DO I NEED TO FILE A MOTION FOR A NEW TRIAL TO PROTECT MY RIGHT TO AN APPEAL?

November 16, 2010 § Leave a comment

Unlike the practice in Circuit Court, where a motion to set aside the verdict and for a new trial is a prerequisite to the right to appeal, it has never been the rule in Chancery Court that a motion for reconsideration or for a new trial or for relief from judgment operate in the same fashion.  In two opinions issued last year (I have not taken the time to dig them up, but they are out there), our appellate courts commented that no motion for a new trial had been filed by the appellant before taking appeal from Chancery.  It raised a question in my mind whether we were poised to go in a new direction. 

MRCP Rule 52(b) would seem to dispose of the matter, although I do not recall it being mentioned in the appellate decisions mentioned above.  It states:

When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised regardless of whether the party raising the question has made in court an objection to such findings or has filed a motion to amend them or a motion for judgment or a motion for a new trial.

Of course, the question of sufficiency of fact to support the findings is only one possible basis of appeal.  One may also appeal on the ground that the decision of the Chancellor is contrary to the law, or that there is a defect in personal jurisdiction (subject matter jurisdiction may be questioned for the first time at any point).  Is a motion necessary to preserve those points?

Without doing substantial research, I can only say that in my years of practice I never saw a case where an appeal from Chancery Court was rejected for failure to file a motion for a new trial.  Your mileage may vary.

Tagged: , ,

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

What’s this?

You are currently reading DO I NEED TO FILE A MOTION FOR A NEW TRIAL TO PROTECT MY RIGHT TO AN APPEAL? at The Better Chancery Practice Blog.

meta

%d bloggers like this: