8.2Judgment Notwithstanding the Verdict (JNOV) and New Trial

A.Generally

After a verdict in a civil case, a party may move for judgment notwithstanding the verdict (JNOV) under MCR 2.610, request a new trial under MCR 2.611, or request relief under both court rules. MCR 2.610(A).

Timing. A motion under MCR 2.610 or MCR 2.611 must be filed within 21 days after entry of a judgment. MCR 2.610(A)(1); MCR 2.611(B).

Decision. Under either court rule, “the court must give a concise statement of the reasons for the ruling, either in a signed order or opinion filed in the action, or on the record.” MCR 2.610(B)(3); MCR 2.611(F).

B.Motion for JNOV Standard

A motion for JNOV should only be granted where the evidence, when viewed in the light most favorable to the nonmoving party, fails to establish a claim as a matter of law. Wilkinson v Lee, 463 Mich 388, 391 (2000). “If reasonable jurors could have honestly reached different conclusions, the jury verdict must stand.” Hecht v Nat’l Heritage Academies, Inc, 499 Mich 586, 605-606 (2016) (alteration, quotation marks, and citation omitted). A party’s motion for JNOV is properly denied when judgment in that party’s favor is “not required as a matter of law based on the jury’s findings of fact[.]” Law Offices of Jeffrey Sherbow, PC v Fieger & Fieger, PC, 326 Mich App 684, 718 (2019), rev‘d in part on other grounds 507 Mich 272 (2021).¹

C.Failure to Timely Raise a Request for JNOV

Failure to request JNOV at the trial court renders the issue unpreserved for appeal. Law Offices of Jeffrey Sherbow, PC v Fieger & Fieger, PC, 326 Mich App 684, 718 (2019), rev‘d in part on other grounds _507 Mich 272 (2021).² It is improper procedure for the defendant “to allow a civil trial to go full-term, with a jury verdict rendered in plaintiff’s favor and judgment entered pursuant to that verdict, with no objection raised during trial to the sufficiency of the evidence, and then to raise a challenge to the sufficiency of the evidence for the first time on appeal and receive judgment in its favor notwithstanding the jury verdict.” Napier v Jacobs, 429 Mich 222, 230 (1987).

D.Motion for New Trial Standard

“A new trial may be granted to all or some of the parties, on all or some of the issues, whenever their substantial rights are materially affected, for any of the following reasons:

(a) Irregularity in the proceedings of the court, jury, or prevailing party, or an order of the court or abuse of discretion which denied the moving party a fair trial.

(b) Misconduct of the jury or of the prevailing party.

(c) Excessive or inadequate damages appearing to have been influenced by passion or prejudice.

(d) A verdict clearly or grossly inadequate or excessive.

(e) A verdict or decision against the great weight of the evidence or contrary to law.

(f) Material evidence, newly discovered, which could not with reasonable diligence have been discovered and produced at trial.

(g) Error of law occurring in the proceedings, or mistake of fact by the court.

(h) A ground listed in MCR 2.612 [(relief from judgment or order)] warranting a new trial.” MCR 2.611(A)(1).³

 A party is not entitled to a new trial unless the party proves one of the grounds listed in MCR 2.611(A)(1). Kelly v Builders Square, Inc, 465 Mich 29, 38-39 (2001) (the trial court abused its discretion in granting the plaintiff’s motion for a new trial upon a finding that the jury’s “failure to award pain and suffering damages was ‘inconsistent’ and ‘incongruous,’” because “MCR 2.611(A)(1) does not identify inconsistency or incongruity as a ground for granting a new trial”).

“Under MCR 2.611(A)(1)(e), a new trial may be granted to all or some of the parties, on all or some of the issues, whenever their substantial rights are materially affected, for any of the following reasons: a verdict or decision is against the great weight of the evidence or contrary to law.” People v Knepper, ___ Mich App ___, ___ (2024) (cleaned up). “The test to determine whether a verdict is against the great weight of the evidence is whether the evidence preponderates so heavily against the verdict that it would be a miscarriage of justice to allow the verdict to stand.” Id. at ___ (quotation marks and citation omitted). “The hurdle that a judge must clear in order to overrule a jury and grant a new trial is unquestionably among the highest in our law.” Id. at ___ (quotation marks and citation omitted). “As a general principle, a verdict may be vacated only when the evidence does not reasonably support it and it was more likely the result of causes outside the record, such as passion, prejudice, sympathy, or some other extraneous influence.” Id. at ___ (quotation marks and citation omitted). Accordingly, “unless it can be said that directly contradictory testimony was so far impeached that it was deprived of all probative value or that the jury could not believe it, or contradicted indisputable physical facts or defied physical realities, the trial court must defer to the jury’s determination.” Id. at ___ (cleaned up). “The trial court may also override the jury’s credibility determination when the testimony is ‘patently incredible’ or it is ‘so inherently implausible that it could not be believed by a reasonable juror, or where the [witness’s] testimony has been seriously impeached and the case marked by uncertainties and discrepancies.” Id. at ___ (quotation marks and citation omitted). “Thus, to obtain a new trial, the defendant must establish that one of these circumstances exists, and that there is a real concern that an innocent person may have been convicted or that it would be a manifest injustice to allow the guilty verdict to stand.” Id. at ___ (quotation marks and citation omitted).

