concurring. I agree that this case should be affirmed on direct appeal for the reasons set forth in the majority opinion. I also agree that the case should be reversed on cross-appeal, but I disagree that such reversal should be based, as the majority opinion holds, on the failure of the cross-appellee (King) to move for a directed verdict at the close of all the evidence on the issue of his entitlement to a prescriptive easement across Powell’s land. King, who was the defendant/counter-claimant below, raised the prescriptive-easement issue in a counterclaim against Powell. As the counter-claimant and proponent of the prescriptive-easement theory, King had the burden of proving that he had acquired, by prescription, the right to use what he alleged to be a roadway across Powell’s land.
At the trial, King produced evidence in an attempt to persuade the jury that he had acquired such a prescriptive easement, evidence that the jury apparently found unconvincing. After the entry of judgment in accordance with the jury’s verdict, the trial court granted King’s motion for judgment notwithstanding the verdict (JNOV), finding that “there was no evidence to substantiate the jury’s finding” that King had not proved a prescriptive easement, and ordering “that the defendant has established an easement by prescription across Plaintiffs land.”
On appeal, Powell argues that King was not entitled to JNOV because he had failed to move for a directed verdict on the prescriptive-easement issue at the close of all the evidence.
Arkansas Rule of Civil Procedure 50(e) (2003) provides, in part:
(e) Appellate Review. When there has been a trial by jury, the failure of a party to move for a directed verdict at the conclusion of all the evidence, because of insufficiency of the evidence will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the jury verdict.
It is implicit in the rule that a party need only move for a directed verdict when he considers the opponent’s evidence to be insufficient.1 Although Rule 50(e) refers to “a party,” it is nonsensical to interpret the rule to mean that a complainant (plaintiff or counter-claimant), who is the proponent of a cause of action and who has the burden of proof on the issue, must make a meaningless motion for directed verdict, which no court will ever grant2, to preserve for review the issue of whether his evidence is sufficient. A motion for directed verdict is, by definition, a challenge to the sufficiency of the evidence. Baughman v. State, 353 Ark. 1, 110 S.W.3d 740 (2003); The Bank of Eureka Springs v. Evans, 353 Ark. 438, 109 S.W.2d 672 (2003); Pettus v. McDonald, 343 Ark. 507, 36 S.W.3d 745 (2001); Peterson v. State, 81 Ark. App. 226, 100 S.W.3d 66 (2003).
I can think of no circumstance in which the proponent of a claim would move the court to declare that the proof he has presented in support of his claim was insufficient to prove his cause of action. Nor can I envision a case where a complainant would seek appellate review of a trial court’s improbable grant of a motion for directed verdict in his favor and argue to the appellate court that the trial court erred in finding that his evidence was sufficient to prove his claim. The only situation in which a complainant should logically be required to move for a directed verdict to preserve a sufficiency argument for appellate review is where he desires to challenge the sufficiency of the evidence of which his adversary was the proponent and had the burden of proof, such as when a counterclaim or affirmative defense has been asserted by the adversary. Rule 50(e) should be interpreted accordingly.
The conclusion that Rule 50(e) requires that, as a prerequisite to a complainant raising a sufficiency-of-the-evidence argument on appeal, he must move for a directed verdict on his case in chief, stems from Mikel v. Hubbard, 317 Ark. 125, 876 S.W.2d 558 (1994).3 However, an analysis of Mikel and the authorities relied upon in it reveals that Mikel contains no such holding. In Mikel, Doris Mikel claimed to be the owner of Lot 7 of the City of West Fort Smith on the east side of the Poteau River. In 1981 Lots 10 and 11, being a part of Lot 7, were purchased by Hubbard Marine Service, Inc., who constructed thereon a concrete drive and dock that extended into the river. Mikel, contending that the concrete drive 'and dock were on her land, filed suit in ejectment, thus having the burden to prove title to the land on the strength of her title and not upon the weakness of Hubbard’s claim. As an affirmative defense, Hubbard pleaded that it had acquired title to the land on which the concrete drive and dock were constructed through accretion to Lots 10 and 11. The jury returned a verdict in Hubbard’s favor and Mikel appealed, asserting six points for reversal, including an argument that the jury’s verdict was “not supported by a preponderance of the evidence.”
Although the supreme court disposed of the appeal by affirming on one of six points, the court saw fit to “briefly” discuss Mikel’s other five points. As for her preponderance-of-the-evidence argument, the court declined to consider it because
plaintiff did not move for a directed verdict on her case in chief, nor did she move for a directed verdict on Hubbard Marine’s affirmative defense. The sufficiency of the evidence was never raised in the trial court by plaintiff, and she cannot raise it for the first time on appeal.
317 Ark. at 129, 876 S.W. 2d at 560 (citing Ark. R. Civ. P. 50(e) and Willson Safety Prods. v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990)).
It should first be noted that in Mikel, Hubbard Marine had pleaded the affirmative defense of accretion, and that, to challenge the sufficiency of Hubbard’s evidence as to its affirmative defense, Mikel was required under Rule 50(e) to move for a directed verdict at the close of Hubbard’s case. Secondly, Willson Safety Prods. v. Eschenbrenner was a products liability case in which Willson, the appellant and defendant below, had moved for a directed verdict at the close of plaintiffs case but had failed to renew its motion at the close of all the evidence. Willson made no further challenge to the sufficiency of Eschenbrenner’s evidence until it moved for JNOV after the jury returned its verdict. On appeal, Willson, asserted four points for reversal, three of which were challenges to the sufficiency of the evidence. In declining to consider those three points, the court said: 302 Ark. at 232, 788 S.W.2d at 733 (emphasis added in first italicized phrase; emphasis in original “all”).
We believe that the intent of the rule is to require a party testing the sufficiency of the evidence to first submit the question to the trial court, thereby permitting the court to make a ruling at the conclusion of all the evidence but prior to verdict, thus preserving the specific question for appeal.
I cannot read Eschenbrenner as requiring a complainant, who is without any logical reason to test the sufficiency of his own evidence, to move for a directed verdict as a prerequisite to arguing on appeal that his evidence was sufficient to sustain a jury’s verdict or to move for JNOV. Likewise, I cannot believe that the loosely-worded dicta in Mikel is a declaration by our supreme court that Rule 50(e) requires the party who has the burden of producing the evidence to challenge its sufficiency as a prerequisite to arguing on appeal that his evidence was or was not sufficient to support or set aside a jury’s verdict.
For the foregoing reasons, I do not believe that King should be barred from arguing on appeal that the evidence that he presented in support of his claim to a prescriptive easement was sufficient to support JNOV in his favor, and I would reach the merits on the issue. However, on the merits, I agree that the trial court erred in granting JNOV in favor of King on the jury’s verdict that he failed to prove the existence of an easement by prescription.
Ark. R. Civ. P. 50(a) provides that “[a] party may move for a directed verdict at the close of the evidence offered by an opponent...”
While conceding that “such a motion will rarely succeed,” the majority cites no case in which a complainant’s or counter-claimant’s motion for directed verdict has ever been granted.
Also, in Southwestern Bell Tel. Co. v. Garner, 83 Ark. App. 226, 125 S.W.3d 844 (2003), the court of appeals cited Mikel and interpreted it to mean that Rule 50(e) required that the plaintiff, Southwestern Bell, move for a directed verdict on its claim of negligence against defendant, Garner, in order to preserve an argument on appeal that its evidence of Garner’s negligence was sufficient to warrant a jury verdict in its favor. The Garner court did not mention that in Mikel, Hubbard had asserted an' affirmative defense.