One Trial Judge Overruling Another
In a marital dissolution action, Judge #1 ruled an agreement was not enforceable. Judge #2 reconsidered the matter over three years later, on the court’s own motion, and ruled the agreement was enforceable.
On appeal, the wife asserted Judge #2 erred in granting reconsideration of Judge #1’s ruling.
In reversing, the Court of Appeal found Judge #2’s actions were not covered by any recognized exceptions to the general rule that one trial judge cannot overrule another trial judge. Rather, the appeals court found the record reflected that Judge #2 disagreed with the ruling of Judge #1 and overruled Judge #1. (Cal. App. Sixth Dist., July 24, 2015) 238 Cal.App.4th 1242 [190 Cal.Rptr.3d 436].) source
Click Here for more New Judge New Rulings collected authorities holding that, generally, one trial judge may not reconsider or overrule an interlocutory ruling of another trial judge.
Click Here for more New Trial Judge Vexatious Litigant – Back-to-the-Well
Click Here for Patterns and Consequences of Judicial Reversals: Theoretical Considerations and Data from a District Court
Click Here for more One Trial Judge Overruling Another
One Trial Judge Overruling Another
Michael Crowell – UNC School of Government
- General rule
- The general rule is that one trial judge may not modify or overrule an order entered by another trial judge on a matter of law. If the order is about a matter of discretion rather than a matter of law, the second judge may modify it, but only if there has been a substantial change in circumstances.
- There are exceptions to the general rule. In a few circumstances a statute or rule specifically authorizes modification of an earlier order. Also, some matters of trial procedure are left to the discretion of the trial judge regardless of any earlier rulings by other judges. Those exceptions are discussed below.
- Typical statements of the rule:
- “’The power of one judge of the superior court is equal to and coordinate with another.’ Michigan Nat’l Bank v. Hanner, 268 N.C. 668, 670, 151 S.E.2d 579, 580 (1960). Accordingly, it is well established in our jurisprudence ‘that no appeal lies from one Superior Court judge to another; that one Superior Court judge may not correct another’s errors of law; and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action.’ Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972).” State v. Woodridge, 357 N.C. 544, 549 (2003).
- “One superior court judge may only modify, overrule or change the order of another superior court judge where the original order was (1) interlocutory, (2) discretionary, and (3) there has been a substantial change of circumstances since the entry of the prior order. Stone v. Martin, 69 N.C. App. 650, 652, 318 S.E.2d 108, 110 (1984). A substantial change in circumstances exists if since the entry of the prior order, there has been an ‘intervention of new facts which bear upon the propriety’ of the previous order. See Calloway v. Motor Co., 281 N.C 496, 505, 189 S.E.2d 484, 490 (1972).” First Fin. Ins. Co. v. Commercial Coverage Inc., 154 N.C. App. 504, 507 (2002).
- The rule is relevant only to interlocutory orders
- Because final orders are subject to appeal and the trial judge loses jurisdiction once the matter is appealed, the rule about one trial judge overruling another generally is relevant only when the order is interlocutory and still subject to trial court jurisdiction.
- An interlocutory order is an order that does not finally resolve all issues in controversy. There are still matters to be decided by the trial court.
- Generally, appeal is the means to correct or overrule a final order, and once a final order is appealed the trial court loses jurisdiction to act further in the case. Bowen v. Hodge Motor Co., 292 N.C. 633 (1977).
- If an interlocutory order affects a substantial right, it may be appealed immediately. G.S. 1-277, 7A-27(d); Lovelace v. City of Shelby, 133 N.C. App. 408 (1999), rev’d on other grounds, 351 N.C. 458 (2000). Upon appeal, the trial court loses jurisdiction to act further, just as with a final order.
- There are instances in which a trial court may modify a final order.
- In a civil case, the court may relieve a party from a final judgment or order for the reasons stated in Rule 60(b) of the Rules of Civil Procedur The motion under Rule 60(b) may be heard by a different judge than the one who entered the judgment or order. Duplin County DSS ex rel. Pulley v. Frazier, N.C. App. , 751 S.E.2d 621, 623 (2013).
- In a civil case tried without a jury a judgment may be later modified by the trial court through a motion under Rule 59(a) of the Rules of Civil Procedure for a new trial. However, motion under Rule 59 must be heard by the same judge who entered the original judgment. Sisk v. Sisk, N.C. App. _, 729 S.E.2d 68, 70 (2012); Gemini Drilling & Found., LLC v. Nat’l Fire Ins. Co., 192 N.C. App. 376 (2008).
