Amending Findings Under Rule 52(b)

A party who loses a bench trial and finds a flaw in the judge's findings has a direct remedy in the trial court: a motion under Rule 52(b). On a party's motion filed no later than 28 days after entry of judgment, the court may amend its findings or make additional findings, and may amend the judgment accordingly; the motion may accompany a Rule 59 new-trial motion.¹

Each part of that sentence does separate work. The motion belongs to a party, so the process begins with the loser's request. The deadline counts from entry of judgment. The word may leaves the result to the judge's discretion. And the relief takes two forms: an amended finding changes a determination the judge already made, while an additional finding supplies a determination on an issue the decision left untouched. If either change alters who should prevail, the court may amend the judgment to match, so that the judgment does not contradict the corrected findings.

The clock deserves care because the judge's findings and the judgment are separate events. Rule 52(a)(1) lets the court state its findings and conclusions on the record after the close of the evidence, or in an opinion or memorandum of decision, and it requires that judgment be entered under Rule 58.² Rule 52(b) counts its 28 days from entry of that judgment. A party who counts from the day the judge read findings into the record, or from the date of a written opinion, may miscount and file late.

Hypothetical Illustration

After a bench trial over a construction contract, judgment against the owner is entered on March 1. The decision never addresses the owner's alternative defense that the builder waived the completion date. On March 20, the owner moves for additional findings on that defense. The motion comes nineteen days after entry of judgment, well inside the period that closes on March 29, so the court may make the finding and, if the defense succeeds, amend the judgment.

In a separate bench trial over an equipment lease, judgment against the lessee is also entered on March 1, and the decision likewise skips an alternative defense. The lessee waits until April 15 to ask for additional findings. That motion comes forty-five days after entry of judgment, so it falls outside the period Rule 52(b) allows, however sympathetic the judge may be.

The last clause of the rule addresses the new-trial motion. Because the Rule 52(b) motion may accompany a Rule 59 motion, a party who wants both corrected findings and a new trial can present the two requests together, with the Rule 52(b) request timely if filed within 28 days after entry of judgment. Accompany does not mean depend. The rule makes the Rule 59 motion a companion, not a prerequisite, so a party who needs only a corrected or completed set of findings may file under Rule 52(b) alone.

The motion matters most for what it protects on appeal. Appellate courts are courts of review, the opposite of courts of original action, and because they sit as courts of second resort, the ordinary rule is that, absent exceptional circumstances, a party may not raise on appeal an error it did not first ask the trial court to correct.³ A complaint that the findings are incomplete, meaning that the judge never decided an issue the party raised, is an error of exactly that kind, because the trial judge could have cured it by writing one more finding. A party who skips the Rule 52(b) motion gives the judge no chance to supply the missing finding and risks forfeiting the objection.⁴

A complaint of a different kind, that the evidence does not support a finding the judge did make, asks for nothing the judge could add. Nothing is missing; the objection attacks the finding itself. That complaint raises the separate question of evidentiary support, which the later section on appellate review addresses.

Three mistakes recur on exams: counting the 28 days from the judge's opinion instead of from entry of judgment; treating a Rule 59 motion as a condition of a Rule 52(b) motion; and assuming that a party who stays silent below about an omitted finding can still press the omission on appeal.

Amending Findings Under Rule 52(b)

Endnotes6