Reporter’s Notes—2022 Amendment: V.R.C.P. 50(b) is amended in response to the Vermont Supreme Court’s request in Blondin v. Milton Town School District, 2021 VT 2, ¶ 26 n.10, 214 Vt. 44, 251 A.3d 959, that the Civil Rules Committee consider whether that rule “should be amended to be consistent with the federal rule and potentially to allow consideration of pure questions of law on appeal absent renewal following judgment.” V.R.C.P. 50(b) as originally adopted in 1971 was identical to F.R.C.P. 50(b) as it then stood. Reporter’s Notes (1971). In 1988 the Vermont Rule was amended by the addition of the language, “Renewal of the motion is necessary to appeal from a denial of or failure to grant a motion for judgment as a matter of law.” The 1988 Reporter’s Notes state that the sentence was added to make explicit a requirement found implicit in F.R.C.P. 50(b) to which the Vermont Rule was otherwise identical. Subsequent amendments to V.R.C.P. 50(b) tracked most changes in the Federal Rule through 2009. See Reporter’s Notes to 2009 and 2018 amendments of V.R.C.P. 50(b). The requirement of renewal of the motion before an appeal from the denial, however, remains unique to the Vermont Rule. The U.S. Supreme Court in Unitherm Food Systems, Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 407 (2006), held that failure to renew a preverdict motion for judgment as a matter of law under Rule 50(b) prevented appellate review of a sufficiency of evidence challenge. In Blondin, the Vermont Supreme Court, 2021 VT 2, ¶¶ 22–26, noted several Federal Court of Appeals decisions holding that Unitherm applied only to Rule 50(b) motions addressing sufficiency of the evidence and that a motion raising “a pure question of law” could be reviewed even though the motion had not been renewed after verdict. Even assuming, though not deciding, that “a pure question of law” had been raised by respondent, the Vermont Supreme Court, in light of the explicit renewal requirement unique to the Vermont Rule, declined “on our own motion” to adopt this exception. The U.S. Court of Appeals decisions examined by the Vermont Supreme Court, and many other such decisions that recognize the pure question of law exception, read Unitherm as limited to questions of sufficiency of the evidence and not extending to issues that do not involve any evidentiary questions and would normally only be decided by the judge in a jury trial. See, e.g., Doherty v. City of Maryville, 431 F. App’x 381, 385 (6th Cir. 2011); Belk, Inc. v. Meyer Corp. U.S., 679 F.3d 146, (4th Cir. 2012); Linden v. CNH Am., LLC, 673 F.3d 829, 832-33 (8th Cir. 2012); Frank C. Pollara Grp., LLC v. Ocean View Inv. Holding, LLC, 784 F.3d 177, 188 (3d Cir. 2015). See also cases cited in 9B C. Wright and A. Miller, Federal Practice and Procedure §§ 2537, 2540 (3d ed.). The present amendment of V.R.C.P. 50(b) adopts this interpretation of Unitherm by limiting the requirement to renew the motion to sufficiency-of-the-evidence questions. The effect of the amendment is to allow case-by-case development of the line between sufficiency-of-the-evidence questions and pure questions of law. The amendment reflects a change in the circumstances that led to the 1988 amendment of V.R.C.P. 50(b). The Reporter’s Notes to that amendment state that the purpose of the added sentence was to make clear that Federal case law was “unambiguous” in requiring a new motion after verdict for judgment notwithstanding the verdict to support an appeal from a denial of a directed verdict. Unitherm, decided in 2006, and the many Courts of Appeal’s decisions applying it, make clear that Federal case law has undergone the sea change reflected in the present amendment: Only motions for judgment based on sufficiency-of-the-evidence claims require a new post-verdict motion.
Reporter’s Notes—2018 Amendment: Rule 50 is amended for consistency with the current federal standard for motion practice, which was extended from 10 days to 28 days.