- In a criminal case, G.S. 15A-1420 provides for a motion for appropriate relief.
- The rule is applicable to district court and the Court of Appeals as well as superior court.
- A district court judge may not overrule another district judge. In re Royster, 361 N.C. 560, 563 (2007); Town of Sylva v. Gibson, 51 N.C. App. 545 (1981). Nor may a district court judge modify an order of the Court of Appeals. Ross v. Ross (now Osborne), 194 N.C. App. 365, 369 (2008).
- One panel of the Court of Appeals may not overrule another panel. North Carolina Nat’l Bank v. Virginia Carolina Builders, 307 N.C. 563 (1983).
- If the legal issue is the same, it does not matter that the motion heard by the second judge is different than the one decided by the first judge.
- The second judge’s decision on summary judgment was void because it was based on the same legal issue as the first judge’s decision denying a motion to dismiss. Adkins v. Stanly County Board of Education, 203 N.C. App. 642, 647-48 (2010). Although the two motions differed, the linchpin legal issue for each was whether the dismissed public employee had been speaking on a matter of public concern so as to raise First Amendment protections.
- A second judge’s order of summary judgment in a medical malpractice case was void because, even though the judge said he was not overruling the first judge, the legal issue being determined — whether negligence might be established by res ipsa loquitur and thus avoid the need to have the pleadings reviewed by an expert — was the same as decided by the first judge in denying a motion to dismiss. Robinson v. Duke University Health Systems, Inc., N.C. App. _, 747 S.E.2d 321, 327-28 (2013).
- Examples of matters of law on which a second trial judge could not overrule or modify an order of a previous judge:
- Motion to suppress evidence (although the prosecutor presented a different legal theory for admission of the evidence in the second hearing the legal issue was the same). State v. Woolridge, 357 N.C. 544 (2003).
- Decision on whether a statute authorizes an award of attorney’s fees. Able Outdoor Inc. v. Harrelson, 341 N.C. 167 (1995).
- Exclusion of time from calculation for Speedy Trial Act. State v. Sams, 317 N.C. 230 (1986).
- Dismissal of case for failure to complete service. Bumgardner v. Bumgardner, 113 N.C. App. 314 (1994).
- Examples of matters of law in which the legal issue presented to the second judge was different than the issue decided by the first judge, and thus the second judge was free to act:
- A motion for permissive intervention was proper following the first judge’s decision to dismiss the parties from the lawsuit for lack of standing. Bruggeman v. Meditrust Co., LLC, 165 N.C. App. 790 (2004).
- A motion for summary judgment on the issue of punitive damages in a medical malpractice case was proper following the first judge’s denial of summary judgment on negligence, because the damages issues had not been presented in the first motion. Fox v. Green, 161 N.C. App. 460 (2003).
- Examples of matters of discretion for which a second trial judge could overrule or modify the order of a previous judge upon a showing of a substantial change in circumstances:
- Motion for special jury venire. State v. Duvall, 304 N.C. 557 (1981) (but the prosecutor failed to show a substantial change in circumstances from the time of the earlier ruling).
- Motion to amend answer. Madry v. Madry, 106 N.C. App. 34 (1992) (summary judgment should not have been allowed when the motion was based on the same facts as the previously denied motion to amend and there was no change in circumstances shown).
- Class certification. Dublin v. UCR, Inc., 115 N.C. App 209 (1994).
- Sealing of documents in a domestic case. France v. France, N.C. App., 738 S.E.2d 180, 186 (2012) (change in circumstance justifying second judge’s unsealing of documents was appellate ruling that courtroom had to be opened for proceedings in case).
- Second motions for summary judgment
- A decision on summary judgment is a decision on a matter of law and may not be overruled by a second trial judge on the same legal issue. Taylorsville Fed. Sav. & Loan Ass’n v. Keen, 110 N.C. App. 784 (1993).
- A second motion for summary judgment on punitive damages could not be considered because the same legal issue was presented in the first motion. Carr v. Great Lakes Carbon Corp., 49 N.C. App. 631 (1980).
- A motion for summary judgment underS. 99B-3, the statute exempting manufacturers from liability when the product was improperly modified or used, could not be considered by a second judge after the first judge had denied the manufacturer’ summary judgment based on contributory negligence. The manufacturer had asserted that the child victim was contributorily negligent for engaging in “horseplay” in use of the gate and fence. The contributory negligence legal argument thus was essentially the same as the legal argument in the second motion. Hastings ex rel. Pratt v. Seegars Fence Co., 128 N.C. App. 166 (1997).
