Reporter’s Notes:

(2008): Rule 52 has been amended to require findings of fact and rulings of law in jury-waived cases in the District Court and Boston Municipal Court, but only if a party has submitted, before the beginning of any closing arguments, proposed findings and rulings. This differs from practice in the Superior Court under Rule 52(a), which requires Superior Court judges to make findings and rulings as a matter of course in jury-waived actions, whether or not a party has submitted proposed findings and rulings.

Requiring a party to submit proposed findings and rulings as a condition to the court’s making findings and rulings is justified by the volume and nature of the civil caseload in the District Court and Boston Municipal Court. The rule also provides a party with the absolute right to a three-day period in which to submit supplemental proposed findings and rulings, as long as that party, before the beginning of any closing arguments, has filed proposed findings and rulings and has made a request to file supplemental proposed findings and rulings. The proposed findings and rulings and the request to file supplemental proposed findings and rulings may be contained in the same document.

The amendments to Rule 52(c) include a general description of the format and content of proposed findings and rulings by a provision that they be set forth concisely and in separately numbered paragraphs covering one subject for each request. In doing so, the rule intends to state a preferred, but not mandatory, format and content for proposed findings and rulings.

A judge in the District Court or Boston Municipal Court may make findings and rulings, sua sponte, even where doing so is not required by this rule.

Simultaneously with the amendments to Rule 52(c), Rule 64A, Requests for Rulings of Law in District Court, was repealed. The repeal of Rule 64A eliminates the “requests for rulings” procedure that had been in place in the District Court and Boston Municipal Court. Under that procedure, a party could obtain rulings of law from the court by filing requests for rulings of law prior to the beginning of any closing arguments. This prior procedure merely required the court to allow or deny a requested ruling of law, and did not require the court to make its own rulings of law. Under the prior procedure, there was no mechanism for a party to require findings of fact in District Court and Boston Municipal Court jury-waived actions. Under the amended language of Rule 52(c), a party now has the opportunity to require both findings of fact and rulings of law from the trial judge.

The repeal of Rule 64A also eliminates the provisions regarding “warrants” requests. These were requests that the evidence warrants a finding for the requesting party or does not warrant a finding for the opposing party.

The requirement of findings and rulings under Rule 52(c) applies to all District Court and Boston Municipal Court cases governed by the Massachusetts Rules of Civil Procedure, that is, “cases traditionally considered tort, contract, replevin, or equity actions, except small claims actions.” Rule 81(a)(2). No attempt has been made in the rule or in the Reporter’s Notes to list all of the types of District Court and Boston Municipal Court actions in which findings and rulings are not required. Supplementary process is one example where findings and rulings should not be required, since supplementary process is a statutory proceeding not falling within the ambit of cases that would be “traditionally considered tort, contract, replevin, or equity.”

Summary process, however, presents a different example and a different result. Although under the Massachusetts Rules of Civil Procedure, findings and rulings are not required in District Court and Boston Municipal Court summary process actions (because of the language in Rule 81(a)(2) ), the application of Rule 1 of the Uniform Summary Process Rules would result in a requirement of findings and rulings in District Court and Boston Municipal Court summary process cases pursuant to the procedure set forth in Rule 52(c). Rule 1 of the Uniform Summary Process Rules adopts the Massachusetts Rules of Civil Procedure, “insofar as the latter are not inconsistent with” the Uniform Summary Process Rules. Thus, Uniform Summary Process Rule 1 would make amended Rule 52(c), with its requirement of findings and rulings in the District Court and Boston Municipal Court upon the filing of proposed findings and rulings, applicable to summary process cases in those courts. It should be noted that in summary process cases in the Superior Court and Housing Court, findings and rulings are required as a matter of course pursuant to Rule 52(a) (made applicable to summary process cases in those courts by virtue of Uniform Summary Process Rule 1 ).

(1996): The amendments to Rule 52 effective in 1996 add new sections (c) and (d), applicable in the District Court, and retitle the headings to Rule 52(a) and (b). New sections (c) and (d) of Rule 52 are identical to the now-repealed provisions of Dist./Mun. Cts. R. Civ. P. 52(a) and (b), respectively, The “Comments” to now-repealed Dist./Mun. Cts. R. Civ. P. 52 provided as follows:

The revision of paragraph (a) [now Mass. R. Civ. P. 52(c) ] evidences the decision not to follow the MRCP procedure of requiring an automatic set of judicial findings of fact and conclusions of law in every case tried without a jury. Rather, this rule provides that the court may make detailed findings of fact and rulings of law, and is required, as has been true in the past, to make rulings of law in response to requests for rulings submitted by any of the parties to the litigation. This procedure, and the whole mechanism of appeal to the Appellate Division of which it is the foundation, is set forth in Rule 64 of these rules. [Since July 1, 1994, appeal to the Appellate Division is governed by the District/Municipal Courts Rules for Appellate Division Appeal.]

