Chapter 59 New Trials; Amendment of Judgments

• Library: South Carolina Civil Procedure (SCBar) (2020 Ed.)

Chapter 59 New Trials; Amendment of Judgments Rule 59¹

(a) Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues (1) in an action in which there has been a trial by jury, for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the State; and (2) in an action tried without a jury, for any of the reasons for which rehearings have heretofore been granted in the courts of the State. On a motion for new trial in an action without a jury, the court may open the judgment if one has been entered, take additional testimony, amend findings of fact and conclusions of law or make new findings and conclusions, and direct the entry of a new judgment.

(b) Time for Motion. The motion for a new trial shall be made promptly after the jury is discharged, or in the discretion of the court not later than 10 days thereafter. In non-jury actions the motion shall be made not later than 10 days after the receipt of written notice of the entry of judgment or of the filing of an order disposing of the action, if no judgment has been entered.

(c) Time for Serving Affidavits. When a motion for new trial is based upon affidavits they shall be served with the motion. The opposing party has 10 days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding 20 days either by the court for good cause shown or by the parties by written stipulation. The court may permit reply affidavits.

(d) On Initiative of the Court. Not later than 10 days after entry of judgment, the court of its own initiative may order a new trial for any reason for which it might have granted a new trial on motion of a party. After giving the parties notice and an opportunity to be heard on the matter, the court may grant a motion for a new trial, timely served, for a reason not stated in the motion. In either case, the court shall specify in the order the grounds therefor.

(e) Motion to Alter or Amend a Judgment. A motion to alter or amend the judgment shall be served not later than 10 days after receipt of written notice of the entry of the order.

(f) Time for Appeal; End of Term. The time for appeal for all parties shall be stayed by a timely motion under this Rule and shall run from the receipt of written notice of entry of the order granting or denying such motions. The time within which to make the motions under this Rule shall not be affected by the ending of a term of court or departure of the judge from the circuit, and the trial judge shall retain jurisdiction of the action for the purpose of hearing and disposing of such motion if not heard and disposed during the term. Except by consent of the parties, argument on the motion shall be heard in the circuit where the trial was held. The motion may in the discretion of the court be determined on briefs filed by the parties without oral argument.

(g) Judge to be Provided with Copy. A party filing a written motion under this rule shall provide a copy of the motion to the judge within ten (10) days after the filing of the motion.

Note:

This Rule 59 is substantially the Federal Rule. It is consistent with Code § 15-27-150. Rule 59(b) provides that if the motions are not made and heard during the term, the more precise and definite Federal practice of allowing 10 days after the entry of judgment to make the motion is more equitable. Rule 59(f) is added to provide that departure from the circuit does not deprive the trial judge of jurisdiction to rule on motions under this Rule and Rules 50, 52 and 60. It also provides flexibility for the trial judge to determine the motions on briefs without oral argument.

Note to 1986 Amendment:

In jury trials, post-trial motions are made promptly at the end of the trial, or at that time the court, upon motion, may grant an additional ten days to make them. These amendments to Rules 59(b) and (e) and (f) conform the language to that of Rules 50 and 52, and provide that the time for appeal commences upon the receipt of written notice of entry of the order disposing of such motions which was prior state practice, rather than the date when the court signed the order which is the practice in the federal courts.

Note to 1998 Amendment:

This amendment adds Rule 59(g). It is intended to help insure that the judge is promptly notified that the motion has been filed.

A. Motion for New Trial

Rule 59 does not list the circumstances that justify a new trial but instead provides that a new trial may be granted for any of the reasons for which new trials have heretofore been granted. Similarly, a new trial can be had in a non-jury action for any reason which justified a rehearing.

