Alabama Rules of Civil Procedure

Alabama Rules of Civil Procedure

VI. TRIALS

Rule 52.

Findings by the court; judgment on partial findings.

(a)

Effect. In all actions tried upon the facts without a jury or with an

advisory jury, the court may upon written request and shall when required by

statute, find the facts specially and state separately its conclusions of law thereon,

and judgment shall be entered pursuant to Rule 58; and in granting or refusing

interlocutory injunctions the court may similarly set forth the findings of fact and

conclusions of law which constitute the grounds of its action. Requests for findings

are not necessary for purposes of review. Where the court makes findings of fact

based upon determinations of credibility drawn from its observation of witnesses,

those findings shall not be set aside unless clearly erroneous, and due regard shall

be given to the opportunity of the trial court to judge of the credibility of the

witnesses. If an opinion or memorandum of decision is filed, it will be sufficient if

the findings of fact and conclusions of law appear therein. 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 Rule 41(b).

(b)

Amendment. Upon motion of a party filed not later than thirty (30)

days after judgment or entry of findings and conclusions the court may amend its

findings or make additional findings or may amend the judgment accordingly. The

motion may be made with a motion for a new trial 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 the findings may thereafter be raised

whether or not the party raising the question has made in the court an objection to

such findings or has made a motion to amend them or a motion for judgment or a

motion for a new trial.

(c)

Judgment on partial findings. 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 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 may be supported by findings of fact

and conclusions of law.

(dc) District court rule. Rule 52 applies in the district courts except that the

time period of thirty (30) days in Rule 52(b) is reduced to fourteen (14) days in all

cases except unlawful-detainer actions subject to appeal under §6-6-350, Ala.

Code 1975, and eviction actions subject to appeal under § 35-9A-461, Ala. Code

1975, in which actions the time period is reduced to seven (7) calendar days.

[Amended 3-1-83, eff.7-1-83; Amended eff. 10-1-95; Amended 5-29-2009, eff. 712009; Amended eff. 11-28-2012.]

Committee Comments on 1973 Adoption

The Rule provides for findings in all cases tried to the Court without a jury

where a statute provides for findings. In other situations, the court renders findings

in its discretion.

Where findings and conclusions have been requested and the request has

been granted, the commingling of findings and conclusions in the order is not

ground for reversal. See McCrea v. Harris County Houston Ship Channel

Navigation District, 423 F.2d 605 (5th Cir.1970).

The scope of review under present Alabama practice prevents reversal of

the trial court’s findings where the evidence was taken in open court, or partly so,

and the trial court has had the advantage of seeing the witnesses, unless the trial

court’s conclusion is plainly and palpably contrary to the weight of the evidence.

Albright Equipment Co., Inc. v. Waddell, 284 Ala. 329, 224 So.2d 878 (1969). See

also Lott v. Keith, 286 Ala. 431, 241 So.2d 104 (1970). Such findings have the force

of a jury verdict. Renfroe v. Weaver, 285 Ala. 1, 228 So.2d 764 (1969). However,

the Supreme Court of Alabama has not clothed the trial court’s findings with such

a presumption where the evidence is entirely in writing (depositions, pleadings,

stipulations, etc.). Smith v. Dalrymple, 275 Ala. 529, 156 So.2d 622 (1963); Hackett

v. Cash, 196 Ala. 403, 72 So. 52 (1916).

Federal Court construction of the Rule 52 requirements with respect to the

presumption attached to the trial court’s findings has produced a conflict in the

circuits. For the proposition that the appellate court cannot set aside findings based

entirely on documentary evidence unless “clearly erroneous” see Judge Clark’s

concurrence in Heim v. Universal Pictures Co., 154 F.2d 480, 491 (2d Cir.1946).

As draftsman of the Rule, his opinion is given support. See, e.g., H.K. Porter Co.

v. Goodyear Tire & Rubber Co., 437 F.2d 244 (6th Cir.1971); United States Steel

Corp. v. Fuhrman, 407 F.2d 1143 (6th Cir.1969), cert. denied 398 U.S. 958, 90 S.Ct.

2162, 26 L.Ed.2d 542. For the proposition that Rule 52, F.R.C.P. does not require

the “clearly erroneous” presumption when evidence is documentary, in whole or in

part, see Judge Frank’s opinion in Orvis v. Higgins, 180 F.2d 537 (2d Cir.1950),

cert. denied 340 U.S. 810 (1950), 71 S.Ct. 37, 95

L.Ed. 595. This position is supported by Moore’s Federal Practice, ¶ 52.04, p. 2688.

See also, Caradelis v. Refineria Panama, 384 F.2d 589 (5th Cir.1967).

The 1955 United States Supreme Court Advisory Committee recommended

clarification of Rule 52 so as to attach the presumption to all cases, regardless of

whether the evidence was oral or documentary. The Supreme Court declined to

follow this recommendation. The prevailing Alabama view falls in between the Clark

view and the Frank view of Rule 52 in that the presumption attaches when the

testimony is partially oral. Lott v. Keith, supra.