- An additional forecast of evidence does not entitle a party to a second motion for summary judgment. Metts v. Piver, 102 N.C. App. 98 (1991). The presentation of additional affidavits and depositions transcripts does not allow consideration of a second motion for summary judgment on the same legal issue. Great Lakes Carbon Corp., 49 N.C. App. 631 (1980).
- The rule is the same even if the second motion for summary judgment is made by a different party. If the legal issue in the second motion for summary judgment is essentially the same as in the first motion, the second judge may not consider the motion, regardless of who made each motion. Cail v. Cerwin, 185 N.C. App. 176 (2007).
- A second motion for summary judgment, however, may involve a different legal issue and if it does, it may be considered by a second judge.
- Denial of summary judgment on the issue of absence of negligence in a medical malpractice case could not be reconsidered in a second motion for summary judgment, but the issue of punitive damages could be considered because it was not presented in the first motion. Fox v. Green, 161 N.C. App. 460 (2003).
- A decision on summary judgment is a decision on a matter of law and may not be overruled by a second trial judge on the same legal issue. Taylorsville Fed. Sav. & Loan Ass’n v. Keen, 110 N.C. App. 784 (1993).
- Examples of statutes and rules authorizing a second judge to modify a previous order or action
- Rule 55(d) of the Rules of Civil Procedure specifically authorizes the setting aside of an entry of default “for good cause shown.” See Stone v. Martin, 69 N.C. App. 650, 653 (1984).
- As mentioned above, Rule 60(b) of the Rules of Civil Procedure authorizes a grant of relief from a judgment for the reasons stated in the rule.
- G.S. 84-4.2 authorizes the summary revocation of a pro hac vice admission of an out-of-state lawyer on the court’s own motion and in its discretion. Thus a second judge could revoke an admission allowed by an earlier judge. Smith v. Beaufort County Hosp. Ass’n, Inc., 141 N.C. App. 203 (2000).
- As mentioned above, G.S. 15A-1420 provides for motions for appropriate relief in criminal cases.
- Some procedural decisions are within the discretion of the trial judge regardless of previous orders by another judge
- The judge presiding at trial could decide to deny individual voir dire of prospective jurors in a capital case even though another judge had earlier stated in a pretrial order that individual voir dire would be allowed. The rule of one judge overruling another does not apply to interlocutory orders which affect the procedure and conduct of trial; those remain subject to the discretion of the trial judge. State v. Stokes, 308 N.C. 634 (1983).
- It is within the discretion of the judge presiding at trial whether to consolidate for trial actions that involve common questions of law and fact. Oxendine v. Catawba County Dep’t of Soc. Servs., 303 N.C. 699 (1981).
- A second judge is not bound by an earlier judge’s order that is void
- If the first judge’s order is void ab initio because the first judge did not have jurisdiction to enter the order, then the order is a nullity and may be ignored by a second judge. State v. Sams, 317 N.C. 230 (1986).
- If the first judge had jurisdiction to enter an order, even though it is incorrect as a matter of law, the order is merely voidable and remains in effect and must be honored by the second judge until voided by direct challenge to its validity. Able Outdoor Inc. v. Harrelson, 341 N.C. 167 (1995); State v. Sams, 317 N.C. 230 (1986).
Rule 103. Rulings on Evidence
(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
(1) if the ruling admits evidence, a party, on the record:
(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or
(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
(Pub. L. 93–595, §1, Jan. 2, 1975, 88 Stat. 1930; Apr. 17, 2000, eff. Dec. 1, 2000; Apr. 26, 2011, eff. Dec. 1, 2011.)
Notes of Advisory Committee on Proposed Rules
Subdivision (a) states the law as generally accepted today. Rulings on evidence cannot be assigned as error unless (1) a substantial right is affected, and (2) the nature of the error was called to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take proper corrective measures. The objection and the offer of proof are the techniques for accomplishing these objectives. For similar provisions see Uniform Rules 4 and 5; California Evidence Code §§353 and 354; Kansas Code of Civil Procedure §§60–404 and 60–405. The rule does not purport to change the law with respect to harmless error. See 28 U.S.C. §2111, F.R.Civ.P. 61, F.R.Crim.P. 52, and decisions construing them. The status of constitutional error as harmless or not is treated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), reh. denied id. 987, 87 S.Ct. 1283, 18 L.Ed.2d 241.
