        IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA 


                                   January 2018 Term
                                    _______________
                                                                         FILED
                                      No. 17-0086                     June 12, 2018
                                    _______________                      released at 3:00 p.m.
                                                                     EDYTHE NASH GAISER, CLERK
                                                                     SUPREME COURT OF APPEALS
                              ALLEN V. MCINARNAY and                      OF WEST VIRGINIA

                               ARLENE S. MCINARNAY,
                              Defendants Below, Petitioners

                                           v.

                           PEGGY T. HALL,

                FRANK HALL, RUSSELL TESTERMAN, JR.

        ISAAC RIVER TESTERMAN, and CECILIA LEE TESTERMAN, 

                      Plaintiffs Below, Respondents 


         ________________________________________________________

                 Appeal from the Circuit Court of Monroe County

                     The Honorable Robert A. Irons, Judge 

                        Civil Action No. CC-32-2006-C-35 


                       REVERSED AND REMANDED 

         ________________________________________________________

                              Submitted: January 10, 2018
                                 Filed: June 12, 2018

John H. Bryan, Esq.                         David L. Ziegler, Esq.
Union, West Virginia                        Anna R. Ziegler, Esq.
Counsel for the Petitioners                 Elise A. Keaton, Esq.
                                            Ziegler & Ziegler, L.C.
                                            Hinton, West Virginia
                                            Counsel for the Respondents


JUSTICE KETCHUM delivered the Opinion of the Court.

JUSTICE LOUGHRY suspended and therefore not participating.
                            SYLLABUS BY THE COURT


              1.    “Abandonment of an easement . . . is a question of intention that

may be proved by nonuse combined with circumstances which evidence an intent to

abandon the right. It is the burden of the party asserting the absence of an easement by

prescription to prove abandonment by clear and convincing evidence.” Syllabus Point 2,

in part, Strahin v. Lantz, 193 W.Va. 285, 456 S.E.2d 12 (1995).

              2.    “An interpretation of the West Virginia Rules of Civil Procedure

presents a question of law subject to a de novo review.” Syllabus Point 4, Keesecker v.

Bird, 200 W.Va. 667, 490 S.E.2d 754 (1997).

              3.    “Although the ruling of a trial court in granting or denying a motion

for a new trial is entitled to great respect and weight, the trial court’s ruling will be

reversed on appeal when it is clear that the trial court has acted under some

misapprehension of the law or the evidence.” Syllabus Point 4, Sanders v. Georgia-

Pacific Corp., 159 W.Va. 621, 225 S.E.2d 218 (1976).

              4.    “To preserve an issue for appellate review, a party must articulate it

with such sufficient distinctiveness to alert a circuit court to the nature of the claimed

defect.” Syllabus Point 2, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d

162 (1996).

              5.    Under the WEST VIRGINIA RULES OF CIVIL PROCEDURE [1998],

when a party has failed during a jury trial to make a motion for judgment as a matter of

law under Rule 50(a) challenging the sufficiency of the evidence, that party has waived

the right to mount any post-trial attack on the sufficiency of the evidence under Rule

                                            i
50(b). Additionally, if the party moves for a new trial under Rule 59 and attempts to

challenge the sufficiency of the evidence supporting the verdict, then the scope of review

of the motion is confined to whether there was any evidence to support the jury’s verdict,

irrespective of its sufficiency, and which, if not addressed by the court, would result in a

manifest miscarriage of justice.




                                             ii
Justice Ketchum:

                   When an error occurs during a trial, a basic rule of trial practice is that a

party must promptly lodge an objection to the error. By objecting, the party alerts the

opposing party and the judge of the error so it may be corrected before the jury renders a

verdict. A party’s failure to object usually waives the right to complain about the error

after the trial.

                   The plaintiff in this appeal proved she had a written easement to cross the

defendants’ land, but the defendants countered with evidence that the plaintiff had legally

abandoned the written easement through decades of nonuse. The plaintiff claims the

defendants failed to introduce sufficient evidence to support their abandonment theory.

However, during two days of trial, the plaintiff never made any objection or motion that

challenged the sufficiency of the defendants’ evidence. The jury returned a verdict in

favor of the defendants and concluded there was clear and convincing evidence that the

plaintiff abandoned the written easement.

                   After the trial, the plaintiff filed a motion seeking a new trial, and for the

first time objected to the sufficiency of the evidence offered by the defendants. Acting on

the plaintiff’s motion, the circuit court set aside the jury’s verdict for insufficient

evidence and granted the plaintiff a new trial.

                   We reverse. Under the WEST VIRGINIA RULES OF CIVIL PROCEDURE, a

motion challenging the sufficiency of the evidence must be lodged at trial, before the jury

returns a verdict. Because the plaintiff made no such motion at trial in this case, the

circuit court could only grant a new trial if there was absolutely no evidence to support

                                                  1

the jury’s verdict. Because the jury’s verdict has support in the record, the circuit court

abused its discretion in setting aside the jury’s verdict and in granting a new trial.



                                   I. 

                  FACTUAL AND PROCEDURAL BACKGROUND 


              Plaintiff Peggy T. Hall1 is an adjoining landowner with the defendants,

Allen and Arlene McInarnay. Their adjoining tracts are located in Monroe County, West

Virginia.