Rule 52 attaches a presumption to the findings of a master to the extent that

the trial court has adopted them. Under present Alabama practice, de novo

appellate review is available when evidence has been taken before a

commissioner. Pierce v. Murphree, 274 Ala. 20, 145 So.2d 207 (1962); Porter v.

Roberson, 263 Ala. 294, 82 So.2d 244 (1955). However, a reference before a

Register wherein oral evidence is taken is afforded the same presumption as a

jury’s verdict, and, therefore, the trial court’s findings. Davis v. Davis, 274

Ala. 277, 147 So.2d 828 (1962); Sellers v. Locke, 208 Ala. 169, 93 So. 876 (1922).

The Rule renders findings and conclusions unnecessary on Rule 56

(Summary Judgment) Motions. Routine solicitation of proposed findings and

conclusions as to such motions is therefore inappropriate.

Subdivision (b) of Rule 52 seems to provide adequate safeguards to all

parties and to the court for the amendment of findings after judgment. The time

limit for a motion to accomplish that objective is 30 days after judgment, which is

the time limit for filing motions for new trial, although motions for new trial are not

prerequisite to appeal if all grounds for review have already been presented to the

trial court, in a doubtful case it would be good practice to do so. See 6A Moore’s

Federal Practice, ¶ 59.14 (2d ed. 1971). Under Rule 58(a), the court, on a motion

for new trial, may amend findings and conclusions or make new findings and

conclusions and direct the entry of a new judgment. This procedure provides

adequate means of supplying any such deficiencies in preparation for appeal.

Committee Comments to October 1, 1995, Amendment to Rule 52

Subdivision (a). The amendment to the third sentence more accurately

states the effect of the ore tenus rule under Alabama practice.

Subdivision (c). This amendment incorporated a recent amendment and a

proposed amendment to F.R.Civ.P. 52(c). It effects a transfer from former

Ala.R.Civ.P. 41(b) of the vehicle for obtaining a judgment for failure of proof in a

nonjury case. It preserves the present Alabama rule under which the making of

findings and conclusions is discretionary.

Committee Comments to the July 1, 2009, Amendment to Rule 52(dc)

All judgments entered by a district court in unlawful-detainer actions, residential

and commercial, are subject to the 2006 amendment to § 6-6-350, Ala. Code 1975,

which reduced the appeal time from 14 to 7 days for appeals of such judgments to

the circuit court. Rule 52(dc) has been amended to require postjudgment motions

in unlawful-detainer actions under this rule to be filed within the seven-day appeal

period. If filed within that period such motions will be subject to the provisions of

Rule 59.1(dc) regarding the disposition of posttrial motions.

Committee Comments to Amendment to Rule 52(dc) Effective November

28, 2012

Issues have been raised regarding the applicability in the district court of

certain rules of procedure to possessory actions for eviction under the Alabama

Uniform Residential Landlord and Tenant Act, Ala. Code 1975, §35-9A-101 et seq.,

as amended, and to possessory actions for unlawful detainer under Ala. Code

1975, §6-6-310(2). This amendment addresses those issues.

First, language has been added to the (dc) provision of Rule 52 to make it

clear that the exception therein applies to both eviction and unlawful-detainer

actions. Second, with regard to computation of time in eviction and

unlawfuldetainer actions, the amendment makes it clear that the exclusion in Rule

6(a) of Saturdays, Sundays, and legal holidays for the computation of periods of

less than 11 days has no application to the computation of any time periods in the

district court in possory actions for eviction or unlawful detainer and that "day"

means "calendar day" in those computations.

Note from the reporter of decisions: The order amending, effective July

1, 2009, Rule 52(dc), Rule 55(dc), Rule 58(b), and Rule 59(dc), and adopting

effective July 1, 2009, the Committee Comments to the July 1, 2009, Amendment

to Rule 52(dc), the Committee Comments to the July 1, 2009, Amendment to Rule

55(dc), and the Committee Comments to the July 1, 2009, Amendment to Rule

59(dc) is published in that volume of Alabama Reporter that contains Alabama

cases from 7 So. 3d.

Note from the reporter of decisions: The order amending, effective

November 28, 2012, Rule 6(dc), Rule 12(dc), Rule 52(dc), Rule 55(dc), Rule

59(dc), and Rule 62(dc), and adopting the Committee Comments to the

Amendment to Rule 6(dc) Effective November 28, 2012, the Committee Comments

to the Amendment to Rule 12(dc) Effective November 28, 2012, the Committee

Comments to the Amendment to Rule 52(dc) Effective November 28, 2012, the

Committee Comments to the Amendment to Rule 55(dc) Effective November 28,

2012, the Committee Comments to the Amendment to Rule 59(dc) Effective

November 28, 2012, and the Committee Comments to the Amendment to Rule

62(dc) Effective November 28, 2012, is published in that volume of Alabama

Reporter that contains Alabama cases from ___ So. 3d.