RULE 52. FINDINGS BY THE COURT
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(b) Amendment. On motion served and filed no later than 15 days after service of notice of entry of judgment, the court may amend its findings-or make additional findings--and may amend the judgment. The motion may accompany a motion for a new trial under Rule 59. When findings of fact are made in actions tried without a jury, the sufficiency of the evidence supporting the findings may be later questioned whether or not the party raising the question in the district court objected to the findings, moved to amend them, or moved for partial findings.
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Rule 52 was amended, effective March 1, 1986; March 1, 1994; March 1, 1998; ________________________.
A choice between two permissible views of the evidence is not clearly erroneous when the trial court's findings are based either on physical or documentary evidence, or inferences from other facts, or on credibility determinations. Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985). Prior decisions of this Court to the contrary are to be disregarded.
Subdivision (a) was amended, effective March 1, 1994, to expressly provide
thatfindings of fact, whether based on oral or documentary evidence, are not to be set aside unless clearly erroneous. See Stracka v. Peterson, 377 N.W.2d 580 (N.D. 1985).
Subdivision (c) was added, effective March 1, 1994, to track the 1991 federal amendment, by authorizing the court in a non-jury trial to enter judgment at any time
thatthe court can make a dispositive finding of fact on the evidence against any party. The new subdivision replaces part of Rule 41(b), which formerly authorized a dismissal at the close of the plaintiff's case if the plaintiff had failed to carry an essential burden of proof.
A party should be aware notice of entry of judgment or an order is not necessary to start the time running for filing a post-judgment motion. Actual knowledge of entry of a judgment or an order, when clearly evidenced by the record starts the time running for filing a post-judgment motion. See Lang v. Bank of North Dakota, 377 N.W.2d 575, 578 (N.D. 1985). Actual knowledge of entry of the judgment or order requires action evident on the record on the part of the moving party. See Thorson v. Thorson, 541 N.W.2d 692, 695 (N.D. 1996).
See Rule 7.1, NDROC, which concerns the preparation of orders, decrees, findings of fact and conclusions of law.
SOURCES: Procedure Committee Minutes of ___________________; September 26-27, 1996, pages 10-12; April 25, 1996, pages 18-19; January 28-29, 1993, page 8; March 28, 1985, pages 1-3; January 19, 1984, pages 3-4; November 29-30, 1979, page 14; Rule 52, FRCivP.
SUPERSEDED: Section 28-1601, 28-1602, 28-1603, 28-1605, NDRC 1943.
CROSS REFERENCE: Rule 7.1 (Judgments, Orders and Decrees), NDROC, Rules 12 (Defenses and Objections-When and How Presented-By Pleading or Motion-Motion for Judgment on Pleadings), 41 (Dismissal of Actions), 56 (Summary Judgment), and 59 (New Trials-Amendment of Judgments), NDRCivP; Rule 35 (Scope of Review), NDRAppP.