The decision to favor the present appeal mechanism over the MRCP approach in cases tried without a jury is based on several factors. Important among these is the fact that in many of the District Courts, and particularly the Boston Municipal Court, a judge will frequently hear a large number of civil cases in the course of a single day, and on successive days, and the fact that most of these cases turn on questions of fact, which in turn relate to questions of credibility. If there were a mandatory requirement that written findings and rulings be made in each case under such circumstances, this would impose a tremendous burden in those courts. Even if adequate stenographic assistance were available to these courts for this purpose (which is not the case), this would require a large expenditure of judicial time in preparing such findings where the element of credibility would be decisive, and would merely bring into play the provisions of MRCP, Rule 52, that “[f]indings of fact shall not be set aside unless clearly erroneous, and due regard shall be given to the opportunity of the trial court to judge of the credibility of the witnesses.” In short, the present appellate mechanism is well suited to current District Court jurisdiction, and is well understood by those members of the bar familiar with District Court practice.

A clause has been added in the first sentence of paragraph (b) [now Mass. R. Civ. P. 52(d) ] which allows the court on its own initiative to amend its findings and judgment, so long as it acts within ten days of the entry of judgment.

Lastly, the words “if any” have been added after the word “findings” in the first sentence of paragraph (b) [now Mass. R. Civ. P. 52(d) ]. This is consistent with the fact that this rule leaves it discretionary with the trial court whether findings of fact will be made.

It should be noted that although findings of fact and conclusions of law are not generally required in the District Court, section (c), by its reference to Rule 65.3 dealing with civil contempt, will require such findings and conclusions in District Court civil contempt actions.

(1973): Rule 52 is almost identical to Federal Rule 52. It omits the phrase “or with an advisory jury” in the first sentence, because such juries are unknown to Massachusetts practice, and have not been included in Rule 39. Rule 52 does constitute a departure from the Massachusetts practice articulated by the court in Matter of Loeb, 315 Mass. 191, 196 (1943): “On the law side of the court a judge cannot be required to make any express findings of fact.” See also Maglio v. Lane, 268 Mass. 135, 137 (1929). Even though the trial judge is not required to itemize his findings of fact, he may do so voluntarily. In actions tried without a jury, although the judge was required to pass on rulings of law requested by the parties. Ashapa v. Reed, 280 Mass. 514 (1932), he need not, unless he wished, make findings of fact. “Findings of fact not infrequently are made in more or less detail by a trial judge and the reasons stated for the information of parties and counsel, but that is a practice of convenience.” Id. at 516.

In Massachusetts equity practice, on the other hand, the trial judge was obligated, if the losing party requested, to “report the material facts” upon which his decision was based. If no request was made, a report was discretionary. See also Matter of Loeb, 315 Mass. 191, 196 note (1943).

Under Rule 52(a), the trial court’s findings of fact cannot be set aside unless the appellate court determines them to be “clearly erroneous”. “A finding is ‘clearly erroneous’ when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948).

The rule emphasizes the “opportunity of the trial court to judge the credibility of the witnesses.” This is similar to prior Massachusetts equity practice.

In equity cases (where the judge made findings of fact), the full Supreme Judicial Court had to make its own evaluation of the testimony, giving due weight to the trial judge’s findings. Those findings would not be reversed unless “plainly wrong.” McMahon v. Monarch Life Ins. Co., 345 Mass. 261, 262, 263 (1962); Sulmonetti v. Hayes, 347 Mass. 390, 391 (1964). Like Rule 52(a), Massachusetts decisions emphasize that the trial judge is “in the best position to determine the weight and credibility of the evidence,” Oberg v. Burke, 345 Mass. 596, 598 (1963); Murphy v. Hanlon, 322 Mass. 683, 685 (1948).

In Massachusetts, the findings in a confirmed master’s report were binding upon the court unless they were “mutually inconsistent or plainly wrong.” Rose v. Homsey, 347 Mass. 259, 260 (1964); Lukas v. Leventhal, 344 Mass. 762 (1962).

Under Rule 52(b) the court, upon motion of a party within 10 days after entry of judgment, “may amend its findings or make additional findings and may amend the judgment accordingly.” Under former practice, the trial judge had discretion to allow a rehearing and to amend his findings prior to the entry of the final decree. See, e.g., Stern v. Stern, 330 Mass. 312, 316 (1953); Souza v. Souza, 325 Mass. 761, 762 (1950). However, “after the entry of a final decree in equity, as after the entry of a final judgment in a suit at law, the case is finally disposed of by the court, subject to such rights of appeal, if any, as the statute gives, and the court has no further power to deal with the case except upon a bill of review.” White v. Gove, 183 Mass. 333, 340 (1903).

The change engendered by Rule 52(b) stems largely from the difference between “judgment” under the Rules and the Massachusetts concept of “judgment”. See Reporters’ Notes to Rule 58.