In Knepper, the “defendant challeng[ed] his conviction for attempt to commit CSC-I by contending that the jury verdict was against the great weight of the evidence.” Id. at ___. The defendant argued “that the victim’s testimony was so patently implausible that it could not be believed by any reasonable juror,” “his theory of the case was not impeached, and that an extraneous influence on the jury—the victim asserting for the first time at trial that defendant raped her—caused the guilty verdict.” Id. at ___. “But defendant [failed to] identify any specific element of the crime of conviction that he believes is negated by inconsistent testimony.” Id. at ___. Although “defendant thoroughly attack[ed] the victim’s testimony about the altercation she had with her father on the night in question,” he did not “explain how inconsistent testimony on that issue support[ed] his argument that his conviction of attempt to commit CSC-I was against the great weight of the evidence.” Id. at ___. “Despite the victim’s credibility issues,” “her testimony was [not] impeached to the point that it was deprived of all probative value or that the jury could not believe it, or that her testimony contradicted indisputable physical facts or defied physical realities.” Id. at ___. “Simply stated, the record contain[ed] ample evidence to support defendant’s conviction for attempt to commit CSC-I, so defendant is not entitled to a new trial on the basis of the great weight of the evidence.” Id. at ___. “The fact that the victim’s father would not have approved of his daughter engaging in sexual acts with defendant could bear upon the victim’s credibility, but it [did] not negate her version of events, so the issue remain[ed] one of credibility.” Id. at ___ (stating that “even if defendant was correct in claiming that the victim and her father engaged in a violent altercation, that does not negate the victim’s claim that defendant committed the offense of attempt to commit CSC-I”). “In sum, although the evidence supporting defendant’s conviction was not strong, consisting primarily of the victim’s testimony which suffered from inconsistencies and an accompanying lack of credibility, the bar defendant must clear to obtain relief in the form of a new trial is exceedingly high.” Id. at ___ (holding that defendant failed to meet that high standard).

“There is a distinction between the requirements of MCR 2.611(A)(1)(f) and [MCR 2.611(A)(1)(h)]”; under MCR 2.611(A)(1)(f), a trial court may grant a new trial when the substantial rights of a party are substantially affected by “material evidence, newly discovered, which could not with reasonable diligence have been discovered and produced at trial.” Int'l Outdoor, Inc v SS Mitx, LLC, ___ Mich App ___, ___ (2023) (cleaned up). In contrast, MCR 2.611(A)(1)(h) provides that a trial court may grant a new trial on the basis of “a ground listed in MCR 2.612 warranting a new trial.” Int’l Outdoor, ___ Mich App at ___ (cleaned up). “Fraud is a ground listed in MCR 2.612 justifying relief from a judgment, and thus falls into the category of MCR 2.611(A)(1)(h), not MCR 2.611(A)(1)(f).” Int’l Outdoor, ___ Mich App at ___ (holding that “MCR 2.612(C)(1)(c) does not impose a requirement of due diligence upon a party seeking relief from judgment on the basis of fraud, misrepresentation, or other misconduct of an adverse party”).

“By its plain language, MCR 2.611(A)(1) applies only to judgments reached following a trial.” Rental Props Owners Ass’n of Kent Co v Kent Co Treasurer, 308 Mich App 498, 533 (2014) (finding that the trial court erred by addressing the parties’ motion under MCR 2.611(A) to set aside a quiet title and foreclosure judgment where no trial on the merits was held).

On a motion for a new bench trial, the court may:

“(a) set aside the judgment if one has been entered,

(b) take additional testimony,

(c) amend findings of fact and conclusions of law, or

(d) make new findings and conclusions and direct the entry of a new judgment.” MCR 2.611(A)(2).

E.Standard of Review

A trial court’s decision on a motion for JNOV is reviewed de novo. Sniecinski v BCBSM, 469 Mich 124, 131 (2003).

A court’s decision whether to grant a motion for new trial under MCR 2.611 is reviewed for an abuse of discretion. Kelly v Builders Square, Inc, 465 Mich 29, 34 (2001).