The time for moving for a new trial in a jury action is strictly limited. The motion must be made promptly after the jury is discharged, unless the court at that time grants up to ten days to make the motion.² Rule 6(b) forbids the court or the parties from extending this time period. In non-jury actions, the motion must be filed within ten days of receipt of written notice of the entry of judgment, which may be before receipt of the order or judgment.³ Formal notice from the court is not required.⁴

A timely motion for a new trial under Rule 59 tolls the time for appeal until the motion is resolved,⁵ but the enforcement of the judgment is stayed automatically for ten days from the date of its entry, unless otherwise ordered by the court.⁶ Rule 59(g) requires that a copy of the motion must be provided to the judge within ten days of its filing but the failure to do so does not affect the time to appeal.⁷ The trial court may properly deny the motion to alter or amend the judgment, however, based solely on the movant's failure to provide a copy of the motion to the trial court judge within ten days of filing.⁸

The motion must assert the grounds for a new trial. The motion can be amended to assert grounds that could not have been discovered when the motion was filed but were uncovered before it was argued or decided.⁹ Once a timely motion has been filed, the trial judge may grant a new trial on grounds not asserted in the motion.

Even without a motion being filed, the trial judge may order a new trial sua sponte within ten days of entry of judgment.¹⁰ The trial court cannot, however, grant a new trial sua sponte on a ground not raised by a party.¹¹ That is, an unobjected to trial error cannot be advanced as grounds for a new trial.¹²

When the issues are separate and distinct the court may grant a new trial on some but not all of the issues.¹³ However, the court may grant a new trial on damages alone only when the plaintiff would have been entitled to a directed verdict on liability.¹⁴

The motion for a new trial is often joined with a renewed motion for a directed verdict or judgment notwithstanding the verdict. Rule 50(c) and (d) require that the trial court consider them together. However, a motion for a directed verdict is not a prerequisite for a motion for new trial.¹⁵ These motions must be carefully distinguished. The motion for a directed verdict, renewed as a JNOV, asks whether there is enough evidence to create an issue of fact for the jury. The evidence, and all the inferences, are viewed in the light most favorable to the non-moving party. When this minimum level of proof is met, the motion for a directed verdict or JNOV is denied, even though more credible and extensive proof was presented by the opposition. The motion for a new trial does not challenge the sufficiency of the evidence as does the directed verdict or JNOV.¹⁶ The new trial motion assumes that the evidence is enough to go to the jury but asks whether, in light of all the evidence, the jury reached the appropriate result, the amount of the verdict is inadequate, excessive or shocks the conscience, or whether there was an error law affecting the verdict.

The motion for a new trial and the motion for relief from a judgment under Rule 60 are also related. The same grounds may support relief under either rule.¹⁷ However, the time for seeking a new trial under Rule 59 is limited and expires no later than ten days after receipt of written notice of the entry of judgment, while relief under Rule 60 may be granted within a "reasonable time" which for certain grounds may be no longer than one year.¹⁸ Moreover, the grounds for relief differ under the respective rules with Rule 60 limited to five specific grounds for relief.

B. Grounds for New Trial

In general, the judge has the power to order a new trial whenever necessary to prevent injustice. The rule does not enumerate all the grounds that might justify a new trial, but they fall into four general categories: (1) judicial errors, principally in the admission or exclusion of evidence¹⁹ or the instructions; (2) misconduct of the jury or counsel; (3) a verdict against the weight of the evidence; and (4) an excessive or inadequate verdict. Newly discovered evidence is another basis for a new trial but because a motion for a new trial must be made promptly that ground is usually asserted under Rule 60(b)(2) (this ground is discussed in Chapter 60).²⁰ Rule 59(d) authorizes the trial court to grant a new trial on its own motion and for grounds not articulated in a timely new trial motion. An order granting or denying a new trial is immediately appealable.²¹

The availability of a new trial may be limited by two factors. First, there must be a proper objection to the trial error alleged to justify the new trial.²² Second, Rule 61, "Harmless Error," provides that a new trial should be ordered only if the error complained of is inconsistent with substantial justice, and the rule specifically instructs the court to disregard any errors which do not affect the substantial rights of the parties.

1. Trial Errors; Misconduct of Counsel or Jury

The court may grant a new trial for prejudicial errors committed during the trial. If, after the verdict and upon...