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Rule 59 – New Trials

May 14, 2021 | Civil Procedure, Ohio

(A) Grounds for new trial. A new trial may be granted to all or any of the parties and on all or part of the issues upon any of the following grounds:

(1) Irregularity in the proceedings of the court, jury, magistrate, or prevailing party, or any order of the court or magistrate, or abuse of discretion, by which an aggrieved party was prevented from having a fair trial;
(2) Misconduct of the jury or prevailing party;
(3) Accident or surprise which ordinary prudence could not have guarded against;
(4) Excessive or inadequate damages, appearing to have been given under the influence of passion or prejudice;
(5) Error in the amount of recovery, whether too large or too small, when the action is upon a contract or for the injury or detention of property;
(6) The judgment is not sustained by the weight of the evidence; however, only one new trial may be granted on the weight of the evidence in the same case;
(7) The judgment is contrary to law;
(8) Newly discovered evidence, material for the party applying, which with reasonable diligence he could not have discovered and produced at trial;
(9) Error of law occurring at the trial and brought to the attention of the trial court by the party making the application.

In addition to the above grounds, a new trial may also be granted in the sound discretion of the court for good cause shown.

When a new trial is granted, the court shall specify in writing the grounds upon which such new trial is granted.

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 enter a new judgment.

(B) Time for certain post-trial motions, responsive briefs, and replies. Except as otherwise provided by statute, a motion for a new trial remittitur, additur, prejudgment interest, or attorney fees must be served within twenty-eight days of the entry of judgment or, if the clerk has not completed service of the notice of judgment within the three-day period described in Civ.R. 58(B), within twenty-eight days of the date when the clerk actually completes service. Unless otherwise provided by local rule or by order of the court, briefs in response to the motion shall be served within fourteen days of service of the motion, and a movant’s reply may be served within seven days of service of the response to the motion.
(C) Time for serving affidavits. When a motion for a new trial is based upon affidavits they shall be served with the motion. The opposing party has fourteen days after such service within which to serve opposing affidavits, which period may be extended for an additional period not exceeding twenty-one days either by the court for good cause shown or by the parties by written stipulation. The court may permit supplemental and reply affidavits.
(D) On initiative of court. Not later than twenty-eight 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.

The court may also grant a motion for a new trial, timely served by a party, for a reason not stated in the party’s motion. In such case the court shall give the parties notice and an opportunity to be heard on the matter. The court shall specify the grounds for new trial in the order.

Ohio. Civ.R. 59

Effective: July 1, 1970; amended effective July 1, 1996; July 1, 2013; July 1, 2015; amended effective July 1, 2018.

Staff Note (July 1, 2018 Amendment)

Division (B): Time for Certain Post-Trial Motions, Responsive Briefs, and Replies.

The amendment makes two substantive changes. First, it provides that if the clerk fails to serve the parties with notice of a judgment in the three-day period contemplated by Civ.R. 58(B), the time to serve a post-trial motion for judgment in favor of the movant does not begin to run until after the clerk does so. The purpose of the amendment is to avoid the harsh result that otherwise can occur if a would-be movant does not receive notice of the judgment. See, e.g., Wing v. Haaff, 1st Dist. Hamilton No. C-160257, 2016 Ohio-8258. This amendment brings the timing of post-trial motions under Civ.R. 59 in line with the timing of a notice of appeal in civil cases under App.R. 4(A)(3).

Second, the amendment provides that other types of post-trial motions (for remittitur, additur, prejudgment interest, and attorney fees) are subject to the same timing requirements as motions for a new trial unless a statute (e.g., R.C. 2323.51 ) provides a different time period. The rule change abrogates case law that provided shorter deadlines for some of these motions. See, e.g., Cotterman v. Cleveland Elec. Illuminating Co., 34 Ohio St.3d 48, 517 N.E.2d 536 (1987), paragraph one of the syllabus (motion for prejudgment interest due 14 days after judgment).

Staff Notes (July 1, 2015 Amendments)

Consistent with a similar amendment to Civ. R. 6(B), the amendment to Civ. R. 59(B) specifies, in the absence of a local rule or court order specifying a time for responding to a motion for new trial, a fallback time of fourteen days after service of the motion within which to serve responsive arguments. In the absence of a local rule or court order addressing replies, the amendment also permits the movant to serve reply arguments within seven days after service of the adverse party’s response. The time for filing responsive arguments and replies is governed by Civ. R. 5(D), again in the absence of a local rule or order of the court specifying a different time for filing.

Staff Notes (July 1, 2013 Amendments)

Rule 59(B) is amended to extend the time for serving a motion for new trial to 28 days after the entry of the judgment. This change is modeled on the 2009 amendment to Fed. R. Civ. P. 59(b) and is made for the same reasons that prompted the amendment to the federal rule.

Staff Note (July 1, 1996 Amendment)

Rule 59(A) Grounds

The amendment changed the rule’s reference from “referee” to “magistrate” in division (A)(1) in order to harmonize the rule with the language adopted in the 1995 amendments to Civ. R. 53. The amendment is technical only and no substantive change is intended.