Nonsuits and Post-Trial Motions Flashcards
what is a nonsuit?
a voluntary withdrawal of a claim the plaintiff has made
in what situations does the plaintiff have an absolute right to withdraw a claim (=take a nonsuit) (3):
-a motion to strike the evidence has been sustained,
-the jury retires to deliberate, or
-the case has been submitted to the court for a decision
is the first nonsuit a matter of right?
yes as long as it is taken before the instances mentioned above
how may a subsequent nonsuit be taken?
by consent OR by permission of judge
how long may a party take to refile a nonsuit?
at any time within the remaining period of limitations or 6 months from the date of entry of the order granting the nonsuit, whichever is longer
a nonsuit and counterclaims/cross-claims/third-party claims?
a plaintiff cannot take a nonsuit while there is a pending counterclaim, cross-claim, or third party claim unless that claim can be independently adjudicated on its own merits
what is a final order/final judgment?
an order that the court retains control to modify, vacate, suspend the order for 21 days after entry and no longer
what (2) contexts if final used in?
1)it is a final order in the sense that the court is finished with the case
2)the judgment becomes final and beyond the control of the trial court after 21 days from entry of judgment (the date the judge signed the order)
what are some specific types of final orders (4)?
-demurrer
-pleas in bar
-motions for summary judgment
-motions to strike
demurrer and final orders?
considered final if the court does not allow the party leave to amend
if there is time to amend after a demurrer is sustained, the order becomes final if the plaintiff does not amend within the period of time allowed
pleas in bar/sj and final order?
they are final even if the order does not expressly say so
motions to strike and final orders?
NOT final unless the order also expressly enters summary judgment or partial sj dismissing the claim
what does a filing of a post-final order motion not do?
it does not extend the running of the 21 day period
what happens if the verdict is contract to the law and/or evidence?
a party may move for the court to enter a post-trial motion called a JNOV (judgment notwithstanding the verdict) OR order a new trial based on the grounds that:
-there was a finding as to liability that is contrary to the evidence or the law, or
-the finding as to damages is so high or so low that it shocks the conscience of the court
if the court agrees that the amount of damages awarded is too high or too low, what can the court do?
put the parties on terms