Subdivision (b). The first sentence is the third sentence of Rule 43(c) of the Federal Rules of Civil Procedure virtually verbatim. Its purpose is to reproduce for an appellate court, insofar as possible, a true reflection of what occurred in the trial court. The second sentence is in part derived from the final sentence of Rule 43(c). It is designed to resolve doubts as to what testimony the witness would have in fact given, and, in nonjury cases, to provide the appellate court with material for a possible final disposition of the case in the event of reversal of a ruling which excluded evidence. See 5 Moore’s Federal Practice §43.11 (2d ed. 1968). Application is made discretionary in view of the practical impossibility of formulating a satisfactory rule in mandatory terms.
Subdivision (c). This subdivision proceeds on the supposition that a ruling which excludes evidence in a jury case is likely to be a pointless procedure if the excluded evidence nevertheless comes to the attention of the jury. Bruton v. United States, 389 U.S. 818, 88 S.Ct. 126, L.Ed.2d 70 (1968). Rule 43(c) of the Federal Rules of Civil Procedure provides: “The court may require the offer to be made out of the hearing of the jury.” In re McConnell, 370 U.S. 230, 82 S.Ct. 1288, 8 L.Ed.2d 434 (1962), left some doubt whether questions on which an offer is based must first be asked in the presence of the jury. The subdivision answers in the negative. The judge can foreclose a particular line of testimony and counsel can protect his record without a series of questions before the jury, designed at best to waste time and at worst “to waft into the jury box” the very matter sought to be excluded.
Subdivision (d). This wording of the plain error principle is from Rule 52(b) of the Federal Rules of Criminal Procedure. While judicial unwillingness to be constructed by mechanical breakdowns of the adversary system has been more pronounced in criminal cases, there is no scarcity of decisions to the same effect in civil cases. In general, see Campbell, Extent to Which Courts of Review Will Consider Questions Not Properly Raised and Preserved, 7 Wis.L.Rev. 91, 160 (1932); Vestal, Sua Sponte Consideration in Appellate Review, 27 Fordham L.Rev. 477 (1958–59); 64 Harv.L.Rev. 652 (1951). In the nature of things the application of the plain error rule will be more likely with respect to the admission of evidence than to exclusion, since failure to comply with normal requirements of offers of proof is likely to produce a record which simply does not disclose the error.
Committee Notes on Rules—2000 Amendment
The amendment applies to all rulings on evidence whether they occur at or before trial, including so-called “ in limine ” rulings. One of the most difficult questions arising from in limine and other evidentiary rulings is whether a losing party must renew an objection or offer of proof when the evidence is or would be offered at trial, in order to preserve a claim of error on appeal. Courts have taken differing approaches to this question. Some courts have held that a renewal at the time the evidence is to be offered at trial is always required. See, e.g., Collins v. Wayne Corp., 621 F.2d 777 (5th Cir. 1980). Some courts have taken a more flexible approach, holding that renewal is not required if the issue decided is one that (1) was fairly presented to the trial court for an initial ruling, (2) may be decided as a final matter before the evidence is actually offered, and (3) was ruled on definitively by the trial judge. See, e.g., Rosenfeld v. Basquiat, 78 F.3d 84 (2d Cir. 1996) (admissibility of former testimony under the Dead Man’s Statute; renewal not required). Other courts have distinguished between objections to evidence, which must be renewed when evidence is offered, and offers of proof, which need not be renewed after a definitive determination is made that the evidence is inadmissible. See, e.g., Fusco v. General Motors Corp., 11 F.3d 259 (1st Cir. 1993). Another court, aware of this Committee’s proposed amendment, has adopted its approach. Wilson v. Williams, 182 F.3d 562 (7th Cir. 1999) (en banc). Differing views on this question create uncertainty for litigants and unnecessary work for the appellate courts.
