N.M. R. Civ. P. Dist. Ct. 1-050
N.M. R. Civ. P. Dist. Ct. 1-050
Committee commentary. - Section 39-1-1 NMSA 1978, adopted in 1897, provides that a trial court in some cases has continuing jurisdiction over its judgments for thirty (30) days after their entry. See, e.g., Laffoon v.Galles Motor Co., 80 N.M. 1, 450 P.2d 439 (Ct. App. 1969). Rather than have a ten (10)-day time requirement for filing most post-judgment motions but a thirty (30)-day time frame for filing motions under Section 39-1-1 NMSA 1978, the 2013 amendments extend the time for filing all post-trial motions, including renewed motions for judgment as a matter of law, to thirty (30) days from entry of the final judgment. The decision to extend the time to thirty (30) days rather than to limit Section 39-1-1 NMSA 1978 motions to ten (10) days was made because the prior ten (10)-day requirement often left insufficient time for parties to research, formulate, and prepare post-judgment motions. In addition, the choice of thirty (30) days makes it unnecessary to determine whether the provision in Section 39-1-1 NMSA 1978 for extended post-judgment jurisdiction of the district court is consistent with the principle of separation of powers between the legislature and the judiciary. See Rule 1-091 NMRA; Ammerman v. Hubbard Broadcasting, Inc., 89 N.M. 307, 551 P.2d 1354 (1976). The intent and effect of the 2013 amendment to Rule 1-050(B) and (C)(2) NMRA is to expand the time for filing those motions to thirty (30) days from entry of the judgment.
Motions are no longer deemed denied if not ruled upon for thirty (30) days after submission. Rule 1-054.1 NMRA. See the Committee Commentary for 2006 Amendment to Rule 1-054.1 NMRA for additional information. Instead, Rule 1-054.1 NMRA directs district courts to enter an order within sixty (60) days of submission. Id. Normally, the party filing a post-judgment motion has to await entry of an order from the district court ruling on the motion before filing an effective notice of appeal because where a timely Rule 1-050(B) or (C) NMRA motion has been filed, the time for filing a notice of appeal runs from the date of entry of an order that expressly disposes of the motion. See Dickens v. Laurel Healthcare, LLC, 2009-NMCA-122, ¶ 4, 147 N.M. 303, 222 P.3d 675 (notice of appeal filed prior to ruling on pending Rule 1-059(E) NMRA motion is premature and time for filing notice of appeal does not begin to run until order is entered resolving Rule 1-059(E) NMRA motion). A party who makes a timely Rule 1-050(B) or (C) NMRA motion may thereafter prefer to forgo an express ruling on the motion and, instead, start the appellate process. Appellate Rule 12-201(D)(3) NMRA provides that a Rule 1-050(B) or (C) NMRA movant may file a notice of withdrawal of the motion, thus affecting the time for filing a notice of appeal as provided in Rule 12-201(D)(3) NMRA.
The effect of the withdrawal of a renewed motion for a judgment as a matter of law on the ability of the party to assert on appeal that the evidence was legally insufficient to support the verdict is not free from doubt. The United States Supreme Court has ruled that, in federal court, a renewed motion for a judgment as a matter of law is a necessary prerequisite to appellate review of the sufficiency of the evidence to support a verdict. Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546 U.S. 394, 400-01 (2006). In dictum, the New Mexico Supreme Court has not required that there be a ruling on a motion for judgment n.o.v. (now a renewed motion for judgment as a matter of law). See Romero v. Mervyn's, 109 N.M. 249, 253 n.2, 784 P.2d 992, 996 n.2 (1989) (requiring "a motion for a directed verdict, objection to instructions, or a motion for j.n.o.v." (emphasis added)).
Under Rule 12-201(D)(4) NMRA, a timely filed notice of appeal does not divest the district court of jurisdiction to dispose of any timely filed motion under Rules 1-050, 1-052, or 1-059 NMRA, or a Rule 1-060 NMRA motion filed within thirty (30) days after the filing of a judgment. The notice of appeal becomes effective when the last such motion is disposed of expressly by an order of the district court, is automatically denied, or is withdrawn.
[Adopted by Supreme Court Order No. 13-8300-032, effective in all cases pending or filed on or after December 31, 2013.]
