Reporter’s Notes—2018 Amendment: Rule 52(a) is amended to extend its 5-day time periods to the 7 days consistent with the simultaneous “day is a day” amendments of V.R.C.P. 6. Rule 52(b) is amended for consistency with the current federal standard for motion practice, which was extended from 10 days to 28 days.
Reporter’s Notes—2006 Amendment: Rule 52(b) is amended for conformity with the Federal Rules and to establish internal consistency within the Vermont Rules of Civil and Appellate Procedure. See Reporter’s Notes to simultaneous amendments of V.R.C.P. 50(b) and (c).
Reporter’s Notes—1995 Amendment: Rule 52(c) is added for conformity with the simultaneous amendment of Rule 50 that incorporates the 1991 and 1993 amendments of Federal Rule 50(a). The new provision is virtually identical to Federal Rule 52(c), also added in 1991 and further amended in 1993. The amendment is intended to create a provision for nonjury trials paralleling that of Rule 50. New Rule 52(c) replaces part of Rule 41(b)(2) that had authorized dismissal when a plaintiff had failed to carry an essential burden of proof. A simultaneous amendment of Rule 41(b)(2) deleting that provision is intended to reflect that change. The final clause of the last sentence makes clear that, as in the deleted portion of Rule 41(b)(2), findings of fact and conclusions of law must be made even if no party requests them. See Reporter’s Notes to Rule 41(b)(2). As the federal Advisory Committee’s Note points out, new Rule 52(c) “authorizes the court to enter judgment at any time that it can appropriately make a dispositive finding of fact on the evidence.” “As under the former Rule 41(b), the court retains discretion to enter no judgment prior to the close of the evidence.” “Judgment entered under this rule differs from a summary judgment under Rule 56 in the nature of the evaluation made by the court. A judgment on partial findings is made after the court has heard all the evidence bearing on the crucial issue of fact, and the finding is reversible only if the appellate court finds it to be ‘clearly erroneous.’ A summary judgment, in contrast, is made on the basis of facts established on account of the absence of contrary evidence or presumptions; such establishments of fact are rulings on questions of law as provided in Rule 56(a) and are not shielded by the ‘clear error’ standard of review.”
Reporter’s Notes—1990 Amendment: Rule 52 is substantially revised, for the reasons set forth in the Reporter’s Notes explaining the 1990 amendment to Rule 7. See also Rule 78, amended at the same time. The amendments to the present rule break paragraph (a) into three subdivisions. Subdivision (a)(1) is the former first half of the first paragraph of Rule 52(a), with the sentence stating that requests for findings are not necessary for purposes of review moved down into the new second subdivision. The first subdivision is entitled “Procedure.” The relocated sentence pertains to the effect of failing to request findings, which is the subject of the new second subdivision, entitled “Effect.” The new second subdivision consists of the remainder of former Rule 52(a), with some important changes. The sentence referred to above is added. The sentence which formerly concluded the paragraph is deleted. That sentence stated that findings of fact and conclusions of law were unnecessary on decisions on motions under Rules 12 or 56 or any other motion except as provided in Rule 41. As explained in the Reporter’s Notes following the 1990 amendment to Rule 7, that rule was of more limited application than it suggested and did not further the fundamental goals of these rules. See Goshy v. Morey, 149 Vt. 93, 539 A.2d 543 (1987). The new third subdivision, entitled “Other Required Findings,” states the general rule adopted in the wake of Goshy v. Morey, supra. If the decision of the court is based upon a contested issue of fact and is or could be dispositive of a claim or an action, the court must make findings and conclusions if a party so requests within five days of the notice of decision. See V.R.C.P. 77(d) (service by clerk of notice of orders and judgments); V.R.C.P. 58 (entry of judgment); V.R.C.P. 54(a) (“judgment” defined) and V.R.C.P. 6(a), (b) and (e) (computation and enlargement of time, and additional time after service by mail).