The amendment provides that a claim of error with respect to a definitive ruling is preserved for review when the party has otherwise satisfied the objection or offer of proof requirements of Rule 103(a). When the ruling is definitive, a renewed objection or offer of proof at the time the evidence is to be offered is more a formalism than a necessity. See Fed.R.Civ.P. 46 (formal exceptions unnecessary); Fed.R.Cr.P.51 (same); United States v. Mejia-Alarcon, 995 F.2d 982, 986 (10th Cir. 1993) (“Requiring a party to review an objection when the district court has issued a definitive ruling on a matter that can be fairly decided before trial would be in the nature of a formal exception and therefore unnecessary.”). On the other hand, when the trial court appears to have reserved its ruling or to have indicated that the ruling is provisional, it makes sense to require the party to bring the issue to the court’s attention subsequently. See, e.g., United States v. Vest, 116 F.3d 1179, 1188 (7th Cir. 1997) (where the trial court ruled in limine that testimony from defense witnesses could not be admitted, but allowed the defendant to seek leave at trial to call the witnesses should their testimony turn out to be relevant, the defendant’s failure to seek such leave at trial meant that it was “too late to reopen the issue now on appeal”); United States v. Valenti, 60 F.3d 941 (2d Cir. 1995) (failure to proffer evidence at trial waives any claim of error where the trial judge had stated that he would reserve judgment on the in limine motion until he had heard the trial evidence).
The amendment imposes the obligation on counsel to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point. See, e.g., Walden v. Georgia-Pacific Corp., 126 F.3d 506, 520 (3d Cir. 1997) (although “the district court told plaintiffs’ counsel not to reargue every ruling, it did not countermand its clear opening statement that all of its rulings were tentative, and counsel never requested clarification, as he might have done.”).
Even where the court’s ruling is definitive, nothing in the amendment prohibits the court from revisiting its decision when the evidence is to be offered. If the court changes its initial ruling, or if the opposing party violates the terms of the initial ruling, objection must be made when the evidence is offered to preserve the claim of error for appeal. The error, if any, in such a situation occurs only when the evidence is offered and admitted. United States Aviation Underwriters, Inc. v. Olympia Wings, Inc., 896 F.2d 949, 956 (5th Cir. 1990) (“objection is required to preserve error when an opponent, or the court itself, violates a motion in limine that was granted”); United States v. Roenigk, 810 F.2d 809 (8th Cir. 1987) (claim of error was not preserved where the defendant failed to object at trial to secure the benefit of a favorable advance ruling).
A definitive advance ruling is reviewed in light of the facts and circumstances before the trial court at the time of the ruling. If the relevant facts and circumstances change materially after the advance ruling has been made, those facts and circumstances cannot be relied upon on appeal unless they have been brought to the attention of the trial court by way of a renewed, and timely, objection, offer of proof, or motion to strike. See Old Chief v. United States, 519 U.S. 172, 182, n.6 (1997) (“It is important that a reviewing court evaluate the trial court’s decision from its perspective when it had to rule and not indulge in review by hindsight.”). Similarly, if the court decides in an advance ruling that proffered evidence is admissible subject to the eventual introduction by the proponent of a foundation for the evidence, and that foundation is never provided, the opponent cannot claim error based on the failure to establish the foundation unless the opponent calls that failure to the court’s attention by a timely motion to strike or other suitable motion. See Huddleston v. United States, 485 U.S. 681, 690, n.7 (1988) (“It is, of course, not the responsibility of the judge sua sponte to ensure that the foundation evidence is offered; the objector must move to strike the evidence if at the close of the trial the offeror has failed to satisfy the condition.”).
Nothing in the amendment is intended to affect the provisions of Fed.R.Civ.P. 72 (a) or 28 U.S.C. §636(b)(1) pertaining to nondispositive pretrial rulings by magistrate judges in proceedings that are not before a magistrate judge by consent of the parties. Fed.R.Civ.P. 72 (a) provides that a party who fails to file a written objection to a magistrate judge’s nondispositive order within ten days of receiving a copy “may not thereafter assign as error a defect” in the order. 28 U.S.C. §636(b)(1) provides that any party “may serve and file written objections to such proposed findings and recommendations as provided by rules of court” within ten days of receiving a copy of the order. Several courts have held that a party must comply with this statutory provision in order to preserve a claim of error. See, e.g., Wells v. Shriners Hospital, 109 F.3d 198, 200 (4th Cir. 1997) (“[i]n this circuit, as in others, a party ‘may’ file objections within ten days or he may not, as he chooses, but he ‘shall’ do so if he wishes further consideration.”). When Fed.R.Civ.P. 72 (a) or 28 U.S.C. §636(b)(1) is operative, its requirement must be satisfied in order for a party to preserve a claim of error on appeal, even where Evidence Rule 103(a) would not require a subsequent objection or offer of proof.
