafter the moving party introduces evidence on its own behalf." Id. (quoting 9A Wright & Miller, Federal Practice and Procedure: Civil 2d § 2534, at p. 322 (1995)).

[¶10] "When a state rule is derived from a corresponding federal rule, the federal courts’ interpretation of the federal rule may be persuasive authority when interpreting our rule." White v. T.P. Motel, L.L.C. , 2015 ND 118, ¶ 20, 863 N.W.2d 915. Rule 50, N.D.R.Civ.P., resembles the corresponding federal rule. Compare N.D.R.Civ.P. 50, with Fed. R. Civ. P. 50. In the context of Rule 50 of the Federal Rules of Civil Procedure, an often-cited authority stated:

There is authority to the effect that a party technically waives the right to a judgment as a matter of law if the Rule 50 motion is made at the close of the opponent's case, and thereafter the moving party introduces evidence in its own behalf. However, the moving party may renew the motion at the close of all the evidence. If the party fails to renew the motion, that party may not claim error on appeal from a denial of the motion at the close of the opponent's evidence, although some courts have been willing to consider "plain error."

9B Wright & Miller, Federal Practice and Procedure: Civil 3d § 2534 (2020).

[¶11] In Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc. , the U.S. Supreme Court interpreted Rule 50 of the Federal Rules of Civil Procedure. 546 U.S. 394, 399-407, 126 S.Ct. 980, 163 L.Ed.2d 974 (2006). Before the matter at issue in Unitherm went to the jury for deliberation, the defendant moved for a directed verdict claiming insufficiency of the evidence under Rule 50(a) of the federal rules. Id. at 398, 126 S.Ct. 980. The district court denied the motion and the jury returned a verdict in favor of the plaintiff. Id. The defendant did not renew its motion for judgment as a matter of law under Rule 50(b) of the federal rules after the verdict. Id.

[¶12] On appeal, the U.S. Supreme Court held without a Rule 50(b) motion "an appellate court is without power to direct the District Court to enter judgment contrary to the one it had permitted to stand." Unitherm , 546 U.S. at 400-01, 126 S.Ct. 980 (quoting Cone v. West Virginia Pulp & Paper Co. , 330 U.S. 212, 218, 67 S.Ct. 752, 91 L.Ed. 849 (1947) ). The Court said, "[A] party's failure to file a Rule 50(b) motion deprives the appellate court of the power to order the entry of judgment in favor of that party where the district court directed the jury's verdict ...." Id. at 401, 126 S.Ct. 980. Additionally, the Court stated, "A postverdict motion is necessary because determination of whether a new trial should be granted or a judgment entered under Rule 50(b) calls for the judgment in the first instance of the judge who saw and heard the witnesses and has the feel of the case which no appellate printed transcript can impart." Id. (quoting Cone , at 216, 67 S.Ct. 752 ).

[¶13] The U.S. Court of Appeals for the Eighth Circuit has held the Unitherm opinion is limited to post-trial appeals where sufficiency of the evidence challenges are made and a party fails to renew their motion for judgment as a matter of law under Rule 50(b). Linden v. CNH Am., LLC , 673 F.3d 829, 832-33 (8th Cir. 2012). The Eighth Circuit noted, "Reading Unitherm more broadly would dramatically alter the well-accepted rule that an objection at trial generally preserves an issue for review on appeal." Id. at 833.

[¶14] We follow the interpretation of the federal courts and apply it to Rule 50 of the North Dakota Rules of Civil Procedure. During trial, a party can make a motion for judgment as a matter of law alleging insufficient evidence under N.D.R.Civ.P. 50(a). However, after the jury returns its verdict the party must renew the motion under N.D.R.Civ.P. 50(b) to preserve the sufficiency of the evidence issue for our review. Without a renewed Rule 50(b) motion, the district court has no opportunity to weigh whether all the evidence presented at trial is insufficient. The district court must have the opportunity to make an initial determination on whether the motion should be granted.

[¶15] In this case, Menards made a motion for judgment as a matter of law alleging insufficient evidence at the close of Johnson's case under N.D.R.Civ.P. 50(a). However, Menards did not renew the motion after the close of all the evidence and after the jury returned its verdict in favor of Johnson. Therefore,...