TITLE SIX — TRIAL
Rule 35. New Trial; Altering or Amending a Judgment
New Trial on Motion; Grounds.
In General. On motion, the court may grant a new trial upon all or some of the issues, and to any party, after a trial by the court or after a trial to a jury impaneled under Rule 27.1.
Grounds. A new trial may be granted for any of the following:
that the verdict or the decision is against the clear weight of the evidence;
that the damages awarded are excessive or inadequate, appearing to have been given under the influence of passion, prejudice, or mistake;
error of law occurring at the trial and duly objected to, where the error resulted in a miscarriage of justice within the meaning of 7 R. Stat. § 132.401;
newly discovered evidence which by due diligence could not have been discovered in time to be offered at the trial and which would probably change the result;
accident or surprise against which ordinary prudence could not have guarded;
misconduct of a party, of an attorney, of a witness, or of a juror;
irregularity in the proceedings, or an order of the court or an abuse of discretion, by which a party was prevented from having a fair trial;
that the proceeding communications, or a document constituting part of the record, have been lost, corrupted, deleted, or edited, and the lost matter is material and cannot be reconstructed; or
that the judgment is not supported by the findings which Rule 34 requires, where the deficiency has not been cured under Rule 34(11).
Partial New Trial. A new trial may be limited to specified issues, including the issue of damages alone, where the issues are fairly separable and the party opposing the limitation is not thereby prejudiced.
Harmless Error. No new trial shall be granted for the improper admission or rejection of evidence, or for error as to any matter of pleading or procedure, unless, after an examination of the entire case, it appears to the court that the error complained of resulted in a miscarriage of justice, as 7 R. Stat. § 132.401 and Rule 43 require.
Remittitur; Additur. Where the sole ground is that the damages awarded are excessive or inadequate, the court may deny a new trial upon the condition that a party consent to a stated reduction or increase in the award. Consent shall be filed within a period the court fixes; upon consent the court shall enter judgment in the amount stated, and upon the failure of consent the new trial shall proceed.
Time.
Motion for a New Trial. A motion for a new trial shall be filed not later than seventy-two (72) hours after the entry of judgment.
Computation. The period runs continuously in Coordinated Universal Time from the moment at which the entry of judgment was recorded. There are no court days, court hours, or holidays, and the period is not enlarged by reason of the hour or day upon which it ends. The electronic filing system computes no deadline; the timeliness of a motion is enforced upon the objection of a party or by the court on its own.
Enlargement. The period fixed by this subdivision may be enlarged only upon motion made before it has run and only for good cause shown. It shall not be enlarged after it has run, and the provision of Rule 6(2) permitting an act to be done after the expiration of a period upon a showing of excusable neglect does not apply to it.
Affidavits. Where a motion under this rule is based upon affidavits, they shall be filed with the motion. An opposing party may file opposing affidavits within forty-eight (48) hours after the motion is accepted for filing. The court may permit reply affidavits.
Further Action After a Non-Jury Trial. Upon a motion for a new trial after a trial without a jury, the court may open the judgment if one has been entered, may take additional testimony, may amend findings of fact and conclusions of law or make new ones, and may direct the entry of a new judgment. Where the court takes additional testimony, the trial is reopened only to the extent the court states, and Title Six governs the taking of that testimony.
New Trial on the Court’s Initiative; Reasons Not Stated in the Motion. Not later than seventy-two (72) hours after the entry of judgment, the court on its own may order a new trial for any reason that would justify granting one on a party’s motion. After giving the parties notice and an opportunity to be heard, the court may grant a timely motion for a new trial for a reason not stated in the motion. In either event the court shall specify its reasons in the order, which shall be entered upon the docket and stated in the proceeding communications.
Motion to Alter or Amend a Judgment.
Time. A motion to alter or amend a judgment shall be filed not later than seventy-two (72) hours after the entry of the judgment, and subdivision (2)(b) and (2)(c) govern the computation and enlargement of that period.
Grounds. The court may alter or amend a judgment to correct a manifest error of law or of fact; to give effect to newly discovered evidence which by due diligence could not have been discovered before judgment; to give effect to an intervening change in the controlling law; or to prevent manifest injustice.
Limits. A motion under this subdivision shall not be used to relitigate a matter already decided, nor to advance an argument or evidence that could have been advanced before judgment.
Distinctions. A clerical mistake or an error arising from oversight or omission is corrected under Rule 42(1) and not under this subdivision. A request that the court amend or add findings is made under Rule 34(7). Relief from a final judgment upon a ground stated in Rule 42(2) is sought under that rule and is not limited by the period fixed by this subdivision.
Conduct of a New Trial. A new trial proceeds under Title Six as though no former trial had been had, except so far as the order granting it limits the issues to be retried. Testimony given at the former trial is not evidence at the new trial unless it is offered and is admissible; a deposition may be used as Rule 25 provides. An exhibit admitted at the former trial may be re-offered, and the filing through which it was made part of the record need not be filed again.
Appeal of an Order Granting a New Trial. Upon the entry of an order granting a new trial, the party aggrieved may prosecute an appeal to the Supreme Court without waiting for final judgment, as 7 R. Stat. § 132.402 provides. Where such an appeal is taken, the new trial shall not proceed while the appeal is pending unless the Supreme Court orders otherwise. An order denying a new trial is not separately appealable, but the denial may be assigned as error upon an appeal from the judgment.
Effect of a Pending Motion. While a timely motion under this rule, or under Rule 33(2) or Rule 34(7), is pending, the court may stay the execution of the judgment and any proceeding to enforce it, as Rule 44(2) provides. The time within which an appeal may be taken is governed by the Ridgeway Rules of the Supreme Court.
Successive Motions. A second motion for a new trial upon a ground that was available when the first was made shall not be entertained. Nothing in this rule limits the power of the court to grant relief from a judgment or order under Rule 42.
Filing. A motion under this rule is a filing made through the electronic filing system and is served upon every other participant when it is accepted for filing. The electronic filing system permits no filing to be amended or withdrawn; a defective motion is cured only by a corrected refiling, which bears its own later filing date and shall itself be filed within the period this rule fixes.