K-MART CORPORATION v. Butler

486 So. 2d 426, 1986 Ala. LEXIS 3491

Opinion

This case involves claims based on negligence and on misrepresentation. At trial, at the close of all the evidence, appellant/defendant K-Mart made a motion for a directed verdict on the grounds that plaintiffs' evidence was insufficient to establish K-Mart's negligence and was insufficient to establish the alleged misrepresentation. The trial court denied the motion and sent the case to the jury on both counts. The jury returned a verdict against K-Mart, and the trial court entered judgment thereon. Without making any post-trial motions, K-Mart appealed to this Court.

On appeal, K-Mart argues that the trial court improperly denied its directed verdict motion because plaintiffs failed to make out a prima facie case on either count. Unfortunately, however, we cannot review the sufficiency of plaintiffs' evidence at the trial below, because when a defendant "[does] not move for a J.N.O.V. nor seek a new trial, the propriety of the trial court's failure to direct a verdict on the sufficiency of the plaintiff's evidence is not before us."McDonald's Corp. v. Grissom, 402 So.2d 953, 954 (Ala. 1981).See also, Great Atlantic Pacific Tea Co. v. Sealy,374 So.2d 877 (Ala. 1979). K-Mart makes no other arguments on appeal; therefore, the judgment appealed from is due to be, and it hereby is, affirmed.

AFFIRMED.

TORBERT, C.J., and JONES, SHORES and ADAMS, JJ., concur.