Louisiana injury lawyer Bob Downing (retired First Circuit Court of Appeal Judge) wrote the following article for the May 2011 issue of the Baton Rouge Bar Association’s monthly publication, Around the Bar, regarding the impropriety of appealing from the denial of a motion for directed verdict:
There should be no appeal from the denial of a motion for a directed verdict. Graves v. Riverwood International Corp., 41,810 (La.App. 2 Cir. 1/31/07), writ denied, 07-630 (La.5/4/07), 956 So.2d 621; See Adams v. Purciau, 417 So.2d 860 (La.App. 4th Cir.), writ denied, 422 So.2d 157 (La.1982); Varnado v. Ins. Co. of America, 484 So.2d 813 (La.App. 1st Cir.), writ denied, 489 So.2d 248 (La.1986); and Miller v. Upjohn Co., 461 So.2d 676 (La.App. 1st Cir.1984).
In reviewing the cases that state that the standard of review for the denial of a motion for directed verdict is the same for the granting of a motion for directed verdict, it appears that the error begins with Davis v. Board of Supervisors of Louisiana State University, 03-2219 (La. App. 4 Cir.11/17/04), 887 So.2d 722, writ denied, 04-3086 (La.2/18/05), 896 So.2d 40, which incorrectly cites Cross v. Cutter Biological, 94-1477 (La.App. 4 Cir.5/29/96), 676 So.2d 131, writ denied, 96-222- (La.1/10/97), 685 So.2d 142, a case dealing with the granting of a motion for directed verdict. Davis is in turn cited for this incorrect standard of review in Everhardt v. Louisiana Department of Transportation & Development, 07-0981 (La.App. 4 Cir. 2/20/08), 978 So.3d 1036.
Because Adams is the earlier panel of the Fourth Circuit Court of Appeal and the jurisprudence in a circuit cannot be changed by another panel without going en banc, then it appears that Pourciau is the correct statement of the law.
A defendant who introduces evidence after the denial of its motion for directed verdict is deemed to have abandoned the motion, and the evidence in the case is judged on the entirety of the record. Holloway v. Midland Risk Ins. Co., 36,262 (La.App. 2 Cir. 10/30/02), 832 So.2d 1004, writ denied, 02-3247 (La.3/28/03), 840 So.2d 571; Jackson v. Quick, 543 So.2d 552 (La.App. 4th Cir.), writ denied, 546 So.2d 1219 (La.1989); and Dunaway v. Rester Refrigeration Serv., 428 So.2d 1064 (La.App. 1 Cir.), writs denied, 433 So.2d 1056, 1057 (La.1983).
Because there is no appeal from the denial of a motion for directed verdict, it should not be assigned as an error on appeal. The proper recourse is an appeal of the judgment.