ANNOTATIONS The 2013 amendment, approved by Supreme Court Order No. 13-8300-032, effective December 31, 2013, increased the time for renewing a request for judgment as a matter of law or a new trial; in Paragraph B, in the introductory paragraph, in the second sentence, after "motion no later than", deleted "ten (10)" and added "thirty (30)"; and in Subparagraph (2) of Paragraph C, after "filed no later than", deleted "ten (10)" and added "thirty (30)". The 2007 amendment, approved by Supreme Court Order No. 07-8300-001, effective March 15, 2007, amended Paragraphs A and B to be consistent with the December 1, 2006 amendment of Rule 50 of the Federal Rules of Civil Procedure for the District Courts. Paragraph B has been amended to delete the requirement that a motion for judgment as a matter of law be made at the close of all of the evidence and to require a motion that addresses a jury issue not decided by a verdict to be made within ten (10) days after the jury is discharged. The 1999 amendment, effective September 27, 1999, rewrote the rule which was formerly catchlined as "Motion for a directed verdict and for judgment notwithstanding the verdict" and added the provisions regarding judgments as a matter of law. I. GENERAL CONSIDERATION. Purpose of 1999 amendment. - The Supreme Court amended this rule in 1999 in order to conform the rule with the Federal Rules of Civil Procedure, which had been amended primarily to change the familiar terminology of "directed verdict" and "judgment n.o.v." to the single term "judgment as a matter of law." Valley Bank of Commerce v. Hilburn, 2005-NMCA-004, 136 N.M. 741, 105 P.3d 294. There is no automatic denial of motions for judgment as a matter of law under this rule alone. Valley Bank of Commerce v. Hilburn, 2005-NMCA-004, 136 N.M. 741, 105 P.3d 294. Time for filing notice of appeal. - In jury trial cases where one of the parties files a post-trial motion for judgment as a matter of law, the time for filing a notice of appeal does not begin to run until the district court enters an order ruling on the motion. Valley Bank of Commerce v. Hilburn, 2005-NMCA-004, 136 N.M. 741, 105 P.3d 294. Purpose of rule is to allow the judge, not the jury, to resolve the factual issue. Strickland v. Roosevelt Cnty. Rural Elec. Coop., 1980 -NMCA-012, 94 N.M. 459, 612 P.2d 689, cert. denied, 463 U.S. 1209, 103 S. Ct. 3540, 77 L. Ed. 2d 1390 (1983). Standards for directed verdict and judgment notwithstanding verdict the same. - The standards required for the granting of a motion for directed verdict are the same as those for granting a motion for judgment notwithstanding the verdict. Garcia v. Barber's Super Mkts., Inc., 1969-NMCA-126, 81 N.M. 92, 463 P.2d 516. Upon motion for judgment notwithstanding the verdict, the court is governed by the same rules which apply to a motion for directed verdict. Francis v. Johnson, 1970-NMCA-079, 81 N.M. 648, 471 P.2d 682. II. MOTION FOR DIRECTED VERDICT: WHEN MADE; EFFECT. A. IN GENERAL. Directed verdicts are not favored and should be granted only when the jury could not reasonably and legally reach any other conclusion. Strickland v. Roosevelt Cnty Rural Elec. Coop., 1980 -NMCA-012, 94 N.M. 459, 612 P.2d 689, cert. denied, 463 U.S. 1209, 103 S. Ct. 3540, 77 L. Ed. 2d 1390 (1983). No presumption of validity where directed before all evidence presented. - Where the trial court had taken it upon itself to grant a directed verdict before the evidence had all been presented, the supreme court was not disposed to indulge any presumptions as to the correctness of its ruling. Home Fire & Marine Ins. Co. v. Pan Am. Petroleum Corp., 1963-NMSC-094, 72 N.M. 163, 381 P.2d 675. Trial court ruling not discretionary. - Decisions holding or suggesting that trial court's ruling on a motion for a directed verdict is discretionary are overruled. Archuleta v. Pina, 1974-NMSC-021, 86 N.M. 94, 519 P.2d 1175. If reasonable minds cannot differ, then a directed verdict is not only proper but the court has a duty to direct a verdict. Owen v. Burn Constr. Co., 1977 -NMSC-029, 90 N.M. 297, 563 P.2d 91. Objection as functional equivalent of directed verdict motion. - Objection to an instruction on duress on the grounds that no evidence had been introduced to support such a finding was the functional equivalent of a motion for directed verdict on the issue of duress and was sufficient to preserve for review the question of the legal sufficiency of the evidence on duress and to keep open the possibility of reversal and grant of a new trial in the event submission of the claim to the jury was in error. First Nat'l Bank v. Sanchez, 1991-NMSC-065, 112 N.M. 317, 815 P.2d 613. Involuntary dismissal distinguished. - The grant of a motion to dismiss under Rule 1-041(B) will be sustained even if the plaintiff has produced enough evidence to withstand a directed verdict under Paragraph A, so long as the decision of the trial judge is rationally based on the evidence. Padilla v. RRA, Inc., 1997-NMCA-104, 124 N.M. 111, 946 P.2d 1122. Where error to direct verdict. - Where there was evidence supporting the state's case and there was no conflicting testimony, it would have been error to have directed a verdict for defendant. State v. Tapia, 1970-NMCA-037, 81 N.M. 365, 467 P.2d 31. It would be error for a trial court to direct a verdict in favor of the movant unless the adverse party has presented no evidence which would support a judgment in his favor, and if reasonable minds may differ, it is a proper question to be submitted to the jury. Brown v. Hall, 1969-NMCA-077, 80 N.M. 556, 458 P.2d 808, cert. denied, 