              Over a century ago, at the beginning of the twentieth century, the parties’

tracts were part of a larger parcel owned by L.S. Riffe (“Mr. Riffe”). In 1908, Mr. Riffe

carved out a smaller tract of land2 that he deeded to Matilda L.V. Riffe (“Ms. Riffe”).

The deed contained the following language reserving a right-of-way across Ms. Riffe’s

tract to Mr. Riffe’s: “it is further agreed that their [sic] shall be a free road through the




              1
              When this case was filed in 2006, Peggy T. Hall was the sole plaintiff and
sole owner of the land. She acquired the property in 1976 from her parents, Russell E.
and Gladys T. Testerman (who themselves had acquired it in 1958). In 2011, plaintiff
Hall deeded interests in the land to Russell Testerman, Jr., Isaac River Testerman, and
Cecilia Lee Testerman, but reserved a life estate for herself and her husband, Frank Hall.
She amended her complaint in 2014 to add these additional owners as plaintiffs.
However, for the ease of the reader, we refer to Mrs. Hall as the singular owner of the
land.
              2
                The 1908 deed indicates the tract contained 100 acres. Later conveyances
stipulate the tract contained 90 acres. However, in 1975, after a detailed survey, a deed
stated the tract actually contained 109.17 acres. The McInarnays purchased the 109.17
acre tract on February 11, 2005.


                                              2

above named land to the out side lines or County Road. . .” This “free road” language in

the 1908 deed is the source of the parties’ dispute.

              Mrs. Hall owns the land formerly owned by Mr. Riffe; the McInarnays own

the smaller tract conveyed to Ms. Riffe in 1908 which had the “free road” running across

it. The circuit court ruled that the “free road” language created an express easement for

ingress and egress to Mrs. Hall’s land across the McInarnays’ land. The parties agreed,

based on surveys and an aerial photo from the 1940s, on the location of the original “free

road” across the McInarnays’ land to Mrs. Hall’s land. However, undisputed evidence

showed that the passage of time has largely eradicated the “free road.” There is a gate

blocking access to the “free road” where the ancient roadbed separates from the modern

road and enters the McInarnays’ land. Beyond the gate, the roadbed is overgrown with

trees and cut by a creek with no bridge. Farther along, the old roadbed runs through what

is now a pond and marsh grasses where the pond drains. Nearer to Mrs. Hall’s tract, trash

and a heap of debris block the old roadbed.

              Mrs. Hall and her family have access to their property from a modern road.

However, she brought the instant suit demanding an alternative access across the

McInarnays’ land. In a two-day trial, Mrs. Hall sought to exercise the “free road” clause

in the 1908 deed to establish a new and different route across the McInarnays’ land. Mrs.

Hall introduced testimony from various individuals who had crossed the McInarnays’

tract, using a path different from the old “free road,” on a handful of occasions in the

previous four decades.



                                              3

              The McInarnays, however, asserted that Mrs. Hall had abandoned the 1908

easement. “Abandonment of an easement . . . may be proved by nonuse combined with

circumstances which evidence an intent to abandon” the easement.3 Abandonment must

be proven by clear and convincing evidence.4

              The evidence at trial indicated that neither Mrs. Hall nor her family nor her

predecessors had used the “free road” in recent decades. For instance, the prior owner of

the McInarnays’ land testified that, in her twenty-five years of owning the property, she

never once saw the Hall family cross the property, let alone use the “free road.” The

prior owner said when she bought the tract in 1980 there was no visible evidence of the

old roadbed. A neighbor told her about the old road that, in the distant past, ran across

the land, but she did not know its location.

              Furthermore, defendant Allen McInarnay testified he walked the land

before he bought it in 2005 and saw no evidence of the old “free road,” and no evidence

any third parties were crossing the land. Mr. McInarnay testified he bought the property

to use as an alpaca farm, and said that he would not have bought the property if he saw

evidence of third parties using the property as a roadway.

              Rule 50(a) of the WEST VIRGINIA RULES OF CIVIL PROCEDURE [1998]

establishes the procedure a party must use if, at trial, the opposing party fails to produce

sufficient evidence on a question. Rule 50(a) provides that, “If during a trial by jury a

              3
                  Syllabus Point 2, Strahin v. Lantz, 193 W.Va. 285, 456 S.E.2d 12 (1995).
              4
                  Id.


                                               4

party has been fully heard on an issue and there is no legally sufficient evidentiary basis

for a reasonable jury to find for that party on that issue,” then the opposing party must

object to the lack of evidence by making a motion for judgment as a matter of law.

However, during the trial, counsel for Mrs. Hall never made such a motion regarding the

sufficiency of the McInarnays’ evidence on the issue of abandonment of the easement.

             The jury returned a verdict finding “that the right of way to the Hall

property, over the McInarnay property, has been terminated by abandonment, and that the

Hall[s] have no right of way over the McInarnay property.” The parties do not dispute

that the jury was properly instructed that it could find in the McInarnays’ favor only if

there was clear and convincing evidence the easement had been abandoned.

             Mrs. Hall promptly filed a motion for judgment as a matter of law under

Rule 50 or, in the alternative, a new trial. Mrs. Hall argued that the “evidence presented

by the [McInarnays] is clearly insufficient to support a jury verdict extinguishing the

easement because of abandonment by the [Halls].” Specifically, Mrs. Hall contended

there was no evidence presented to suggest that the Hall family intended to abandon the

easement.

