McBride v. Kieckhefer Associates, Inc – 1/27/2011

February 14, 2011

Arizona Court of Appeals Division One Holds That A Trial Court May Not Weigh Witness Credibility or Conflicting Evidence In Ruling on a Motion for Judgment As a Matter of Law, But May Do So In Deciding whether to Grant of a Motion for New Trial.

McBride sued Kieckhefer Associates, Inc., and others (“KAI”) for wrongful termination.  In defense, KAI argued that the statute of limitations had run on McBride’s claim.  McBride asserted that there was an oral tolling agreement in place.  The court ordered a bifurcated jury trial, and the first jury was charged with resolving whether the parties had agreed to toll the statute of limitations. 

At the close of evidence during the first jury trial, the judge denied KAI’s motion for judgment as a matter of law (“JMOL”) because the evidence was sufficient to reach a jury.  After deliberation, the jury found that there was a tolling agreement.  KAI then filed a renewed JMOL and “in the alternative, motion for new trial” under Rule 50(b).  The renewed motion added an argument that the jury’s finding of a tolling agreement should be set aside because it “was the result of passion or prejudice based on” counsel misconduct during the trial.  The court granted the renewed JMOL and dismissed the case with prejudice; alternatively, the court granted KAI a new trial on the tolling agreement pending appeal of the JMOL.

In a unanimous opinion, the Court of Appeals reversed as to the JMOL but affirmed the award of a new trial.  To reach this holding, the Court clarified the differing standards applied when reviewing and deciding motions for judgment as a matter of law and motions for new trial.  When deciding a JMOL, a trial court should not weigh the credibility of evidence or resolve conflicting evidence.  In contrast, the judge acts as a “thirteenth juror” who is entitled to weigh the evidence when deciding whether to grant a new trial.  On appeal, a JMOL is reviewed de novo.  A motion for new trial is reviewed using the more deferential abuse-of-discretion standard. 

First, the Court reversed the grant of the JMOL.  After reviewing conflicting testimony between the parties, the Court held that sufficient evidence existed to support the jury’s verdict on the tolling agreement.  Although KAI had presented considerable evidence disputing the existence of a tolling agreement, it was for the jury and not the judge to resolve the conflicting evidence.  Accordingly, the Court vacated the grant of judgment as a matter of law.

Second, although judgment as a matter of law was improper, the Court held that the trial court properly granted the alternative motion for new trial.  Applying the more deferential standard, the Court affirmed the trial court’s conclusions that a new trial was required because the verdict against KAI “did not achieve substantial justice.”  Consequently, the case was remanded for a new trial.

Judge Gemmill authored the opinion.  Judges Weisberg and Hall concurred.