80 N.M. 607, 458 P.2d 859. It is firmly established that it is error for the trial court to direct a verdict at the close of the evidence in favor of the movant unless the adverse party has presented no evidence which would support a judgment in his favor. Merchant v. Worley, 1969-NMCA-001, 79 N.M. 771, 449 P.2d 787. Where it is clear from the record that if the testimony of the plaintiff and her husband is believed the defendant ran a red light and if defendant's testimony and that of the eyewitnesses is believed, the plaintiff's husband operating the vehicle in which she was riding ran a red light. An issue of fact is presented and such issue is not appropriate for resolution by a directed verdict. Vander Biesen v. Lewis, 1969-NMCA-071, 80 N.M. 490, 458 P.2d 94. Denial of motion for directed verdict was proper where, although rechanneling of water onto neighbor's property was not intentional, the result of grading and paving parking lot was the creation of an artificial channel which caused damage to neighbor's property. Groff v. Circle K Corp., 1974-NMCA-081, 86 N.M. 531, 525 P.2d 891. If reasonable minds may differ as to the conclusion to be reached under the evidence or permissible inferences to be drawn therefrom, the question is one for the jury and it is error to direct a verdict. Smith v. Loos, 1967-NMCA-011, 78 N.M. 339, 431 P.2d 72, cert. denied, 78 N.M. 337, 431 P.2d 70; Jones v. New Mexico School of Mines, 1965-NMSC-083, 75 N.M. 326, 404 P.2d 289. Where no issue of fact. - If the evidence and the reasonable inferences to be drawn therefrom are plain and not open to doubt by reasonable men, then there is no issue of fact to be presented to the jury. Williamson v. Piggly Wiggly Shop Rite Foods, Inc., 1969-NMCA-088, 80 N.M. 591, 458 P.2d 843. A verdict should only be directed where there is no fact for the jury to pass upon or where the court, in the exercise of its sound discretion, would be required to set aside a verdict if favorable to one side rather than to the other. Edwards v. Ross, 1963-NMSC-054, 72 N.M. 38, 380 P.2d 188. Questions of negligence are generally to be determined by the fact finder, but when reasonable minds cannot differ, a question of law to be resolved by the trial judge is presented. Montoya v. Williamson, 1968-NMSC-162, 79 N.M. 566, 446 P.2d 214. Misconduct not basis for verdict. - A directed verdict in favor of a defendant is not to be granted on the basis of defendant's misconduct. State v. Paul, 1972-NMCA-024, 83 N.M. 527, 494 P.2d 189. Insufficient evidence for armed robbery. - The defendant's motion for a directed verdict, questioning the sufficiency of the evidence for a conviction of armed robbery, should have been sustained, where witness only testified that he had been taken by surprise and not that by force or fear he had been induced to part with anything of value. State v. Baca, 1971-NMCA-142, 83 N.M. 184, 489 P.2d 1182. Workmen's compensation. - In personal injury action, trial court properly refused to direct verdict for defendant employer on the theory that the parties were bound by the provisions for Workmen's Compensation where defendant had not complied with insurance requirements. Addison v. Tessier, 1957-NMSC-002, 62 N.M. 120, 305 P.2d 1067. Trial court may properly remove case from consideration by jury only when no true issues of fact have been presented and the right of jury trial on any issue of fact presented by the pleadings is provisional, and if the evidence fails to form such issue of fact the right of jury trial disappears. Loucks v. Albuquerque Nat'l Bank, 1966-NMSC-176, 76 N.M. 735, 418 P.2d 191. Negligence, contributory negligence and last clear chance. - As is true of negligence and contributory negligence, last clear chance is generally a question to be determined by the jury. However, if reasonable minds cannot differ that the facts do not give rise to liability, the court should decide the issue as a matter of law. Montoya v. Williamson, 1968-NMSC-162, 79 N.M. 566, 446 P.2d 214. Denial of motion for directed verdict preserves issue for review. - A motion for a directed verdict and its denial always preserves for review the question whether, under the law applicable to the case, there is an adequate evidentiary basis to warrant denial of the motion. Gerety v. Demers, 1978-NMSC-097, 92 N.M. 396, 589 P.2d 180. B. WHEN MADE. Generally. - A motion for directed verdict ordinarily cannot be made until movant's adversary has presented his case or rested. Hatch v. Strebeck, 1954-NMSC-117, 58 N.M. 824, 277 P.2d 317. Directing verdict at close of plaintiff's case. - It is error for trial court to direct a verdict in favor of a defendant at the close of plaintiff's case unless plaintiff has presented no facts which would support a judgment in his favor. Smith v. Loos, 1967-NMCA-011, 78 N.M. 339, 431 P.2d 72, cert. denied, 78 N.M. 337, 431 P.2d 70; Jones v. New Mexico Sch. of Mines, 1965-NMSC-079, 75 N.M. 326, 404 P.2d 289 (1965). Before adversary has rested. - While this rule, by its express terms, does not deny that a motion for a directed verdict may be made before an adversary has rested, such must be its general application if an orderly administration of justice is to be accomplished. Home Fire & Marine Ins. Co. v. Pan Am. Petroleum Corp., 1963-NMSC-094, 72 N.M. 163, 381 P.2d 675. Granting directed verdict for defendant was error where plaintiff was given no opportunity to overcome adverse effects of testimony of one of its witnesses on cross-examination. Home Fire & Marine Ins. Co. v. Pan Am. Petroleum Corp., 1963-NMSC-094, 72 N.M. 163, 381 P.2d 675. C. TREATMENT OF EVIDENCE AND INFERENCES. