K-MART CORPORATION v. Butler

486 So. 2d 426 (1986)

K-MART CORPORATION v. Bobby Joe BUTLER, et al.

No. 84-1041.

Supreme Court of Alabama.

March 28, 1986.

Amy K. Myers and William A. Scott, Jr., of Clark & Scott, Birmingham, for appellant.

D. Marcel Black, of Hewlett, Black & Marks, Tuscumbia, for appellees.

MADDOX, Justice.

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.