Reporter’s Notes—2009 Amendment: V.R.C.P. 50(b) is amended to conform the Vermont rule to a 2006 amendment of F.R.C.P. 50(b). V.R.C.P. 50 was revised in its entirety in 1995 to incorporate the substance of 1991 and 1993 amendments of F.RC.P. 50. See Reporter’s Notes to 1995 Amendment of V.R.C.P. 50. Under V.R.C.P. 50(a) as amended in 1995, a motion for judgment as a matter of law can be made at any time before submission of the case to the jury, so long as the opposing party, as a party, has been fully heard on an issue. Both V.R.C.P. and F.R.C.P. 50(b) relating to renewal of the motion after trial, however, continued to require that the prior motion have been made at the close of all the evidence. The present amendment to V.R.C.P. 50(b) adopts a 2006 amendment of F.R.C.P. 50(b) that deleted this reference so that the rule requires only a prior motion made under V.R.C.P. 50(a), rather than a motion made at the close of all the evidence. Because the post-judgment motion is merely a renewal of the pre-verdict motion, it can be granted only on grounds advanced in the prior motion. The amendment “responds to many decisions that have begun to move away from requiring” that the pre-verdict motion have been made literally at the close of all the evidence, a requirement that lawyers continually overlook. The amendment is intended to establish a functional practice that is more consistent and predictable than that under the prior rule. The amendment is not intended to discourage judges from expressly inviting motions at the close of all the evidence. The amendment also makes clear that a post- judgment motion addressing an issue not decided by verdict must be made within ten days after the jury is discharged. See Advisory Committee’s Note to 2006 Amendment of F.R.C.P. 50(b).
Reporter’s Notes—2006 Amendment: Rules 50(b) and (c) are amended for conformity with the Federal Rules and to establish internal consistency within the Vermont Rules of Civil and Appellate Procedure. Motions under a number of the Vermont Rules of Civil and Appellate Procedure terminate the running of the filing for time to appeal under V.R.A.P. 4 or have the similar effect. These rules use a variety of terminology to define the time that triggers that effect - “serve,” “file,” “made.” See V.R.C.P. 50(b), (c), 52(a), 59(b), (c), (e), and 60(b), and V.R.A.P. 5(b) and 5.1(a). In 1995 amendments, the common usage “file” or “filing” was adopted for the comparable Federal Rules. A recent three-justice decision from the Vermont Supreme Court, however, has interpreted the language of Rule 59(e) calling for service of a motion to alter a judgment no later than 10 days after entry of judgment to mean that the motion must be filed no later than 10 days after entry of judgment. Roy v. Gorczyk, Docket No. 2004-128 (November 10, 2004). Accordingly, for consistency and to follow the result of Roy v. Gorczyk, the above-referenced provisions of the Vermont Rules of Civil and Appellate Procedure are being simultaneously amended to use the term “file” or its variants.
Reporter’s Notes—1995 Amendment: Rule 50 is amended to conform to 1991 and 1993 amendments of Federal Rule 50. The only difference is the retention in amended Rule 50(b) of a provision added to the Vermont rule by a 1988 amendment expressly providing that a motion for judgment must be renewed after trial to preserve the denial of a motion made during trial as a ground of appeal. See Reporter’s Notes to that amendment. A simultaneous amendment adding Rule 52(c) assures a parallel procedure for nonjury trials. The reasons for the amendment are fully set forth in the federal Advisory Committee’s Note to the 1991 amendment: Subdivision (a). The revision of this subdivision aims to facilitate the exercise by the court of its responsibility to assure the fidelity of its judgment to the controlling law, a responsibility imposed by the Due Process Clause of the Fifth Amendment. Cf. Galloway v. United States, 319 U.S. 372 (1943). The revision abandons the familiar terminology of direction of verdict for several reasons. The term is misleading as a description of the relationship between judge and jury. It is also freighted with anachronisms some of which are the subject of the text of former subdivision (a) of this rule that is deleted in this revision. Thus, it should not be necessary to state in the text of this rule that a motion made pursuant to it is not a waiver of the right to jury trial, and only the antiquities of directed verdict practice suggest that it might have been. The term “judgment as a matter of law” is an almost equally familiar term and appears in the text of Rule 56; its use in Rule 50 calls attention to the relationship between the two rules. Finally, the change enables the rule to refer to pre-verdict and post-verdict motions with a terminology that does not conceal the common identity of two motions made at different times in the proceeding. If a motion is denominated a motion for directed verdict or for judgment notwithstanding the verdict, the party’s error is merely formal. Such a motion should be treated as a motion for judgment as a matter of law in accordance with this rule. Paragraph (a)(1) articulates the standard for the granting of a motion for judgment as a matter of law. It effects no change in the existing standard. That existing standard was not expressed in the former rule, but was articulated in long-standing case law. See generally Cooper, Directions for Directed Verdicts: A Compass for Federal Courts, 55 MINN. L. REV. 903 (1971). [Cf. Champlain Oil Co. v. Trombley, 