46.1. Remittitur After Appeal Perfected
If the trial court suggests a remittitur but the case is appealed before the remittitur is filed, the party who would make the remittitur may do so in the court of appeals in the same manner as in the trial court. The court of appeals must then render the judgment that the trial court should have rendered if the remittitur had been made in the trial court.
46.2. Appeal on Remittitur
If a party makes the remittitur at the trial judge’s suggestion and the party benefitting from the remittitur appeals, the remitting party is not barred from contending in the court of appeals that all or part of the remittitur should not have been required, but the remitting party must perfect an appeal to raise that point. If the court of appeals sustains the remitting party’s contention that remittitur should not have been required, the court must render the judgment that the trial court should have rendered.
46.3. Suggestion of Remittitur by Court of Appeals
The court of appeals may suggest a remittitur. If the remittitur is timely filed, the court must reform and affirm the trial court’s judgment in accordance with the remittitur. If the remittitur is not timely filed, the court must reverse the trial court’s judgment.
46.4. Refusal to Remit Must Not Be Mentioned in Later Trial
If the court of appeals suggests a remittitur but no remittitur is filed, evidence of the court’s determination regarding remittitur is inadmissible in a later trial of the case.
46.5. Voluntary Remittitur
If a court of appeals reverses the trial court’s judgment because of a legal error that affects only part of the damages awarded by the judgment, the affected party may – within 15 days after the court of appeals’ judgment – voluntarily remit the amount that the affected party believes will cure the reversible error. A party may include in a motion for rehearing – without waiving any complaint that the court of appeals erred – a conditional request that the court accept the remittitur and affirm the trial court’s judgment as reduced. If the court of appeals determines that the voluntary remittitur is not sufficient to cure the reversible error, but that remittitur is appropriate, the court must suggest a remittitur in accordance with Rule 46.3. If the remittitur is timely filed and the court of appeals determines that the voluntary remittitur cures the reversible error, then the court must accept the remittitur and reform and affirm the trial court judgment in accordance with the remittitur.
Notes and Comments
Comment to 1997 change: This is former Rule 85. The rule is revised without substantive change.
Comment to 2002 change: Subdivision 46.5 is amended to clarify the procedure for offering a voluntary remittitur. The offer may be made in a motion for rehearing without waiving any complaint that the court of appeals erred, thereby extending the deadlines for further appeal.