Nothing in the amendment is intended to affect the rule set forth in Luce v. United States, 469 U.S. 38 (1984), and its progeny. The amendment provides that an objection or offer of proof need not be renewed to preserve a claim of error with respect to a definitive pretrial ruling. Luce answers affirmatively a separate question: whether a criminal defendant must testify at trial in order to preserve a claim of error predicated upon a trial court’s decision to admit the defendant’s prior convictions for impeachment. The Luce principle has been extended by many lower courts to other situations. See United States v. DiMatteo, 759 F.2d 831 (11th Cir. 1985) (applying Luce where the defendant’s witness would be impeached with evidence offered under Rule 608). See also United States v. Goldman, 41 F.3d 785, 788 (1st Cir. 1994) (“Although Luce involved impeachment by conviction under Rule 609, the reasons given by the Supreme Court for requiring the defendant to testify apply with full force to the kind of Rule 403 and 404 objections that are advanced by Goldman in this case.”); Palmieri v. DeFaria, 88 F.3d 136 (2d Cir. 1996) (where the plaintiff decided to take an adverse judgment rather than challenge an advance ruling by putting on evidence at trial, the in limine ruling would not be reviewed on appeal); United States v. Ortiz, 857 F.2d 900 (2d Cir. 1988) (where uncharged misconduct is ruled admissible if the defendant pursues a certain defense, the defendant must actually pursue that defense at trial in order to preserve a claim of error on appeal); United States v. Bond, 87 F.3d 695 (5th Cir. 1996) (where the trial court rules in limine that the defendant would waive his fifth amendment privilege were he to testify, the defendant must take the stand and testify in order to challenge that ruling on appeal).
The amendment does not purport to answer whether a party who objects to evidence that the court finds admissible in a definitive ruling, and who then offers the evidence to “remove the sting” of its anticipated prejudicial effect, thereby waives the right to appeal the trial court’s ruling. See, e.g., United States v. Fisher, 106 F.3d 622 (5th Cir. 1997) (where the trial judge ruled in limine that the government could use a prior conviction to impeach the defendant if he testified, the defendant did not waive his right to appeal by introducing the conviction on direct examination); Judd v. Rodman, 105 F.3d 1339 (11th Cir. 1997) (an objection made in limine is sufficient to preserve a claim of error when the movant, as a matter of trial strategy, presents the objectionable evidence herself on direct examination to minimize its prejudicial effect); Gill v. Thomas, 83 F.3d 537, 540 (1st Cir. 1996) (“by offering the misdemeanor evidence himself, Gill waived his opportunity to object and thus did not preserve the issue for appeal”); United States v. Williams, 939 F.2d 721 (9th Cir. 1991) (objection to impeachment evidence was waived where the defendant was impeached on direct examination).
GAP Report—Proposed Amendment to Rule 103(a). The Committee made the following changes to the published draft of the proposed amendment to Evidence Rule 103(a):
1. A minor stylistic change was made in the text, in accordance with the suggestion of the Style Subcommittee of the Standing Committee on Rules of Practice and Procedure.
2. The second sentence of the amended portion of the published draft was deleted, and the Committee Note was amended to reflect the fact that nothing in the amendment is intended to affect the rule of Luce v. United States.
3. The Committee Note was updated to include cases decided after the proposed amendment was issued for public comment.
4. The Committee Note was amended to include a reference to a Civil Rule and a statute requiring objections to certain Magistrate Judge rulings to be made to the District Court.
5. The Committee Note was revised to clarify that an advance ruling does not encompass subsequent developments at trial that might be the subject of an appeal.
Committee Notes on Rules—2011 Amendment
The language of Rule 103 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.
Writs and appeals are sometimes not the only routes (or even the preferred routes) to relief from an adverse order or judgment. Motions for reconsideration, post-trial motions for new trial or to vacate the judgment, and motions to set aside a judgment all have the possibility of getting you a “reversal” of sorts without ever leaving the superior court.
I’ve written before about how a superior court judge may change a prior interim ruling on his own motion, even when the decision to do so is triggered by a faulty motion for reconsideration. The chief limitation on this practice is that, in most cases, one judge on a superior court cannot reverse the ruling of another judge on the same superior court, at least so long as the original judge is still available, i.e., still on that court. In Marriage of Oliverez, case no. H040955 (6th Dist., July 27, 2015), the court confirms that this rule applies even when the case has been transferred to a new judge for trial.