144 Vt. 291, 476 A.2d 536 (1984).] The expressed standard makes clear that action taken under the rule is a performance of the court’s duty to assure enforcement of the controlling law and is not an intrusion on any responsibility for factual determinations conferred on the jury . . . . Because this standard is also used as a reference point for entry of summary judgment under 56(a), it serves to link the two related provisions. The revision authorizes the court to perform its duty to enter judgment as a matter of law at any time during the trial, as soon as it is apparent that either party is unable to carry a burden of proof that is essential to that party’s case. Thus, the second sentence of paragraph (a)(1) authorizes the court to consider a motion for judgment as a matter of law as soon as a party has completed a presentation on a fact essential to that party’s case. Such early action is appropriate when economy and expedition will be served. In no event, however, should the court enter judgment against a party who has not been apprised of the materiality of the dispositive fact and been afforded an opportunity to present any available evidence bearing on that fact . . . . Thus, the revision affords the court the alternative of denying a motion for summary judgment while scheduling a separate trial of the issue under Rule 42(b) or scheduling the trial to begin with a presentation on that essential fact which the opposing party seems unlikely to be able to maintain. [According to the federal Advisory Committee’s Note, the 1993 amendment to the federal rule “makes clear that judgment as a matter of law may be entered against both plaintiffs and defendants and with respect to issues or defenses that may not be wholly dispositive of a claim or defense.”][According to the federal Advisory Committee’s Note, the 1993 amendment to the federal rule “makes clear that judgment as a matter of law may be entered against both plaintiffs and defendants and with respect to issues or defenses that may not be wholly dispositive of a claim or defense.”] Paragraph (a)(2) retains the requirement that a motion for judgment be made prior to the close of the trial, subject to renewal after a jury verdict has been rendered. The purpose of this requirement is to assure the responding party an opportunity to cure any deficiency in that party’s proof that may have been overlooked until called to the party’s attention by a late motion for judgment . . . . The second sentence of paragraph (a)(2) does impose a requirement that the moving party articulate the basis on which a judgment as a matter of law might be rendered. The articulation is necessary to achieve the purpose of the requirement that the motion be made before the case is submitted to the jury, so that the responding party may seek to correct any overlooked deficiencies in the proof . . . . The information required with the motion may be supplied by explicit reference to materials and argument previously supplied to the court. This subdivision deals only with the entry of judgment and not with the resolution of particular factual issues as a matter of law. The court may, as before, properly refuse to instruct a jury to decide an issue if a reasonable jury could on the evidence presented decide that issue in only one way. Subdivision (b). This provision retains the concept of the former rule that the post-verdict motion is a renewal of an earlier motion made at the close of the evidence . . . . A post-trial motion for judgment can be granted only on grounds advanced in the pre-verdict motion. E.g., Kutner Buick, Inc. v. American Motors Corp., 848 F.2d 614 (3d Cir. 1989). Often it appears to the court or to the moving party that a motion for judgment as a matter of law made at the close of the evidence should be reserved for a post-verdict decision. This is so because a jury verdict for the moving party moots the issue and because a preverdict ruling gambles that a reversal may result in a new trial that might have been avoided. For these reasons, the court may often wisely decline to rule on a motion for judgment as a matter of law made at the close of the evidence, and it is not inappropriate for the moving party to suggest such a postponement of the ruling until after the verdict has been rendered. In ruling on such a motion, the court should disregard any jury determination for which there is no legally sufficient evidentiary basis enabling a reasonable jury to make it. The court may then decide such issues as a matter of law and enter judgment if all other material issues have been decided by the jury on the basis of legally sufficient evidence, or by the court as a matter of law. The revised rule is intended for use in this manner with Rule 49. Thus, the court may combine facts established as a matter of law either before trial under Rule 56 or at trial on the basis of the evidence presented with other facts determined by the jury under instructions provided under Rule 49 to support a proper judgment under this rule. This provision also retains the former requirement that a post-trial motion under the rule must be made within 10 days after entry of a contrary judgment. The renewed motion must be served and filed as provided by Rule 5. A purpose of the requirement is to meet the requirements of [V.R.A.P. 4]. Subdivision (c). Revision of this subdivision conforms the language to the change in diction set forth in subdivision (a) of this revised rule. Subdivision (d). Revision of this subdivision conforms the language to that of the previous subdivisions.