Reporter’s Notes—1987 Amendment: Rule 52(a) is amended to clarify the interpretation given the rule in Valsangiacomo v. Paige & Campbell, Inc., 136 Vt. 278, 388 A.2d 389 (1978), and Krupp v. Krupp, 126 Vt. 511, 513, 236 A.2d 653, 654 (1967), which appeared to flatly prohibit trial judges from adopting verbatim the language of proposed findings. The policy behind the rule— encouragement of thorough sifting and evaluation of evidence by the trial courts—can be effectuated without such draconian prohibitions. So long as the findings are in proper form, reflect careful review of all the evidence, and are not clearly erroneous, verbatim adoption of proposed findings should not be cause for automatic reversal. See Anderson v. Bessemer City, 470 U.S. 564, 572, 105 S. Ct. 1504, 1511, 84 L. Ed. 2d 518, 527 (1985) (under F.R.C.P. 52, “even when the trial judge adopts proposed findings verbatim, the findings are those of the court and may be reversed only if clearly erroneous.”) However, it continues to be the better practice for the trial courts to prepare their own findings, and in either case conclusory statements unsupported by the record may not survive review. Anderson, supra; New England Power Co. v. Town of Barnet, 134 Vt. 498, 367 A.2d 1363 (1976). Nor does mere recitation of testimony suffice. Krupp v. Krupp, supra, 126 Vt. at 514, 236 A.2d at 655.
Reporter’s Notes—1984 Amendment: This rule is amended in two respects: (1) to authorize the court to set a date by which requests for findings must be submitted; (2) to allow findings to be stated orally on the record. The latter amendment is part of a series being made to conform to recent amendments to the Federal Rules of Civil Procedure. See Reporter’s Notes—1984 Amendment to Rule 7. Although the rule provides that parties need not submit requests for findings to secure review, such requests are helpful to the fact finder. The addition to the rule allows the court to set a cut-off date on requests so that they can be used in forming findings. The cut-off date may not be earlier than the close of the evidence. The court may, however, require that the parties submit preliminary requests for findings at an earlier date as long as the parties have an opportunity to amend the preliminary requests in light of the evidence. The second amendment allows findings to be stated orally on the record. This method may lighten the burden on the judge in some nonjury cases. See Christensen, A Modest Proposal for Immeasurable Improvement, 64 A.B.A.J. 693 (1978). A former Vermont statute required that findings be in writing and be signed by the court. See Micalite Sign Corp. v. State Highway Department, 126 Vt. 498, 236 A.2d 680 (1967). While the rule does not expressly continue this requirement, the absence of specific authorization for oral findings may be interpreted as an intent to carry on the former practice. The specific authorization is added by this amendment. The amendments will apply in District Court by virtue of the incorporation of this rule into D.C.C.R. 52.
Reporter’s Notes: This rule is similar to Federal Rule 52, with modifications taken from 12 V.S.A. § 2385 (now superseded) and former County Court Rule 30.2 (applicable in chancery by virtue of former Chancery Rule 56), which together incorporated many provisions of the federal rule. Rule 52(a) requires the court in nonjury actions to state its findings of fact and conclusions of law, or to express them in an opinion or memorandum of decision, on request of a participant in the trial or upon its own initiative. The rule departs from the former statute in requiring the separate statement of conclusions of law. This provision is desirable in that it leads the trial court to a clearer statement of the theory of its decision, thus aiding the reviewing court. See 2B Barron & Holtzoff, Federal Practice and Procedure § 1121 (Wright ed. 1961). Cf. 30 V.S.A. § 11(b) (Public Service Board to state rulings of law when excepted to). The provision for findings only on request is a further departure from the statute. Cf. Maine Rule 52(a). Previously, findings were required unless waived. The rule in the interests of uniformity adopts the federal “clearly erroneous” test for appellate review of findings. The test under the statute was that findings should stand if there was “any evidence fairly and reasonably tending to support them.” There should be little difference in result between these tests. Compare Little v. Little, 124 Vt. 178, 182, 200 A.2d 276 (1964), with 2 B Barron & Holtzoff, supra, § 1133 (Wright ed. 1961). The rule adopts from the statute, however, the provision that regard is to be given on appeal to the trial court’s determination of the weight of the evidence, as well as the credibility of the witnesses, thus resolving a conflict in the federal authorities as to the scope of review on nontestimonial evidence. See 2B Barron & Holtzoff, supra, § 1132. Provisions of the statute limiting the appellate court to consideration of the facts found except on evidentiary questions or where review is de novo, and directing the appellate court to the exhibits and transcript for resolution of factual questions, have been omitted from the rule as expressing what would ordinarily be standard appellate practice in any event. The rule provides that a master’s findings under Rule 53 are to be considered the findings of the court and makes findings and conclusions unnecessary on most motions. Rule 52(b) provides for a motion for amendment of findings within 10 days after entry of judgment, a procedure comparable to the provision of former County Court Rule 30.2 for objection to findings within 15 days after the filing thereof. Like 12 V.S.A. § 2385, the rule does not require an objection or motion to amend as a basis for subsequent attack upon the sufficiency of the evidence to support the findings.