RULE 52. FINDINGS BY THE COURT
(c) Judgment on partial findings. If during a trial without a jury a party has been fully heard on
with respect toan issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party on any with respect to a claim, counterclaim, cross-claim or third-party claim or defense that cannot under the controlling law be maintained or defeated without a favorable finding on that issue, or the court may decline to render any judgment until the close of all the evidence. Such a judgment shall be supported by findings of fact and conclusions of law as required by subdivision (a) of this rule.
Rule 52 was amended, effective March 1, 1986; March 1, 1994; March 1, 1997.
Rule 52 is derived from Rule 52, FRCivP, except for the deletion from subdivision (b) of references to Rule 58 as Rule 58 differs substantially from Federal Rule 58, and minor changes to conform to our judicial system.
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, 1986, to track the 1983 amendment to FRCivP 52(a).
Subdivision (a) was amended, effective March 1, 1994, to expressly provide that findings 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 that the 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.
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 28-29, 1995, pages 17-18; 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SUPERSEDED: Section 28-1601, 28-1602, 28-1603, 28-1605, NDRC 1943.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.