             In an order entered December 28, 2016, the circuit court recognized that

Mrs. Hall had failed to object to the sufficiency of the evidence at trial as required by




                                            5

Rule 50(a). The circuit court therefore found that it was “powerless” to consider a post-

trial motion for judgment as a matter of law to weigh the sufficiency of the evidence.5

              Still, the circuit court found it could consider a sufficiency of the evidence

objection, one first raised after trial, under Rule 59 (which permits circuit courts to grant

a new trial). The circuit court noted that the Halls “conceded they rarely used the

roadway across the lands of” the McInarnays, and found “there was ample evidence at

trial concerning nonuse of the right of way[.]” The circuit court determined, however,

that the evidence was not sufficient to prove that the Halls “ever had any intention to

abandon the easement created by the 1908 deed.” The circuit court concluded that the

verdict was “against the clear weight of the evidence and will result in a miscarriage of

justice and, as such, that grounds for a new trial exist[.]” The circuit court granted the

motion for a new trial regarding whether the easement “has been terminated by

abandonment by the [Halls,] . . . and if not abandoned, its exact current location.”

              The McInarnays now appeal the circuit court’s order granting the Halls a

new trial under Rule 59.




              5
               Rule 50(b) of the RULES OF CIVIL PROCEDURE only permits a movant to
“renew the request for judgment as a matter of law” regarding the legally sufficient
evidentiary basis for a question. As we discuss later in this opinion, the failure to make a
preverdict motion under Rule 50(a) generally precludes any postverdict motion under
Rule 50(b). See Syllabus Point 5, Huffman v. Appalachian Power Co., 187 W.Va. 1, 415
S.E.2d 145 (1991).


                                             6

                                        II.

                                STANDARD OF REVIEW


              Review of the circuit court’s order requires us to weigh the circuit court’s

interpretation of Rule 50 and Rule 59 of the WEST VIRGINIA RULES OF CIVIL

PROCEDURE. “An interpretation of the West Virginia Rules of Civil Procedure presents a

question of law subject to a de novo review.”6

              We must also examine the circuit court’s overall decision to grant the

motion for a new trial. “This Court reviews the rulings of the circuit court concerning a

new trial and its conclusion as to the existence of reversible error under an abuse of

discretion standard[.]”7 “Although the ruling of a trial court in granting or denying a

motion for a new trial is entitled to great respect and weight, the trial court’s ruling will

be reversed on appeal when it is clear that the trial court has acted under some

misapprehension of the law or the evidence.”8 “[A] trial judge should rarely grant a new

trial. . . . Indeed, a new trial should not be granted unless it is reasonably clear that

prejudicial error has crept into the record or that substantial justice has not been done.”9

              6
                  Syllabus Point 4, Keesecker v. Bird, 200 W.Va. 667, 490 S.E.2d 754
(1997).
              7
              Syllabus Point 1, in part, Burke-Parsons-Bowlby Corp. v. Rice, 230 W.Va.
105, 736 S.E.2d 338 (2012).
              8
              Syllabus Point 4, Sanders v. Georgia-Pacific Corp., 159 W.Va. 621, 225
S.E.2d 218 (1976).
              9
                 Morrison v. Sharma, 200 W.Va. 192, 194, 488 S.E.2d 467, 469 (1997)
(citing In re State Public Bldg. Asbestos Litigation, 193 W.Va. 119, 124, 454 S.E.2d 413,
418 (1994)) (cleaned up, emphasis added).


                                              7

                                           III.

                                        ANALYSIS


              This case involves the interplay between two rules of civil procedure: Rule

50, which is triggered when a party asserts at trial that a “legally sufficient evidentiary

basis” has not been offered on an issue; and Rule 59, which pertains to motions for a new

trial. On the one hand, the McInarnays argue that Rule 50 and Rule 59 are intertwined

such that, if a party fails to challenge the sufficiency of the evidence at trial under Rule

50, then the party generally cannot seek a new trial on the same ground under Rule 59.

On the other hand, Mrs. Hall asserts that Rule 59 operates independently of Rule 50 and

that a circuit court can grant a party’s motion for a new trial for insufficient evidence,

even if that party never challenged the sufficiency of the evidence at trial as required by

Rule 50.


                                  A. Rule 50(a) and (b)

              We begin with Rule 50, and focus our discussion on paragraphs (a) and (b)

of the rule. First, Rule 50(a) of the RULES OF CIVIL PROCEDURE [1998] authorizes a party

to make what is generally referred to as a “preverdict” motion for a judgment as a matter

of law. Rule 50(a) mandates that any challenge to the sufficiency of the evidence must

be raised “during a trial by jury,” at any time before the trial court submits the case to the

jury.10 If a party fails to produce sufficient evidence, and “fails to establish a prima facie


              10
                Louis J. Palmer, Jr., Robin Jean Davis, Litigation Handbook on West
Virginia Rules of Civil Procedure 1183 (5th ed. 2017) (“Rule 50(a)(2) states that motions
for judgment as a matter of law may be made at any time before submission of the case to
                                                                           Continued . . .
                                              8

right to recovery,” then upon motion under Rule 50(a) the trial court may enter judgment

in favor of the opposing party.11 The rule provides:

                     (1) If during a trial by jury a party has been fully heard
              on an issue and there is no legally sufficient evidentiary basis
              for a reasonable jury to find for that party on that issue, the
              court may determine the issue against that party and may
              grant a motion for judgment as a matter of law against that
              party with respect to a claim or defense that cannot under the
              controlling law be maintained or defeated without a favorable
              finding on that issue.