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and has been defined as evidence of substance which establishes facts from which reasonable inferences may be drawn. McCauley v. Ray, 1968-NMSC-194, 80 N.M. 171, 453 P.2d 192. Trial court must review all of evidence with all reasonable inferences deducible therefrom most favorable to the party resisting the motion in ruling on a motion for a directed verdict. Strickland v. Roosevelt Cnty. Rural Elec. Coop., 1980 -NMCA-012, 94 N.M. 459, 612 P.2d 689, cert. denied, 463 U.S. 1209, 103 S. Ct. 3540, 77 L. Ed. 2d 1390 (1983). Reasonable inference is conclusion arrived at by a process of reasoning. This conclusion must be a rational and logical deduction from facts admitted or established by the evidence, when such facts are viewed in the light of common knowledge or common experience. Williamson v. Piggly Wiggly Shop Rite Foods, Inc., 1969-NMCA-088, 80 N.M. 591, 458 P.2d 843. Generally. - In ruling upon a motion for a directed verdict, the court will consider the evidence and inferences therefrom most favorable to the party resisting the motion. Harmon v. Farmers Mkt. Food Store, 1972-NMCA-077, 84 N.M. 80, 499 P.2d 1002, cert. denied, 84 N.M. 77, 499 P.2d 999. Trial and appellate rule the same. - Decisions suggesting a difference between the rule governing trial courts in passing on a motion for a directed verdict and the rule governing appellate courts in reviewing the validity of a judgment entered pursuant to a directed verdict, are overruled. Archuleta v. Pina, 1974-NMSC-021, 86 N.M. 94, 519 P.2d 1175. By trial court. - In ruling on a motion for a directed verdict, the trial court must view the evidence, together with all reasonable inferences deducible therefrom, in the light most favorable to the party resisting the motion, and must disregard all conflicts in the evidence unfavorable to the position of that party. Archuleta v. Pina, 1974-NMSC-021, 86 N.M. 94, 519 P.2d 1175; Sanchez v. Gattas, 1950-NMSC-031, 54 N.M. 224, 219 P.2d 962; Addison v. Tessier, 1957-NMSC-002, 62 N.M. 120, 305 P.2d 1067; Tabet v. Sprouse-Reitz Co., 1966-NMSC-006, 75 N.M. 645, 409 P.2d 497; Loucks v. Albuquerque Nat'l Bank, 1966-NMSC-176, 76 N.M. 735, 418 P.2d 191; Bank of N.M. v. Rice, 1967-NMSC-109, 78 N.M. 170, 429 P.2d 368; Smith v. Loos, 1967-NMCA-011, 78 N.M. 339, 431 P.2d 72, cert. denied, 78 N.M. 337, 431 P.2d 70; Simon v. Akin, 1968-NMSC-193, 79 N.M. 689, 448 P.2d 795; Garcia v. Barber's Super Mkts., Inc., 1969-NMCA-126, 81 N.M. 92, 463 P.2d 516; Demers v. Gerety, 1973-NMCA-134, 85 N.M. 641, 515 P.2d 645, rev'd on other grounds, 1974-NMSC-010, 86 N.M. 141, 520 P.2d 869. By appellate court. - The appellate court, upon reviewing a judgment entered pursuant to a directed verdict, must view the evidence and all reasonable inferences deducible therefrom in the light most favorable to the party resisting the motion, and must disregard all conflicts in the evidence unfavorable to the position of that party. Archuleta v. Pina, 1974-NMSC-021, 86 N.M. 94, 519 P.2d 1175; Bryan v. Phillips, 1962-NMSC-023, 70 N.M. 1, 369 P.2d 37; Burks v. Baumgartner, 1963-NMSC-062, 72 N.M. 123, 381 P.2d 57; McGuire v. Pearson, 1967-NMSC-196, 78 N.M. 357, 431 P.2d 735; Carter Farms Co. v. Hoffman-LaRoche, Inc., 1971-NMCA-178, 83 N.M. 383, 492 P.2d 1000. All evidence to be considered. - Upon motion for directed verdict, trial court has duty to consider all the evidence, not just that favorable to party opposing motion, and if any evidence conflicts, it is to be resolved in favor of party resisting motion. Skyhook Corp. v. Jasper, 1977-NMSC-017, 90 N.M. 143, 560 P.2d 934, overruled on other grounds, Klopp v. Wackenhut Corp., 1992-NMSC-008, 113 N.M. 153, 824 P.2d 293. Question of substantial evidence. - In ruling on a defense motion for a directed verdict, the evidence must be viewed in the light most favorable to the state. The question presented by such a motion is whether there is substantial evidence to support the charge. In deciding this question on appeal, the court views the evidence in the light most favorable to the state, resolving all conflicts therein and indulging all reasonable inferences therefrom in favor of the verdict of conviction. State v. McKay, 1969-NMCA-009, 79 N.M. 797, 450 P.2d 435. D. CLAIM OF NEGLIGENCE OR CONTRIBUTORY NEGLIGENCE. "Wrongful conception" is not a distinct tort in New Mexico. - Because a "wrongful conception" action is nothing more than a normal medical malpractice action with a unique type of damages for the costs of raising a child from birth to adulthood when a child is conceived as a result of a negligently performed, unsuccessful sterilization procedure, plaintiff, as in any medical malpractice action, has the burden of proving that defendant owed plaintiff a duty recognized by law, that defendant failed to conform to the recognized standard of medical practice in the community, and that the actions complained of were the proximate cause of plaintiff's injuries. Plaintiff does not have to prove that defendant failed to disclose that the sterilization procedure was unsuccessful, and if defendant informed plaintiff that the sterilization was unsuccessful, the disclosure does not automatically bar plaintiff's case from going to the jury. The effect of defendant's disclosure that the sterilization was unsuccessful should be considered by the jury in its assessment of causation and, if there is causation, the apportionment of the parties' relative fault. Provencio v. Wenrich, 2010-NMCA-047, 148 N.M. 799, 242 P.3d 