Reporter’s Notes—1988 Amendment: Rule 50(b) is amended to avoid a pitfall for the unwary. Experienced practitioners know that, in order to preserve for appeal legal issues as to the sufficiency of evidence, a motion for directed verdict must be made at the close of all the evidence. This requirement is implicit in Rules 50(a) and (b) and explained in the Reporter’s Notes accompanying the original rule. See, e.g., Palmisano v. Townsend, 136 Vt. 372, 392 A.2d 393 (1978). A second requirement has been implicit in the rule but not widely recognized: a motion for judgment notwithstanding the verdict also must be made if denial of the directed verdict motion is to be appealed. Federal case law is unambiguous on this point, and the Vermont rule is identical. 5A Moore’s Federal Practice, § 50.12. Rule 50(b) is amended to make explicit this requirement. The amendment states that a motion for judgment notwithstanding the verdict “is necessary” to appeal from the denial or the failure to grant a motion for a directed verdict.
Reporter’s Notes: This rule is identical to Federal Rule 50 and is consistent with prior Vermont practice. Rule 50(a) follows former practice in providing that a motion for directed verdict may be made at the close of an opponent’s evidence or at the close of all the evidence, but denial of a motion made at the close of an opponent’s case does not deprive the moving party of the right to put in evidence, and the fact that both parties move for directed verdict does not withdraw the case from the jury. See Bacon v. Barber, 110 Vt. 280, 6 A.2d 9 (1939). Federal authorities applying Rule 50 are in accord with prior Vermont decisions holding that when a motion for directed verdict made at the close of an opponent’s case is denied, the question is waived unless the motion is renewed at the close of all the evidence. See 2B Barron & Holtzoff, Federal Practice and Procedure § 1074 (Wright ed. 1961); B & P Rambler & Sports Car Center v. Dawson, 126 Vt. 392, 233 A.2d 50 (1967); Berry v. Whitney, 125 Vt. 383, 217 A.2d 41 (1966). The requirement of the rule that the motion state the grounds therefor was also found in previous practice. See Granite Acceptance Corp. v. Fergnani, 116 Vt. 155, 71 A.2d 422 (1950). Thus, as held in Brunelle v. Coffey, 128 Vt. 367, 264 A.2d 782 (1970), a mere request to charge that the requesting party is entitled to a verdict is insufficient. See 2B Barron & Holtzoff, supra, § 1073. The final sentence of Rule 50(a) is intended to make clear that the court’s order is effective without formal assent from a jury which may be in disagreement with the result. See Advisory Committee’s Note to 1963 Amendment to Rule 50(a), 3A Barron & Holtzoff, supra, 271 (Supp. 1969). The rule does not affect the standard for granting a directed verdict. See Cheney v. Wheeler, 122 Vt. 295, 170 A.2d 642 (1961); McGrath v. Haines, 125 Vt. 49, 209 A.2d 479 (1965). The motion for judgment notwithstanding the verdict, or judgment n.o.v., provided by Rule 50(b) was well-known in Vermont practice. It raises the same issues after verdict that the motion for directed verdict does before. See Beaucage v. Russell, 127 Vt. 58, 238 A.2d 681 (1968); McGrath v. Haines, supra. Moreover, in a developing line of cases, the Court had taken the position embodied in Rule 50(b) that a motion for judgment n.o.v. was appropriate only when a timely motion for a directed verdict had previously been made. See Nauceder v. Howard, 127 Vt. 274, 247 A.2d 76 (1968); Stoneking v. Orleans Village, 127 Vt. 161, 243 A.2d 763 (1968); Skoll v. Cushman, 111 Vt. 160, 13 A.2d 180 (1940); 2B. Barron & Holtzoff, supra, § 1079. The rule enables the trial judge in effect to defer his decision on a motion for directed verdict until after verdict, thus eliminating a new trial if on review it is determined that the case should have gone to the jury. Id. §§ 1076, 1077. Rules 50(c) and (d) are intended to prevent the need for successive remands to the trial court where motions for judgment n.o.v. and new trial are joined and the trial court’s decision on the motion is reversed on appeal. See 2B Barron & Holtzoff, supra, § 1082. These provisions are necessary because Vermont recognizes the same distinction that the federal courts do between the grant of judgment n.o.v. on the grounds that the verdict is not supported by the evidence and grant of new trial on the grounds that the verdict is against the weight of the evidence. See Dashnow v. Myers, 121 Vt. 273, 155 A.2d 859 (1959).