                    (2) Motions for judgment as a matter of law may be
              made at any time before submission of the case to the jury.
              Such a motion shall specify the judgment sought and the law
              and the facts on which the moving party is entitled to the
              judgment.12

              Second, Rule 50(b) allows the party who made the Rule 50(a) motion at

trial to renew it after the jury returns its verdict. A motion under Rule 50(b) is sometimes

referred to as to as a “postverdict” motion and, if granted, allows a trial court to order a

new trial or enter a judgment as a matter of law. A renewed motion made under Rule

50(b) must be limited to the issues raised in the movant’s preverdict Rule 50(a) motion.

Rule 50(b) provides:


the jury. Such a motion must specify the judgment sought and the law and the facts on
which the moving party is entitled to the judgment.”)
              11
                Syllabus Point 3, Roberts v. Gale, 149 W.Va. 166, 139 S.E.2d 272 (1964)
(“When the plaintiff’s evidence, considered in the light most favorable to him, fails to
establish a prima facie right to recovery, the trial court should direct a verdict in favor of
the defendant”). Accord, Syllabus Point 1, Brannon v. Riffle, 197 W.Va. 97, 475 S.E.2d
97 (1996).
              12
                   W.VA.R.CIV.PRO. 50(a).


                                              9

                      If, for any reason, the court does not grant a motion for
              judgment as a matter of law made at the close of all the
              evidence, the court is considered to have submitted the action
              to the jury subject to the court’s later deciding the legal
              questions raised by the motion. The movant may renew the
              request for judgment as a matter of law by filing a motion no
              later than 10 days after entry of judgment and may
              alternatively request a new trial or join a motion for a new
              trial under Rule 59. In ruling on a renewed motion, the court
              may:

              (1) If a verdict was returned:

                       (A) allow the judgment to stand,

                       (B) order a new trial, or

                       (C) direct entry of judgment as a matter of law; or

              (2) if no verdict was returned:

                       (A) order a new trial, or

                       (B) direct entry of judgment as a matter of law.13

              The reason Rule 50 requires a motion “be made prior to the submission of

the case to the jury ‘is to assure the responding party an opportunity to cure any

deficiency in that party’s proof that may have been overlooked until called to the party’s

attention by a late motion for judgment.’”14 Inherent in Rule 50 is “the intent to place the

primary responsibility on the trial judge to determine the sufficiency of the evidence.”15

              13
                   W.Va.R.Civ.Pro. 50(b). 

              14
             Piesco v. Koch, 12 F.3d 332, 340 (2d Cir. 1993) (quoting the 1991 

Advisory Committee Note to amendment of Fed.R.Civ.P. 50).
              15
                   Black v. Black, 469 So.2d 1288, 1289 (Ala. 1985).


                                               10 

Of course, a judge is not required to examine the sufficiency of the trial evidence on his

or her own accord, but must act only when a party raises an objection. Moreover, “[t]o

preserve an issue for appellate review, a party must articulate it with such sufficient

distinctiveness to alert a circuit court to the nature of the claimed defect.”16 “The rule in

West Virginia is that parties must speak clearly in the circuit court, on pain that, if they

forget their lines, they will likely be bound forever to hold their peace.”17

              Hence, a party’s failure to make a preverdict motion challenging the

sufficiency of the evidence, as required by Rule 50(a), completely waives the party’s

right to make the same challenge to the sufficiency of the evidence after the trial under

Rule 50(b).18 The failure to make the preverdict motion also forecloses the right to raise

an insufficient evidence challenge on appeal.19 Put succinctly, it is “well settled” that in


              16
               Syllabus Point 2, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470
S.E.2d 162 (1996).
              17
                Id., 196 W.Va. at 216, 470 S.E.2d at 170. See also Syllabus Point 1,
Maples v. W.Va. Dep’t of Commerce, Div. of Parks & Recreation, 197 W.Va. 318, 475
S.E.2d 410 (1996) (“A litigant may not silently acquiesce to an alleged error, or actively
contribute to such error, and then raise that error as a reason for reversal on appeal.”).
              18
                Syllabus Point 5, in part, Huffman v. Appalachian Power Co., 187 W.Va.
1, 415 S.E.2d 145 (1991) (“In order to assert a motion for judgment [as a matter of law] .
. . under Rule 50(b) of the West Virginia Rules of Civil Procedure, a defendant must
move for a [judgment as a matter of law] . . . at the close of the plaintiff’s case and assert
therein the insufficiency of the evidence to establish a prima facie case. . . .”)
              19
               Syllabus Point 5, W.Va. Dep’t of Transp., Div. of Highways v. Newton,
235 W.Va. 267, 773 S.E.2d 371 (2015) (“A party’s failure to file a post-verdict motion
for judgment as a matter of law under Rule 50(b) of the West Virginia Rules of Civil
Procedure precludes this Court from reviewing an insufficiency of the evidence claim.”).


                                              11 

the absence of a motion for judgment as a matter of law under Rule 50(a), “the

sufficiency of the evidence supporting the jury’s findings is not reviewable on appeal”

because appellate courts “simply do not directly review jury verdicts.”20 “The policy

underlying this rule is sound: a party is not permitted to gamble on the verdict and later

question the sufficiency of the evidence that led to his defeat.”21

              At trial, Mrs. Hall’s counsel did not object to the sufficiency of the

McInarnays’ evidence about abandonment of the easement, as required by Rule 50(a).