366, cert. granted, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180. Where defendant performed a tubal ligation on plaintiff; the ligation was not successful and fertility tests revealed that plaintiff was still fertile; defendant informed plaintiff that plaintiff could get pregnant; plaintiff did not seek additional medical care from defendant or contraceptive care from any other health care provider; plaintiff understood that plaintiff could get pregnant and used condoms as the sole method of birth control; and after plaintiff received the results of the fertility tests, plaintiff conceived a child; plaintiff was merely required to show that there was a negligent failure to perform the tubal ligation procedure, defendant's disclosure that plaintiff was still fertile did not, as a matter of law, break the casual chain, and the district court erred in granting judgment to defendant as a matter of law on the grounds that a failure to inform plaintiff that the ligation was unsuccessful is an essential element of the tort of "wrongful conception" and that defendant had informed plaintiff that plaintiff continued to be fertile. Provencio v. Wenrich, 2010-NMCA-047, 148 N.M. 799, 242 P.3d 366, cert. granted, 2010-NMCERT-006, 148 N.M. 582, 241 P.3d 180. Claim of negligence. - Motion for directed verdict was properly granted in favor of city in negligence suit against city for failure to specify procedures for contractor for construction of sewage lines, where there was no evidence of either contractor's incompetence or use of improper methods, and there was no question of fact to decide. Garcia v. Universal Constructors, Inc., 1970-NMCA-113, 82 N.M. 70, 475 P.2d 464. In negligence action, in ruling on directed verdict motion, the first question to be resolved is whether the plaintiff has made out a prima facie case of negligence and in determining this issue, all evidence and all reasonable inferences arising therefrom which tend to prove the plaintiff's case of primary negligence must be accepted as true. Edwards v. Ross, 1963-NMSC-054, 72 N.M. 38, 380 P.2d 188. Negligence and causal connection are generally questions of fact for the jury, but where the evidence is undisputed and reasonable minds cannot differ, the question is one of law to be resolved by the judge. New Mexico State Hwy. Dep't v. Van Dyke, 1977-NMSC-027, 90 N.M. 357, 563 P.2d 1150. Motion denied despite negligence per se. - In automobile accident case, trial court cannot grant a directed verdict on the issue of liability even though defendant is negligent per se, because the fact finders still have to determine whether the negligence per se was the actual and proximate cause of the accident. Archibeque v. Homrich, 1975-NMSC-066, 88 N.M. 527, 543 P.2d 820. Failure to present expert testimony on the standard of medical care. - Where decedent died when decedent developed a heart arrhythmia during surgery in 2005; the heart arrhythmia was caused by an undiagnosed condition called pheochromocytoma; prior to surgery, lab tests had been ordered that would have disclosed the pheochromocytoma; the surgeon conducted the surgery before the lab results had been received and despite decedent's high potassium levels that posed a chance of death during surgery; to establish the standard of care for the surgeon's conduct, plaintiff offered the testimony of an interventional radiology expert who testified that there was no standard practice that an interventional radiologist would use to address the complication that occurred in decedent's surgery; and plaintiff called a general surgeon to establish the standard of care applicable to decedent's surgery, but failed to lay a foundation for the general surgeon's opinion, plaintiff failed to present expert testimony on the standard of care and the district court did not err in directing a verdict in favor of the surgeon. Richter v. Presbyterian Healthcare Servs., 2014-NMCA-056, cert. denied, 2014-NMCERT-005. Claim of contributory negligence. - Verdict may be directed where there can be no disagreement among reasonable minds that plaintiff is guilty of contributory negligence. Home Fire & Marine Ins. Co. v. Pan Am. Petroleum Corp., 1963-NMSC-094, 72 N.M. 163, 381 P.2d 675. Directed verdict for defendant on ground plaintiff was contributorily negligent was error where there was no evidence plaintiff violated statute or ordinance. Question of contributory negligence was one of fact to be determined by trier of facts. McKeough v. Ryan, 1968-NMSC-150, 79 N.M. 520, 445 P.2d 585. Defendant's motion for a directed verdict because of plaintiff's contributory negligence as a matter of law admits his negligence for the purpose of the motion. McKeough v. Ryan, 1968-NMSC-150, 79 N.M. 520, 445 P.2d 585. The issue of contributory negligence should be determined as a matter of law only when reasonable minds cannot differ on the question and readily reach the conclusion that the plaintiff was contributorily negligent and that his negligence proximately contributed with that of the defendant in causing the injury. Canter v. Lowrey, 1961-NMSC-114, 69 N.M. 81, 364 P.2d 140. Failure to clean up fallen substance. - Denial of directed verdict for defendant was error where plaintiff slipped on substance in produce area of market, which was swept several times each day, and the employees were instructed to pick up fallen produce, and did so. Lewis v. Barber's Super Mkts., Inc., 1963-NMSC-119, 72 N.M. 402, 384 P.2d 470. The mere presence of a slippery spot on a floor is insufficient to establish negligence, as this condition may arise temporarily. Barakos