Marquette Venture Partners v. Leonesio (CA1 5/3/11)

This is a ruling on a motion for partial dismissal of an appeal. It is published as an opinion, however, presumably to draw attention to a point of procedure.

The parties sued each other because of a business dispute. At trial Leonesio made an unsuccessful motion for JMOL, which he made again at the close of the evidence. The jury found for him on some things but awarded Marquette damages on others. The parties cross-appealed.

On appeal, Marquette moved to dismiss Leonesio’s contention that the verdict wasn’t supported by the evidence because the appeal statute (12-2102) requires a motion for new trial to preserve that argument. Leonesio’s position was that his “renewed” motion for JMOL did that.

(The court points out, in one of those very occasional useful footnotes, that Leonesio didn’t renew his JMOL motion. This is a difference between directed verdict and JMOL. DV had to be renewed at the conclusion of the evidence, which presumably explains why Leonesio did so. When JMOL replaced it the take-away was that you didn’t have to do that any more, lawyers having considered the renewal requirement a “trap,” i.e., a requirement that careless ones tended to forget. JMOL does get renewed, though, but after judgment rather than during trial.)

(The court implies that proper renewal would have preserved the argument. But that’s not the holding and, though it’s right, is technically an open issue. A 1950 case says that a Rule 50(b) motion will do; but while today that’s renewal of JMOL in 1950 it was judgment NOV, a slightly different beast that is mostly extinct, as are those of us who cut our teeth on DVs and NOVs.)

The court holds, citing a U.S. Supreme Court case construing the similar federal rule, that a trial motion for JMOL does not preserve on appeal the issue of the sufficiency of the evidence.

Applying that to this case, the court first says that Leonesio’s statute-of-limitations claim is barred. It’s a bit hard to tell whether that’s because the court considers that generically a sufficiency-of-the-evidence issue or whether (more likely, we think) Leonesio had failed to make his record on the limitations issue and so tried to argue it under a sufficiency rubric.

The court next says that Leonesio’s contention that Marquette ratified his actions was also a sufficiency argument. (But he hadn’t made a record on that, either, and in fact hadn’t argued it below at all.) Whether the evidence showed that certain provisions of an agreement were met was also a barred sufficiency argument, as was whether the evidence was sufficient for punitive damages (Leonesio raised a new one on appeal about that, too, and although it was a constitutional issue the court refused to consider it.)

(link to opinion)