Her counsel filed no motion for judgment as a matter of law on the question, nor did her

counsel otherwise lodge any objection or complaint to alert the trial court or the

McInarnays to supposed problems with the sufficiency of the McInarnays’ proof.

Instead, Mrs. Hall’s counsel was silent and waited until after the verdict to challenge the

              20
               Bristol Steel & Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 187
(4 Cir. 1994) (quoting Coughlin v. Capitol Cement Co., 571 F.2d 290, 294-95 (5th Cir.
  th

1978). There are two reasons behind this rule:

              First, the appellate courts will not review issues on appeal that
              were not properly raised in the trial court. Second, and
              perhaps more fundamental, the function of the appellate court
              is to review actions taken by the trial court, not actions of the
              jury itself.

Tights, Inc. v. Acme-McCrary Corp., 541 F.2d 1047, 1058 (4th Cir. 1976). “Generally
speaking, appellate courts do not directly review the actions of juries; they review a trial
judge’s assessment of the work of the jury through a motion for judgment as a matter of
law, allowing the trial judge who had a ring-side view of the witnesses to make a first cut
on whether one side or another must prevail on the claim.” Maxwell v. Dodd, 662 F.3d
418, 420 (6th Cir. 2011).
              21
              Bristol Steel & Iron Works, 41 F.3d at 187 (quoting Coughlin v. Capitol
Cement, 572 F.2d at 297).


                                              12 

sufficiency of the evidence through a Rule 50(b) motion. However, because of her

failure to file a preverdict motion as required by Rule 50(a), the circuit court correctly

concluded that Mrs. Hall was precluded from pursuing a Rule 50(b) postverdict motion

alleging insufficiency of the evidence.

              Accordingly, our law is clear that Mrs. Hall cannot pursue a new trial or a

judgment as a matter of law under Rule 50(b) on the ground of insufficient evidence.

The question we must now address is this: can she still seek a new trial on the ground of

insufficient evidence under Rule 59?


                                          B. Rule 59

              The circuit court concluded that Mrs. Hall could challenge the sufficiency

of the McInarnays’ evidence under Rule 59. Rule 59(a)(1) of the RULES OF CIVIL

PROCEDURE [1998] provides that “[a] new trial may be granted to all or any of the parties

and on all or part of the issues[.]” “If the trial judge finds the verdict is against the clear

weight of the evidence, is based on false evidence or will result in a miscarriage of

justice, the trial judge may set aside the verdict, even if supported by substantial

evidence, and grant a new trial.”22 “Courts do not grant new trials unless it is reasonably

clear that prejudicial error has crept into the record or that substantial justice has not been




              22
               Syllabus Point 3, in part, In re State Pub. Bldg. Asbestos Litig., 193
W.Va. 119, 454 S.E.2d 413 (1994).


                                              13 

done, and the burden of showing harmful error rests on the party seeking the new trial.”23

Moreover, when the evidence at trial is conflicting, the circuit court’s deliberation about a

new trial must recognize that it was the province of the jury to resolve the conflict. The

circuit court should not disturb the jury’s verdict unless it is plainly wrong.24

              The McInarnays contend the circuit court erred in granting a new trial.

They argue that this case is controlled by our discussion in Chambers v. Smith,25 a 1973

case procedurally similar to the instant case. At trial, the defendant in Chambers failed to

make a proper motion at trial challenging the sufficiency of the evidence as required by

Rule 50(a).26 We concluded that the defendant’s failure to comply with the requirements


              23
               11 Charles Alan Wright, Arthur R. Miller, et al., Federal Practice &
Procedure, Civil, § 2803 (3d ed. 2018).
              24
                  See, e.g., Syllabus Point 2, French v. Sinkford, 132 W.Va. 66, 54 S.E.2d
38 (1948) (“Where, in the trial of an action at law before a jury, the evidence is
conflicting, it is the province of the jury to resolve the conflict, and its verdict thereon
will not be disturbed unless believed to be plainly wrong.”); Syllabus Point 3, Long v.
City of Weirton, 158 W. Va. 741, 741, 214 S.E.2d 832, 837 (1975) (“It is the peculiar and
exclusive province of the jury to weigh the evidence and to resolve questions of fact
when the testimony is conflicting.”); McNeely v. Frich, 187 W.Va. 26, 29, 415 S.E.2d
267, 270 (1992) (per curiam) (“A jury’s verdict is accorded great deference when it
involves the jury weighing conflicting evidence[.]”).
              25
                   Chambers v. Smith, 157 W.Va. 77, 198 S.E.2d 806 (1973).
              26
                 The current version of Rule 50(a)(2) (adopted by this Court in 1998)
requires motions for judgment as a matter of law to be made “at any time before
submission of the case to the jury.” However, the version of Rule 50 in effect in 1973 in
Chambers v. Smith required preverdict motions for a “directed verdict” be made twice:
“at the close of the evidence offered by an opponent” and again “at the close of all the
evidence.” See Marlyn E. Lugar and Lee Silverstein, “West Virginia Rules of Civil
Procedure,” 373 (1960) (“From this discussion it is apparent that practitioners will be
familiar with the use of a motion [for a directed verdict] under Rule 50(a) at the close of
                                                                            Continued . . .
                                              14 

of Rule 50(a) and make a preverdict motion “constitutes a waiver of the objection to the

sufficiency of the evidence[.]”27 Additionally, we said that the failure to make a proper

preverdict motion under Rule 50(a) precludes appellate review of the sufficiency of the

evidence and “we must assume that the evidence supports the verdict.”28 We said in

