The Importance of NRCP 52(b) in Bringing an Appeal- The Writ

After a district court enters its final judgment, there is often a flurry of post-judgment motion practice. These motions tend to focus on NRCP 59 and NRCP 60, which allow a party to request a new trial or to alter or amend or set aside a judgment. A sometimes-overlooked post-judgment motion is one based on NRCP 52(b), which allows a party to move a district court to amend or make additional findings of fact. The Supreme Court jurisprudence is not entirely clear as to whether a losing party must avail itself of this rule in order to preserve an issue for appeal.

Language of the Rule

NRCP 52 sets forth different requirements for the district court to make findings of fact and conclusions of law, depending upon the type of proceeding that occurred. After a bench trial or in an order that grants or denies an interlocutory injunction, “the court must find the facts specially and state its conclusions of law separately,” either on the record after the close of evidence or in a written opinion. NRCP 52(a)(1)-(2). Generally, when ruling on a motion, a district court need not state findings or conclusions but must “state on the record the reasons for granting or denying a motion.” NRCP 52(a)(3).

Insufficient or incorrect findings can be addressed before a party takes an appeal. “On a party’s motion filed no later than 28 days after service of written notice of entry of judgment, the court may amend its findings — or make additional findings — and may amend the judgment accordingly.” NRCP 52(b). A motion to amend or make additional finds may be filed with a motion for a new trial under Rule 59.

Appellate Review of Findings

On appeal, the reviewing court must not set aside findings that are based on conflicting evidence unless they are clearly erroneous. The appellate court must give deference to the district court’s credibility determinations. NRCP 52(a)(6).

The Supreme Court has occasionally complained in its published opinions about the difficulty presented on appeal when a district court has failed to make adequate findings.  See Willard v. Berry-Hinckley Indus., 136 Nev. 467, 470, 469 P.3d 176, 180 (2020). “Without an explanation of the reasons or bases for a district court's decision, meaningful appellate review, even a deferential one, is hampered because we are left to mere speculation.” Jitnan v. Oliver, 127 Nev. 424, 433, 254 P.3d 623, 629 (2011).

 “[T]he [appellate] court will not imply findings to support the judgment where the record is not clear.” Com. Cabinet Co. v. Mort Wallin of Lake Tahoe, Inc., 103 Nev. 238, 240, 737 P.2d 515, 517 (1987). Instead, the court will remand to the district court. However, there are examples of where the Supreme Court has been willing to imply findings where the record can support them. See Griffin v. Westergard, 96 Nev. 627, 632, 615 P.2d 235, 238 (1980); Heidtman v. Nevada Indus. Comm'n, 78 Nev. 25, 30, 368 P.2d 763, 765 (1962). Moreover, the Supreme Court has indicated that where findings of fact are inadequate, it may read them “in conjunction with” conclusions of law to uphold a trial court’s judgment. Bowers v. Edwards, 79 Nev. 384, 388, 385 P.2d 783, 785 (1963).

Appellant’s Burden to Preserve a Challenge to Findings

Faced with this case law, a would-be appellant must decide whether to file a NRCP 52(b) motion when a district court issues an adverse judgment with deficient or incorrect findings. Often, when it is clear the district court has not been, and is not going to be, receptive to the losing side’s arguments, it seems futile to file yet another motion. Notably, “[a] party may later question the sufficiency of the evidence supporting the findings, whether or not the party requested findings, objected to them, moved to amend them, or moved for partial findings.” NRCP 52(a)(5).

 However, beware of a potential waiver. The Supreme Court has held that where an issue “was before the lower court [but] the trial court failed to refer to that issue in any respect in its finding of fact of fact and conclusions of law or judgment” and the “[a]ppellant failed to move to amend the findings or judgment, ... the question was not preserved for appellate consideration.” Solar, Inc. v. Elec. Smith Const. & Equip. Co., 88 Nev. 457, 459, 499 P.2d 649, 649–50 (1972). This holding was cited in one unpublished disposition to find that the appellant had waived an argument on appeal by not filing a NRCP 52(b) motion in the district court. See Kaufman v. HLK, LLC, 129 Nev. 1130, *3, 2013 WL 5230797 (Table) (unpublished disposition 2013).

The bottom line is that you should carefully review the district court’s findings of fact and conclusions of law to ensure they address all issues you may want to raise on appeal. If not, even when you almost certainly are facing a denial, move the district court to amend or make additional findings to avoid problems on appeal. Although you are likely loathe to engage in further motion practice before the same district judge who already decided against your client, it may be the most prudent path forward.