The original judge in Oliverez had denied husband’s motion pursuant to Code of Civil Procedure section 664.6 to enforce a settlement. The case was then transferred (for reasons the court was unable to discern from the record) to another judge, before whom it was tried. In his tentative ruling, the second judge stated his intent to reconsider the first judge’s ruling on the settlement enforcement motion and later gave formal notice of its intent and afforded the parties an opportunity to brief the issue. The second judge then issued a statement of decision and final judgment, in which he vacated the prior order denying the motion and entered a judgment of dissolution that incorporated the terms of the settlement. Wife appealed.
The Court of Appeal covers the “narrow” exceptions to the general rule that one trial court judge may not reconsider and overrule an interim ruling of another trial judge:
“[W]here the judge who made the initial ruling is unavailable to reconsider the motion, a different judge may entertain the reconsideration motion.” Another exception is when the facts have changed or when the judge has considered further evidence and law. Additionally, a second judge may reverse a prior ruling of another judge if the record shows that it was based on inadvertence, mistake, or fraud. Mere disagreement, as here, with the prior trial judge’s ruling, however, is not enough to overturn that ruling.
Since the first trial judge in Oliveras was still on the bench, and it was apparent from the second judge’s ruling that he merely disagreed with the first judge on the original evidence and law, the judgment vacating the prior ruling did not fall within the exceptions.
Perhaps the husband saw the writing on the wall. He did not file a respondent’s brief in the Court of Appeal.
So, do you want your superior court judge to reconsider an earlier ruling based on the same facts and law? Knock yourself out with the same judge, but don’t try to turn another superior court judge into a one-judge appellate court. source
One Superior Court Judge Overruling Another?
You are all familiar with the old adage that “one Superior Court Judge cannot overrule another Superior Court Judge.” But apparently there is at least a little bend in that rule, as illustrated by Judge Bledsoe’s opinion this past Thursday, in Taidoc Technology Corp. v. OK Biotech Co., 2014 NCBC 48 [an enhanced version of this opinion is available to lexis.com subscribers].
The Taidoc case is one that Judge Bledsoe inherited after Judge Murphy’s retirement.
Judge Murphy had entered a discovery order in June 2014 granting in part Taidoc’s Motion to Compel. The Order allowed Taidoc to take the depositions of certain non-parties, but imposed restrictions which Taidoc did not appreciate.
The proposed deponents had been involved in a related case in which Taidoc had been the Defendant, and they also had been deposed in that case and had testified at trial. Judge Murphy’s Order allowing the depositions limited the proposed deposition testimony to “matters not addressed by prior depositions of those witnesses.” The Order also provided that Taidoc would bear the fees and costs associated with any of the depositions, including the attorneys’ fees of the deponents.
Taidoc said that Judge Murphy’s restrictions should be overruled and stricken, or at least clarified. Taidoc suggested in its Motion regarding the Order that counsel for the witnesses was taking the position that the Order cut off Taidoc’s right to ask about any events occurring after a certain date.
Criteria For Overruling Another Judge’s Decision
Judge Bledsoe stated the limited conditions under which he could change Judge Murphy’s Order. He said that:
our appellate courts have held that “[o]ne superior court judge may only modify, overrule, or change the order of another superior court judge where the original order was (1) interlocutory, (2) discretionary, and (3) there has been a substantial change of circumstances since the entry of the prior order.”
Op. ¶11 (quoting Crook v. KRC Mgmt. Corp., 206 N.C. App. 179, 189, 697 S.E.2d 449, 456 (2010) [enhanced version].
Although the Order met the first two requirements for being modified — being interlocutory and discretionary — Judge Bledsoe found that there was no basis to find that there had been a “substantial change of circumstances” in the four months since Judge Murphy had entered his Order.
But the lack of changed circumstances didn’t stop Judge Bledsoe from interpreting the Order, which he found to be somewhat ambiguous and capable of different interpretations. He said that the words used by Judge Murphy in his Order — that the depositions be limited to “matters not addressed by prior depositions of the same witnesses” — were meant to avoid “unnecessarily duplicative examinations” of those witnesses and to prevent Taidoc from posing the same questions in the hope of obtaining different answers. Op. ¶16.
He said that Taidoc could:
ask any questions and engage in any specific line of inquiry that was not pursued by Plaintiff in the prior depositions of the Non-Parties concerning any document, thing, person, event or fact, provided such inquiry is consistent with the requirements of Rule 26 and any other applicable rules of the North Carolina Rules of Civil Procedure.