Chambers:

             It is well established that the sufficiency of the evidence is not
             reviewable on appeal unless a motion for a directed verdict
             was made in the trial court. There are sound reasons for this
             rule. The party who makes no motion for a directed verdict
             must be of the view that the evidence makes a case for the
             jury and should not be permitted to impute error to the court
             for sharing that view. The appellate court, therefore, is
             powerless to review the sufficiency of the evidence to support
             the verdict if the appellant made no motion for a directed
             verdict. The only exception is where the insufficiency of the
             evidence constitutes plain error apparent on the face of the
             record which if not noticed would result in a manifest
             miscarriage of justice. Even if a motion for a new trial is
             made for insufficiency of the evidence, the failure to move for
             a directed verdict forecloses the question on appeal. A party
             may not gamble on the verdict and later question the
             sufficiency of the evidence.29



the plaintiff’s evidence and at the close of all the evidence.”). The defendant in
Chambers made the motion objecting to the sufficiency of the evidence at the close of the
plaintiff’s evidence but failed to “renew such motion after all the evidence was in.” 157
W.Va. at 80, 198 S.E.2d at 809. Under the current version of Rule 50(a), the defendant’s
actions in Chambers would have been sufficient.
             27
                  Syllabus Point 1, in part, Chambers, 157 W.Va. at 77, 198 S.E.2d at 807.
             28
                  157 W.Va. at 81, 198 S.E.2d at 809.
             29
               157 W.Va. at 81, 198 S.E.2d at 809 (quoting 2B Barron & Holtzhoff,
Federal Practice & Procedure § 1081).


                                             15 

              The Court’s discussion in Chambers centered on Rule 50. However, the

defendant in Chambers – like Mrs. Hall’s counsel in this case – argued his motion sought

a new trial “pursuant to ‘Rules 50(b) and 59, R.C.P.’”30 We succinctly rejected the

defendant’s attempt to pursue relief under Rule 59 thusly: “While we have expressed the

view that [the defendant’s] motion was made pursuant to Rule 50(b), R.C.P., we are of

the opinion that, in the posture of this record, the defendant, even under Rule 59, could

not receive the alternative relief of obtaining a new trial.”31

              The McInarnays argue that because of her counsel’s failure to comply with

Rule 50(a), Mrs. Hall could not receive the alternative relief of obtaining a new trial

under Rule 59. Rule 50(a) required Mrs. Hall to object, at trial, to the sufficiency of the

evidence regarding abandonment of the easement. The McInarnays contend that Mrs.

Hall’s failure to object or make any such motion was tantamount to an admission that the

evidence was sufficient to create a jury question. Mrs. Hall gambled on the verdict and

lost, and in so doing, waived her right to seek any postverdict relief based on insufficient

evidence. The McInarnays assert that this Court should follow Chambers and hold that,



              30
                   Chambers, 157 W. Va. at 82, 198 S.E.2d at 810.
              31
                  Id. Accord, Cline v. Joy Mfg. Co., 172 W.Va. 769, 775, 310 S.E.2d 835,
841 (1983) (McGraw, C.J., dissenting) (“[T]he defendant in this case failed to renew its
motion for [judgment as a matter of law] . . . at the close of all the evidence. The direct
result of that failure, as the majority recognizes, is that the defendant thereby waived any
‘objection to the sufficiency of the evidence . . . .’ Syl. pt. 1, Chambers v. Smith, 157
W.Va. 77, 198 S.E.2d 806, 809 (1973). This rule is not only parallel to the federal rule,
as the majority indicates, but it is also by far the rule in the majority of jurisdictions.”).


                                              16 

because the Halls failed to challenge the sufficiency of evidence at trial under Rule 50,

she cannot receive the alternative relief of a new trial under Rule 59. We agree.

              In order to move for a new trial under Rule 59 based on insufficient

evidence, a number of courts have concluded that a party must have previously moved

for judgment as a matter of law under Rule 50(a).32 For instance, in Yohannon v. Keene

Corporation, the court concluded that, “on sufficiency,” the failure to move for judgment

as a matter of law under Rule 50(a) “does more than limit an aggrieved party’s remedy to


              32
                 See, e.g., ING Glob. v. United Parcel Serv. Oasis Supply Corp., 757 F.3d
             nd
92, 96-97 (2 Cir. 2014) (party could not pursue Rule 59 motion that “was substantively
identical to judgment as a matter of law under Rule 50” because it violated “the carefully
crafted structure and standards of Rule[] 50[.]”); Wal-Mart Stores, Inc. v. Tucker, 353
Ark. 730, 737-38, 120 S.W.3d 61, 65-66 (2003) (discussing rule that a “party must test
the sufficiency of the evidence by motions” under Rule 50 and “not by a motion for new
trial.”); Union Carbide Chemicals & Plastics Tech. Corp. v. Shell Oil Co., 308 F.3d
1167, 1184 n.7 (Fed. Cir. 2002) (“”In order to move for a new trial on the basis of
insufficient evidence, a party must have previously moved for JMOL at the close of
evidence under Rule 50(a).”); Gopher Oil Co. v. Union Oil Co. of California, 955 F.2d
519, 526 (8th Cir. 1992) (“Union’s failure to move for a directed verdict or judgment
notwithstanding the verdict operated as a waiver of Union’s right to challenge the jury’s
findings as unsupported by substantial evidence.”); Yohannon v. Keene Corp., 924 F.2d
1255 (3rd Cir. 1991) (a failure to move for judgment under Rule 50(a) wholly waives the
right to mount any posttrial attack on the sufficiency of the evidence); Ball v. Am.
Greetings Corp., 752 S.W.2d 814, 819 (Mo. Ct. App. 1988) (“The neglect to move for a
directed verdict . . . waives any contention that the plaintiff failed to prove a submissible
case or that the court erred in the denial of the motion for judgment notwithstanding the
verdict.”); Int’l Fid. Ins. Co. v. Wilson, 387 Mass. 841, 846, 443 N.E.2d 1308, 1312
(1983) (“It is an established rule that an ‘appellate court cannot review the sufficiency of
the evidence in the absence of an effective motion for a directed verdict.’” (citation
omitted)); Scheib v. Williams-McWilliams Co., 628 F.2d 509, 512 (5th Cir. 1980) (“When,
as in this case, a motion for a new trial has been made on the ground of insufficient
evidence to support the verdict and the like, the failure by the losing party to move for a
directed verdict . . . still operates to foreclose consideration of the question of sufficiency
on appeal[.]”).


                                              17 

a new trial. In this Circuit, it wholly waives the right to mount any post-trial attack on the

sufficiency of the evidence.”33 The Yohannon court reasoned that a party’s failure to

challenge the sufficiency of the evidence at trial under Rule 50(a) “foreclosed its right to

raise on appeal any issue as to the sufficiency of the evidence. . . . The court below may

not be held to have erred on an issue which was not properly raised.”34

              The Yohannon court observed that a party who fails to make a Rule 50(a)

sufficiency motion is not entirely foreclosed from relief. Courts may excuse a party’s

failure to make a proper Rule 50(a) motion, and can grant a new trial for insufficient

evidence under Rule 59, using one of three narrow exceptions: when it would prevent a

manifest injustice; when no evidence whatsoever supports the jury’s verdict; or when the

court can reinterpret the motion as a different motion.35 West Virginia first recognized


              33
                   Yohannon v. Keene Corp., 924 F.2d 1255, 1262 (3rd Cir. 1991).
              34
              Id. (quoting Gebhardt v. Wilson Freight Forwarding Co., 348 F.2d 129,
      rd
132 (3 Cir. 1965)).
              35
                   The Yohannon court stated:

              The exceptions . . . can be grouped into three categories: (1)
              the “manifest injustice” exception, see Irvin Jacobs & Co. v.
              Fidelity & Deposit Co., 202 F.2d 794, 799 (7th Cir.1953)
              (noting that “[u]nder well established principles, the
              sufficiency of the evidence to support the verdict is not
              preserved for review unless this is one of those exceptional
              cases which render inapplicable the general rule.”) (citations
              omitted); United States v. Harrell, 133 F.2d 504, 507 (8th
              Cir.1943) (recognizing that “a federal appellate court, in order
              to prevent a manifest miscarriage of justice, may notice an
              apparent error not properly raised on the record”); (2) the “no
              evidence” exception, see Hinojosa v. City of Terrell, 834 F.2d
                                                                              Continued . . .
                                                18 

one of those exceptions in Chambers, stating that the “only exception is where the

insufficiency of the evidence . . . if not noticed would result in a manifest miscarriage of

justice.”36

                 The U.S. Court of Appeals for the Fourth Circuit has recognized that, when

a party fails to file a proper motion at trial for judgment as a matter of law under Rule

50(a), an appellate court is “substantially foreclosed from reviewing the sufficiency of the

evidence[.]”37        The party’s “absolute failure precludes all but the most deferential


                 1223, 1228 (5th Cir.1988) (quoting Stewart v. Thigpen, 730
                 F.2d 1002, 1007 (5th Cir.1984)) (holding that “our inquiry is
                 restricted to ‘whether there was any evidence to support the
                 jury’s verdict, irrespective of its sufficiency, or whether plain
                 error was committed which, if not noticed, would result in
                 manifest miscarriage of justice’”) (emphasis in original), cert.
                 denied, 493 U.S. 822, 110 S.Ct. 80, 107 L.Ed.2d 46
                 (1989); Coughlin v. Capitol Cement Co., 571 F.2d 290, 297
                 (5th Cir.1978); rule also applies in the Eleventh Circuit,
                 following the principle established in Bonner v. City of
                 Prichard, 661 F.2d 1206 (11th Cir.1981) (in banc) (the
                 Eleventh Circuit adopts Fifth Circuit precedent existing at
                 time of Eleventh Circuit’s creation); (3) the “reinterpretation”
                 exception, see, e.g., Sears v. Pauly, 261 F.2d 304 (1st
                 Cir.1958) (reinterpreting the sufficiency arguments as an
                 objection to the jury instructions); Warner v. Kewanee Mach.
                 & Conveyor Co., 411 F.2d 1060 (6th Cir.1969) (preserving
                 review of a sufficiency question by reinterpreting the
                 sufficiency issue as an evidentiary problem, which the court
                 found subject to plenary review), cert. denied, 398 U.S. 906,
                 90 S.Ct. 1685, 26 L.Ed.2d 65 (1970).

