RULE 52. FINDINGS BY THE COURT
Upon On motion of a party made not served and filed no later than 10 15 days after notice of entry of judgment, the court may amend its findings--or make additional findings--and may amend the judgment accordingly. The motion may be made with accompany a motion for a new trial under pursuant to Rule 59. When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support supporting the findings may thereafter be later questioned raised whether or not the party raising the question has made in the district court an objection to such in the district court objected to the findings, moved or has made a motion to amend them or a motion for judgment, 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 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 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SUPERSEDED: Section 28-1601, 28-1602, 28-1603, 28-1605, NDRC 1943.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.