Amendments to North Dakota Rules as Adopted

Amendments to North Dakota Rules as Adopted - 20100279

N.D.R.Civ.P.

RULE 52. FINDINGS ~~BY THE COURT~~ AND CONCLUSIONS IN A NONJURY PROCEEDING; JUDGMENT ON PARTIAL FINDINGS

(a) ~~Effect~~ Findings and Conclusions.

In all actions tried upon the facts without a jury or with an advisory jury, the court shall find the facts specially and state separately its conclusions of law thereon and direct the entry of the appropriate judgment; and in granting or refusing temporary injunctions the court shall similarly set forth the findings of fact and conclusions of law which constitute the grounds of its actions. Requests for findings are not necessary for purposes of review. Findings of fact, including findings in juvenile matters, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. The findings of a master or juvenile referee, to the extent that the court adopts them, shall be considered as the findings of the court. It will be sufficient if the findings of fact and conclusions of law are stated orally and recorded in open court following the close of the evidence or appear in an opinion or memorandum of decision filed by the court. Findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in subdivision (c) of this rule.

(1) In General. In an action tried on the facts without a jury or with an advisory jury, the court must find the facts specially and state its conclusions of law separately. The findings and conclusions may be stated on the record after the close of the evidence or may appear in an opinion or a memorandum of decision filed by the court.

(2) For an Interlocutory Injunction. In granting or refusing an interlocutory injunction, the court must similarly state the findings and conclusions that support its action.

(3) For a Motion. The court is not required to state findings or conclusions when ruling on a motion under Rule 12 or 56 or, unless these rules provide otherwise, on any other motion.

(4) Effect of a Master's Findings. A master's findings, to the extent adopted by the court, must be considered the court's findings.

(5) Questioning the Evidentiary Support. A party may later question the sufficiency of the evidence supporting the findings, whether or not the party requested findings, objected to them, moved to amend them, or moved for partial findings.

(6) Setting Aside the Findings. Findings of fact, including findings in juvenile matters, whether based on oral or other evidence, must not be set aside unless clearly erroneous, and the reviewing court must give due regard to the trial court's opportunity to judge the witnesses' credibility.

(b) ~~Amendment~~ Amended or Additional Findings.

On motion served and filed no later than 15 days after 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.

On a party's motion filed no later than 28 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 accompany a motion for a new trial under Rule 59.

If during a trial without a jury a party has been fully heard on an issue and the court finds against the party on that issue, the court may enter judgment as a matter of law against that party with respect to a 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.

If a party has been fully heard on an issue during a nonjury trial and the court finds against the party on that issue, the court may enter judgment against the party on a claim or defense that, under the controlling law, can be maintained or defeated only with a favorable finding on that issue. The court may, however, decline to render any judgment until the close of the evidence. A judgment on partial findings must be supported by findings of fact and conclusions of law as required by Rule 52(a).

EXPLANATORY NOTE

Rule 52 was amended, effective August 1, 1971; March 1, 1986; March 1, 1994; March 1, 1997; March 1, 1998; March 1, 2004; March 1, 2011.

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. Prior decisions of the supreme 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. Subdivision (a) was further amended, effective March 1, 2004, to provide that findings of fact in juvenile matters, including referee findings adopted by the district court, are not to be set aside unless clearly erroneous. Prior decisions of the supreme court to the contrary are to be disregarded.

Subdivision (b) was amended, effective March 1, 2011, to increase the time to file a motion to amend findings from 15 to 28 days after notice of entry of judgment.

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.~~ A judgment on partial findings should not be entered before the close of evidence unless certification is appropriate under Rule 54(b).

~~See Rule~~ N.D.R.Ct. 7.1~~, N.D.R.Ct., which concerns~~ explains the preparation of orders, decrees, findings of fact and conclusions of law.

Rule 52 was amended, effective March 1, 2011, in response to the December 1, 2007, revision of the Federal Rules of Civil Procedure. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

Sources: Joint Procedure Committee Minutes of April 29-30, 2010, page 14; September 24-25, 2009, page 22, September 18-19, 2003, pages 24-25; September 26-27, 1996, pages 10-12; April 25, 1996, pages 18-19; 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~~ Fed.R.Civ.P. 52~~, FRCivP~~.

Statutes Affected:

~~Superseded: N.D.R.C. 1943 §§ 28-1601, 28-1602, 28-1603, 28-1605.~~

Considered: N.D.C.C. § 27-20-56 (1).

Cross Reference: ~~N.D.R.Ct. 7.1 (Judgments, Orders and Decrees),~~ N.D.R.Civ.P. 12 (Defenses and Objections - When and How Presented - By Pleading or Motion - Motion for Judgment on Pleadings), N.D.R.Civ.P. 41 (Dismissal of Actions), N.D.R.Civ.P. 54 (Judgment; Costs), N.D.R.Civ.P. 56 (Summary Judgment), N.D.R.Civ.P. 59 (New Trials -- Amendment of Judgments); N.D.R.App.P. 35 (Scope of Review); N.D.R.Ct. 7.1 (Judgments, Orders and Decrees); and N.D. Sup. Ct. R. 13 (Judicial Referees).