Yohannon v. Keene Corp., 924 F.2d at 1262 n.7.
                 36
                      Chambers, 157 W.Va. at 81, 198 S.E.2d at 809.
                 37
                      Bristol Steel & Iron Works, 41 F.3d at 186.


                                                 19 

appellate review of the evidence.”38 A party’s Rule 59 motion for a new trial “does not

create the avenue for searching review that its failure to move for judgment as a matter of

law foreclosed.”39 “In such a procedural posture, . . . [an appellate court’s] scope of

review is exceedingly confined . . . being limited to whether there was any evidence to

support the jury’s verdict, irrespective of its sufficiency, . . . which, if not noticed, would

result in a manifest miscarriage of justice.”40

              In light of these cases, we hold that under the WEST VIRGINIA RULES OF

CIVIL PROCEDURE, when a party has failed during a jury trial to make a motion for

judgment as a matter of law under Rule 50(a) challenging the sufficiency of the evidence,

that party has waived the right to mount any post-trial attack on the sufficiency of the

evidence under Rule 50(b). Additionally, if the party moves for a new trial under Rule 59

and attempts to challenge the sufficiency of the evidence supporting the verdict, then the

scope of review of the motion is confined to whether there was any evidence to support

the jury’s verdict, irrespective of its sufficiency, and which, if not addressed by the court,

would result in a manifest miscarriage of justice.

              Under this deferential standard, we need not examine whether manifest

injustice exists in this case because the record contains evidence to support the jury’s


              38
                   Id. 

              39
                   Id., 41 F.3d at 187.

              40
                   Id., 41 F.3d at 187 (quoting Coughlin v. Capitol Cement Co., 571 F.2d at 

297).


                                              20 

verdict.   Even the circuit court noted there was ample evidence to support the

McInarnays’ position. The trial record shows that, when L.S. Riffe and Matilda L.V.

Riffe agreed to the “free road” easement in 1908, those individuals had in mind a specific

location for the “free road” across the tract. Modern surveys and an aerial photo from the

1940s confirm the location of the abandoned “free road.” The record establishes that

today, the “free road” is overgrown with trees, cut by a creek bed, blocked by a pond and

marsh grasses, and so choked with debris that neither the McInarnays nor their

predecessor knew of the old roadbed’s existence. Mrs. Hall and her family have not used

the “free road” for many decades.        Instead, they have occasionally crossed the

McInarnays’ tract by a different path.

              Mrs. Hall asserts that the McInarnays failed to introduce any direct

evidence that she intended to abandon the easement. However, the intent to abandon an

easement requires an examination of the easement-holder’s state of mind.              The

interpretation of a party’s state of mind “must ordinarily be shown by circumstantial

evidence, from which conflicting inferences may often reasonably be drawn.”41 “A

party’s precise knowledge or state of mind concerning a situation often cannot be

determined by direct evidence, but must instead be shown indirectly through

circumstantial evidence.”42 “As we have stated before, ‘there is no qualitative difference


              41
               Syllabus Point 2, Nutter v. Owens-Illinois, Inc., 209 W.Va. 608, 550
S.E.2d 398 (2001).
              42
               Mace v. Ford Motor Co., 221 W.Va. 198, 204, 653 S.E.2d 660, 666
(2007). See also Hinerman v. Daily Gazette Co., Inc., 188 W.Va. 157, 170 n.18, 423
                                                                     Continued . . .
                                           21 

between direct and circumstantial evidence’ when considering whether there is sufficient

evidence to support a jury’s verdict.”43 There was adequate circumstantial evidence

supporting an inference that Mrs. Hall intended to abandon the “free road” across the

McInarnays’ land. Additionally, the circuit court properly instructed the jury that the

McInarnays were required to show that Mrs. Hall intended to abandon her easement by

clear and convincing proof. On this record, we cannot say the record is devoid of any

evidence to support the jury’s verdict.

              Mrs. Hall’s counsel wagered on a favorable verdict and only questioned the

sufficiency of the McInarnays’ evidence after the trial was complete. When Mrs. Hall

moved for a new trial under Rule 59(a) and alleged insufficient evidence to support the

verdict, the circuit court should have confined its review to whether there was any

evidence to support the jury’s verdict. Because there is ample evidence to support the

jury’s verdict, the circuit court abused its discretion when it ordered a new trial.




S.E.2d 560, 573 n.18 (1992) (“a plaintiff is entitled to prove the defendant’s state of mind
through circumstantial evidence”); Sias v. W-P Coal Co., 185 W.Va. 569, 575, 408
S.E.2d 321, 327 (1991) (“Subjective realization, like any state of mind, must be shown
usually by circumstantial evidence[.]”); State ex rel. Erie Ins. Property & Cas. Co. v.
Mazzone, 218 W.Va. 593, 598, 625 S.E.2d 355, 360 (2005) (“Bad faith is a state of mind
which must be established by circumstantial evidence.”).
              43
                Bowyer v. Hi-Lad, Inc., 216 W.Va. 634, 644, 609 S.E.2d 895, 905 (2004)
(quoting State v. Guthrie, 194 W.Va. 657, 669, 461 S.E.2d 163, 175 (1995)).


                                              22 

                                       IV. 

                                   CONCLUSION 


              The circuit court’s order entered December 28, 2016, granting a new trial

was in error. The order is reversed, and the case is remanded for entry of judgment on

the jury’s verdict.

                                                               Reversed and remanded.




                                          23 

