Rule 59. New Trials; Amendment of Judgments

• Library: South Carolina Rules Annotated (SCBar) (2019 Ed.)

RULE 59. NEW TRIALS; AMENDMENT OF JUDGMENTS

(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 a new trial in an action tried 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 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.

Notes:

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.

Notes to 1986 Amendments:

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.

Annotations Rule 59

59

Amend

"[O]n a motion for a new trial, the court may open the judgment if one has been entered and amend his findings of fact and conclusions of law or make new findings and conclusions and direct the entry of a new judgment." NCNB S.C. v. Floyd, 303 S.C. 261, 263, 399 S.E.2d 794, 795 (Ct. App. 1990).

Appeal

"[A]n appellate court will not consider issues raised for the first time on appeal." Rives v. Bulsa, 325 S.C. 287, 478 S.E.2d 878, 880 (Ct. App. 1996).

"This issue [jury charge] is not preserved for appeal. Neither the judge's charge nor any objection thereto is contained in the record. The burden is on the appellant to furnish a sufficient record on appeal from which this court can make an intelligent review." Wilson v. Wilson, 312 S.C. 172, 439 S.E.2d 323, 326 (Ct. App. 1993).

"[I]n the event timely post-trial motions are filed under Rule 59, simultaneously with or subsequent to the filing of a Notice of Appeal, the appellant shall notify the Clerk of this Court in writing. Upon receipt of such notice, the appeal shall be dismissed without prejudice. Any party can appeal within ten (10) days after the order disposing of the post-trial motions. A second filing fee will not be collected from a party who previously appealed." Hudson v. Hudson, 290 S.C. 215, 216, 349 S.E.2d 341, 341-42 (1986).

Attorney Fees

"A party who seeks attorney's fees has the burden to show that request is well-founded and failure to offer any evidence on the issue of attorney's fees precludes award." Abbot v. Gore, 304 S.C. 116, 119, 403 S.E.2d 154, 157 (Ct. App. 1991).

Disobey Court Order

In the appropriate case, "the trial court should not hesitate to grant a mistrial where its rulings are violated to the prejudice of those they are intended to protect." Toyota of Florence, Inc. v. Lynch, 314 S.C. 257, 442 S.E.2d 611, 615 (1994).

Final Determinations

"Assuming that Rule 59, SCRCP, applies to judgments only, the appealed order is a judgment; it 'finally determines the rights' of the parties." First Union Nat'l Bank v. Hitman, Inc., 306 S.C. 327, 330, 411 S.E.2d 681, 683 (Ct. App. 1991), affirmed, 308 S.C. 421, 418 S.E.2d 545 (1992).

Improper Argument

"[A] new trial motion should be granted in flagrant cases where vicious, inflammatory argument results in clear prejudice." Toyota of Florence, Inc. v. Lynch, 314 S.C. 257, 442 S.E.2d 611, 615 (1994).

Juror Disqualification

"A party seeking a new trial based upon the disqualification of a juror must show: 1) the fact of disqualification; 2) the grounds for disqualification; and 3) the moving party was not negligent in failing to learn of the disqualification before the verdict."

Morris v. Jensen, 309 S.C. 153, 155, 420 S.E.2d 710, 711 (Ct. App. 1992).

New Trial

Rule 59 "governs motions for new trial." Buxton v. Thompson Dental Co., 307 S.C. 523, 526, 415 S.E.2d 844, 846 (Ct. App. 1992), overruled, Boone v. Goodwin, 314 S.C. 374, 444 S.E.2d 524, 525 (1994).

In South Carolina, post-trial relief in the form of motions for judgment notwithstanding the verdict, new trial, or new trial nisi are available to defendants claiming a verdict excessive. Gamble v. Stevenson, 305 S.C. 104, 111, 406 S.E.2d 350, 354 (1991).

Rule 59 "requires that a motion for a new trial be no later than ten days after entry of judgment. Rule 59 does not provide any procedure by which a party can amend a motion for new trial or add new grounds after the expiration of the ten-day period." Rule 59 and 60(b) should be read together. "On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: . . . 2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b)." In this case even with due diligence evidence could not have been discovered, in time to move for a new trial under Rule 59(b) and appellant moved within a reasonable time after discovery of the new evidence thus he was entitled to amend his motion for a new trial to include allegations of a juror's disqualification. Gray v. Bryant, 298 S.C. 285, 286-87, 379 S.E.2d 894, 895 (1989).

Peremptory Challenge

Foster v. Spartanburg Hospital Systems, 314 S.C. 282, 442 S.E.2d 624 (Ct. App. 1994).

Workers' Compensation

In workers' compensation case, issues not ruled on in Circuit Court and no attempt to move pursuant to this rule to amend the Circuit Court's order for failure to consider the point does not preserve the issue for appellate review. Solomon v. W.B. Easton, 307 S.C. 518, 521, 415 S.E.2d 841, 843 (Ct. App. 1992).

59(a)

Directed Verdict Motion

"[A]n objection to the sufficiency of the evidence cannot be raised for the first time in a motion for a new trial; a motion for a directed verdict is a prerequisite to a motion for a new trial on the ground that the evidence does not support the verdict." Peay v. Ross, 292 S.C. 535, 537, 357 S.E.2d 482, 483 (Ct. App. 1987).

General

A trial court's authority to grant a new trial is rooted in Rule 59, SCRCP. Rule 59(a) permits a trial court to grant a new trial "to all or any of the parties and on all or part of the issues [ ] 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...." Winters v. Fiddie, 394 S.C. 629, 638-39, 716 S.E.2d 316, 321 (Ct. App. 2011).

General — New Trial Absolute

The "decision to grant a new trial is left to the sound discretion of the trial court...