v. Sponduris, 1958-NMSC-048, 64 N.M. 125, 325 P.2d 712; Kitts v. Shop Rite Foods, Inc., 1958-NMSC-039, 64 N.M. 24, 323 P.2d 282. E. WAIVER. Jury trial not waived. - Motion of both sides for a directed verdict no longer amounts to a waiver of jury trial. Goldenberg v. Village of Capitan, 1951-NMSC-009, 55 N.M. 122, 227 P.2d 630. Waiver of error. - When a defendant proceeds to put on his case after the denial of his motion for a directed verdict made at the end of the plaintiff's case, he waives error, if any, in the lower court's refusal to grant such motion if the motion is not renewed at the close of the entire case. Bondanza v. Matteucci, 1955-NMSC-053, 59 N.M. 354, 284 P.2d 1024. Where defendants moved to dismiss at close of plaintiff's case in chief on grounds that plaintiffs seeking right of ingress and egress to their land failed to establish that road in question was public, and thereby failed to establish a prima facie case, but where defendants did not elect to stand on their motion but proceeded with their case after the denial thereof, they thereby waived any error committed in denial of the motion, even where evidence unquestionably failed to establish a public road. Board of Trustees v. Montano, 1971-NMSC-025, 82 N.M. 340, 481 P.2d 702. Unless a motion for a directed verdict made at the close of plaintiff's case is renewed at the close of the entire case, appellant cannot, on appeal, raise any question concerning the legal sufficiency of the evidence to sustain the judgment. Nally v. Texas-Arizona Motor Freight, Inc., 1962-NMSC-021, 69 N.M. 491, 368 P.2d 806. F. STATEMENT OF SPECIFIC GROUNDS. Generally. - Where the motion for a directed verdict fails to state any grounds in support thereof, it is defective and may be denied. Hatch v. Strebeck, 1954-NMSC-117, 58 N.M. 824, 277 P.2d 317. III. MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT. A. IN GENERAL. Generally. - A judgment notwithstanding the verdict should not be granted except where it is most clear that the evidence or any inference therefrom does not present an issue for the jury. Romero v. Turnell, 1961-NMSC-054, 68 N.M. 362, 362 P.2d 515. Judgment notwithstanding the verdict is proper only when it can be said that there is neither evidence nor inference from which the jury could have arrived at the verdict. Bookout v. Griffin, 1982-NMSC-007, 97 N.M. 336, 639 P.2d 1190. Improper where substantial conflicting evidence exists. - Judgments notwithstanding the verdict are not proper where there is substantial conflicting evidence. Bookout v. Griffin, 1982-NMSC-007, 97 N.M. 336, 639 P.2d 1190. Prerequisite to motion. - A motion for a directed verdict at the close of all the evidence is a prerequisite to a motion for judgment notwithstanding verdict. Bondanza v. Matteucci, 1955-NMSC-053, 59 N.M. 354, 284 P.2d 1024. Where matter of law. - Where car of plaintiff's decedent collided with defendant's cow on highway, and there was insufficient evidence for the application of the doctrine of res ipsa loquitur or of negligence apart from the doctrine, defendant's motion for a directed verdict should have been granted. That not having been done, the motion for judgment notwithstanding the verdict should have been granted. Tapia v. McKenzie, 1973-NMCA-126, 85 N.M. 567, 514 P.2d 618. Reasonable minds could not differ as to the liability of defendant for damaging plaintiff's building or as to the amount of damages, since there literally was no evidence disputing either of the factual issues. Therefore, the supreme court reversed the court of appeals and the trial court and directed that judgment be entered, notwithstanding the verdict, awarding plaintiff his damages plus his costs. Owen v. Burn Constr. Co., 1977 -NMSC-029, 90 N.M. 297, 563 P.2d 91. When after reading the testimony in the light most advantageous to the plaintiff, and giving him the benefit of every inference of fact fairly deducible therefrom, the reviewing court determined that the plaintiffs and cross defendants were not entitled as a matter of law to a judgment against the defendant, the ruling of the trial court in granting judgment notwithstanding must be sustained. Marr v. Nagel, 1954-NMSC-126, 59 N.M. 21, 278 P.2d 561. Where question of fact. - Whether plaintiff would have seen defendant's car in ample time to have avoided the collision had the automobile been so parked as to expose the reflectors to oncoming traffic presented a fact question for determination by the jury, and not a question of law to be decided by judgment n.o.v. Chavira v. Carnahan, 1967-NMSC-040, 77 N.M. 467, 423 P.2d 988. Where the evidence of the location of a cave to a dedicated area is conflicting and there is substantial evidence which would support a determination that the cave was within the dedicated area, then under the rules for reviewing evidence where there has been a judgment notwithstanding the verdict, the trial court could not have properly entered the judgment notwithstanding the verdict on the basis of the location of the cave. Williams v. Town of Silver City, 1972-NMCA-132, 84 N.M. 279, 502 P.2d 304 (Ct. App.), cert. denied, 84 N.M. 271, 502 P.2d 296. In a products liability case, defendants' award of judgment notwithstanding the verdict was overturned by the court of appeals, which held that defendants' arguments and evidence of inherent improbability could not overcome plaintiffs' experts' testimony that an axle did in fact break while the car was being driven, and was all met by contradictory evidence of the plaintiffs, so that the resulting conflict was properly one for the jury. Montoya v. GMC, 1975-NMCA-136, 88 N.M. 583, 544 P.2d 723, cert. denied, 89 N.M. 5, 546 P.2d 70 (1976). Where judgment notwithstanding verdict improper although evidence undisputed. - Even though evidence may be undisputed, a judgment notwithstanding verdict is improper if different inferences may reasonably be drawn therefrom. Chavira v. Carnahan, 1967-NMSC-040, 77 N.M. 467, 423 P.2d 988. Power to reserve ruling. - Subdivision (b) (see now Paragraph B) permits a trial judge to overrule or deny a motion for dismissal or for a directed verdict at the close of all of the evidence and reserve ruling thereon until after the jury is given an opportunity to pass on the identical situation from a factual standpoint. Marr v. Nagel, 1954-NMSC-126, 59 N.M. 21, 278 P.2d 561. Automatic denial of motion for reconsideration. - The parties were required to file their notice of appeal from an order of distribution of certain settlement proceeds within 30 days from the date their motion for reconsideration was deemed denied by operation of law. Beneficial Fin. Corp. v. Morris, 1995-NMCA-076, 120 N.M. 228, 900 P.2d 977. B. WHEN MADE. Raising issue on judgment notwithstanding verdict. - Where no question of the status of the four boys killed in collapse of cave was raised during the trial and this question was not presented to the trial court until defendant moved for judgment notwithstanding the verdict, the question was raised too late to be the subject of review. Williams v. Town of Silver City, 1972-NMCA-132, 84 N.M. 279, 502 P.2d 304, cert. denied, 84 N.M. 271, 502 P.2d 296. Motion to reconsider filed more than 10 days after the entry of order and accordingly was not timely. State v. Navas, 1967-NMSC-198, 78 N.M. 365, 431 P.2d 743. C. TREATMENT OF EVIDENCE AND INFERENCES. Generally. - In considering a motion for judgment n.o.v. the motion is to be granted only when there is neither evidence nor inference from which the jury could have arrived at its verdict. Demers v. Gerety, 1973-NMCA-134, 85 N.M. 641, 515 P.2d 645, rev'd on other grounds, 1974-NMSC-010, 86 N.M. 141, 520 P.2d 869; Michelson v. House, 1950-NMSC-010, 54 N.M. 197, 218 P.2d 861; Romero v. Turnell, 1961-NMSC-054, 68 N.M. 362, 362 P.2d 515; Chavira v. Carnahan, 1967-NMSC-040, 77 N.M. 467, 423 P.2d 988; Flanary v. Transport Trucking Stop, 1968-NMCA-010, 78 N.M. 797, 438 P.2d 637; Tapia v. McKenzie, 1973-NMCA-126, 85 N.M. 567, 514 P.2d 618. The standard for granting a judgment notwithstanding the verdict is the same as that for granting a directed verdict. The party who prevails in the jury's verdict is entitled to have the testimony considered in a light most favorable to him and is entitled to every inference of fact fairly deducible from the evidence. Montoya v. GMC, 1975-NMCA-136, 88 N.M. 583, 544 P.2d 723, cert. denied, 89 N.M. 5, 546 P.2d 70 (1976). The trial court must view the evidence in the light most favorable to the party resisting the motion for judgment n.o.v. Bookout v. Griffin, 1982-NMSC-007, 97 N.M. 336, 639 P.2d 1190. Appeal from denial of motion. - On appeal from the denial of a motion under this rule, the verdict of the jury will not be disturbed unless unsupported by substantial evidence. An appellate court will not reverse, unless, after viewing the evidence in the light most favorable to support the verdict, it is convinced that such verdict cannot be sustained either by the evidence or permissible inferences therefrom. Perschbacher v. Moseley, 1965-NMSC-068, 75 N.M. 252, 403 P.2d 693. Evidence as existing at close of trial. - In considering a motion for judgment notwithstanding the verdict, the evidence must be taken as it existed at the close of the trial, and evidence admitted over objection cannot be excluded nor can evidence be included which was improperly rejected. Whether competent or incompetent, all evidence submitted to the jury must be considered by the court in ruling on a motion for judgment notwithstanding the verdict, and such a judgment cannot be entered on a diminished record after the elimination of incompetent evidence. Townsend v. U.S. Rubber Co., 1964-NMSC-103, 74 N.M. 206, 392 P.2d 404, overruled in part on other grounds, Rhein v. ADT Auto, Inc., 1996-NMSC-066, 122 N.M. 646, 930 P.2d 783. D. APPEAL. Generally. - Whether motion for judgment n.o.v. is sustained or overruled, the ensuing judgment can be appealed and the correctness of the court's ruling on the motion can be appealed. Scott v. J.C. Penney Co., 1960-NMSC-068, 67 N.M. 219, 354 P.2d 147. Judgment n.o.v. coupled with motion for new trial. - Where judgment n.o.v. is coupled with a motion for a new trial, denial of the motion for a new trial leaves the judgment standing and can be appealed. Scott v. J.C. Penney Co., 1960-NMSC-068, 67 N.M. 219, 354 P.2d 147. Effect of new trial order where judgment rendered. - Where motions for judgment n.o.v. and new trial are made in the alternative, and a judgment has been rendered on the verdict, order granting new trial would be a final order and appealable. Scott v. J.C. Penney Co., 1960-NMSC-068, 67 N.M. 219, 354 P.2d 147. Where no judgment rendered. - Where motions for judgment n.o.v. and new trial are made in the alternative, and no judgment has been rendered on the verdict, order granting new trial renders verdict a nullity and is not appealable. Scott v. J.C. Penney Co., 1960-NMSC-068, 67 N.M. 219, 354 P.2d 147. E. PARTIAL JUDGMENT NOTWITHSTANDING THE VERDICT. Claims not established with reasonable certainty. - Defendant's motion for judgment n.o.v. was properly granted as to certain claims for damages which had not been established with reasonable certainty, although other parts of the judgment against defendant were not modified. Terrel v. Duke City Lumber Co., 1974-NMCA-041, 86 N.M. 405, 524 P.2d 1021, rev'd on other grounds, 1975-NMSC-041, 88 N.M. 299, 540 P.2d 229. F. LATER DETERMINATION OF LEGAL QUESTIONS. Generally. - Where defendant unsuccessfully sought motions for directed verdict on each of plaintiff's three motions, appellate review as to all three issues was not extinguished by failure to object to jury instruction listing claims in alternative and his request of a similar instruction since on motion for judgment n.o.v. the movant is entitled to assert the legal question in accordance with his motion for a directed verdict. Gerety v. Demers, 1974-NMSC-010, 86 N.M. 141, 520 P.2d 869. Court may reexamine earlier ruling in subsequent motion. - Trial courts can rule on a motion for a directed verdict when the motion is made, and yet the court can, without express reservation, reexamine its ruling in a subsequent motion for a directed verdict or for a judgment non obstante veredicto. Kinetics, Inc. v. El Paso Prods. Co., 1982 -NMCA-160, 99 N.M. 22, 653 P.2d 522. IV. SAME; CONDITIONAL RULINGS ON GRANT OF MOTION. Ruling not mandatory. - Claim that trial court erred in failing to rule on motion for new trial on the basis that it was mandatorily required by Subdivision (c) (see now Paragraph C) was without merit. Scott v. McWood Corp., 1971-NMSC-068, 82 N.M. 776, 487 P.2d 478. Failing to rule within limit. - Since trial court failed to rule on motion for new trial within 30 days, it was denied as a matter of law. Scott v. McWood Corp., 1971-NMSC-068, 82 N.M. 776, 487 P.2d 478. Law reviews. - For annual survey of New Mexico law relating to civil procedure, see 12 N.M.L. Rev. 97 (1982). Am. Jur. 2d, A.L.R. and C.J.S. references. - 75A Am. Jur. 2d Trial §§857, 858, 914. Request by both parties for directed verdict as waiver of submission to jury, 18 A.L.R. 1433, 68 A.L.R.2d 300. Constitutionality of statute forbidding direction of verdict or nonsuit, 29 A.L.R. 1287. Right of insurer to direct verdict on issue of suicide, 37 A.L.R. 171. Effect of explanatory or qualifying testimony to nullify prima facie case made by plaintiff, 66 A.L.R. 1532. Right or duty of court to direct verdict where based upon testimony of party or interested witness, 72 A.L.R. 27. May question as to qualification or competency of witness be raised by or upon motion for nonsuit or for directed verdict, absent objection on that ground when testimony was given, 93 A.L.R. 788. Right to move for judgment notwithstanding verdict after entry of judgment, 95 A.L.R. 429. Absence of issue as to amount of recovery, as distinguished from right to recover, as justifying return of verdict which does not assess amount, 105 A.L.R. 1075. Objectionable evidence, admitted without objection, as entitled to consideration on demurrer to evidence or motion for nonsuit or directed verdict, 120 A.L.R. 205. Evidence as to mutual decision, waiver, ratification or estoppel as regards insurer's attempt to rescind policy of insurance or particular provisions thereof as warranting direction of verdict, 152 A.L.R. 104. Directed verdict in action involving question whether injury to or death of insured while assaulting another was due to accident or accidental means, 26 A.L.R.2d 399. Direction of verdict in action against railroad for injury to an adult pedestrian attempting to pass over, under or between cars obstructing crossing, 27 A.L.R.2d 369. Entry of final judgment after disagreement of jury, 31 A.L.R.2d 885. Appealability of order overruling motion for directed verdict, or for judgment, or the like, where the jury has disagreed, 40 A.L.R.2d 1284. Appealability of order denying motion for directed verdict or for judgment notwithstanding the verdict where movant has been granted a new trial, 57 A.L.R.2d 1198. Direction of verdict based on uncontradicted testimony as affected by credibility of witness, 62 A.L.R.2d 1191. Motion by each party for directed verdict as waiving submission of fact questions to jury, 68 A.L.R.2d 300. Federal civil procedure rule, right to jury trial as invaded by Rule 50(b) or like state provisions with respect to motion for judgment notwithstanding or in default of verdict, 69 A.L.R.2d 449. Res ipsa loquitur as ground for direction of verdict in favor of plaintiff, 97 A.L.R.2d 522. Dismissal, nonsuit, judgment or direction of verdict on opening statement of counsel in civil action, 5 A.L.R.3d 1405. Propriety and prejudicial effect of counsel's argument or comment as to trial judge's refusal to direct verdict against him, 10 A.L.R.3d 1330. Direction of verdict in action involving duty and liability of vehicle driver blinded by glare of lights, 64 A.L.R.3d 551. Direction of verdict in action against landlord for personal injury or death due to defective inside steps or stairways for use of several tenants, 67 A.L.R.3d 587. Propriety of direction of verdict in favor of fewer than all defendants at close of plaintiff's case, 82 A.L.R.3d 974. Impeachment of verdict by juror's evidence that he was coerced or intimidated by fellow juror, 39 A.L.R.4th 800. Eligibility of management's relatives to vote in NLRB election, 26 A.L.R. Fed. 427. What standards govern appellate review of trial court's conditional ruling, pursuant to Rule 50(c)(1) of Federal Rules of Civil Procedure, on party's motion for new trial, 52 A.L.R. Fed. 494. Substitution of judges under Rule 25 of Federal Rules of Criminal Procedure, 73 A.L.R. Fed. 833. 49 C.J.S. Judgments §§ 62 to 72; 88 C.J.S. Trial §§ 249 to 265.