Judge Bledsoe also weighed in on the obligation that the Order had placed on Taidoc to pay the fees and costs associated with the depositions of the previously deposed witnesses, including the attorneys’ fees of the deponents. He ruled that any fees and costs presented for payment had to be “reasonable under the circumstances” and that Taidoc should be allowed to contest the reasonableness of the fees and costs before having to pay them.” Op. ¶17.
Surely that’s what Judge Murphy intended in the first instance.
Judge Bledsoe Was Unwilling To Award Attorneys’ Fees Which Judge Murphy Possibly Should Have Awarded
Judge Bledsoe refused to alter Judge Murphy’s refusal to award attorneys’ fees to Taidoc’s lawyers with regard to the Motion that resulted in the Order at issue. Although the Plaintiff had prevailed on the Motion to Compel leading to Judge Murphy’s Order, and Rule 37(a)(4) says that fees shall be awarded to the prevailing party on a Motion to Compel, Judge Murphy had never made findings that the Defendant’s opposition was “substantially justified” or that a fee award would be “unjust under the circumstances,” which would have excused an award of fees,
Even if Judge Murphy not awarding fees was mistaken, which Judge Bledsoe did not suggest, he said that “one Superior Court Judge may not correct another’s errors of law.” Op. ¶ 26 (quoting Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E.2d 484, 488 (1972) [enhanced version]).
So if you are a lawyer handling a case before Judge Bledsoe in which Judge Murphy previously entered an Order, your chances of getting a previous ruling overruled are pretty slim. But getting an interpretation of an earlier ruling more favorable to your client seems possible.
There’s more interesting stuff in Judge Bledsoe’s ruling, especially on when a party can withdraw its responses to Requests for Admission. Or more precisely, when can a party withdraw admissions made as a result of its failure to respond timely to the Requests. That’s in Paragraphs 29 through 35 of the Opinion. source
When the Judge Is Wrong
“There is no such thing as the judge being wrong.”
This proclamation was uttered to me by—you guessed it—a judge. It’s a judge’s job to be right, and ultimately they wear the robes, not you. However, every litigator will eventually encounter a jurist who is undeniably flat-out wrong on an issue. Whether the error is a ruling on an objection or a misapplication of the law, this scenario can leave both judge and litigator in a pickle. This practice point seeks to clarify your options when this inevitably happens.
Before you proceed, define the nature of the error and its potential impact. Ask yourself these key questions:
Is the error material?
First, determine whether the error is one that can be easily remedied. Outside of open court, the ruling with which you take issue may be addressed with a motion to reconsider. If you question a ruling against you within court, you may ask the court’s permission to brief any issue before a ruling is handed down. It’s your job to represent your client accurately; don’t be shy about due diligence on a sticky point.
How will the error affect the case’s outcome?
If a ruling is in doubt, it’s best to err on the side of caution: assume every ruling will have an impact on every aspect of the case, from discovery boundaries to use of expert witnesses or the manner in which evidence will be presented at trial. Don’t spend too long contemplating this one.
What mechanism will allow me to remedy this error without sacrificing my reputation and my client’s interests?
If your objection results in a questionable ruling by the court, make a record of it with an offer of proof to preserve the record for appeal and move forward.
Unfortunately, there are times when a judge’s misunderstanding or misapplication of the law is material but the issue cannot be remedied via a later appeal. In these circumstances, the rules provide for an interlocutory appeal. Interlocutory appeal is a tool that circumvents waiting for the final decision of the district court, instead allowing direct appeal to the appellate court while the action is pending.
This practice point illustrates the operation of Federal Rules of Appellate Procedure 5.0, below.
Rule 5. Appeal by Permission
(a) Petition for Permission to Appeal.
(1) To request permission to appeal when an appeal is within the court of appeals’ discretion, a party must file a petition for permission to appeal. The petition must be filed with the circuit clerk with proof of service on all other parties to the district-court action.
(2) The petition must be filed within the time specified by the statute or rule authorizing the appeal or, if no such time is specified, within the time provided by Rule 4(a) for filing a notice of appeal.
(3) If a party cannot petition for appeal unless the district court first enters an order granting permission to do so or stating that the necessary conditions are met, the district court may amend its order, either on its own or in response to a party’s motion, to include the required permission or statement. In that event, the time to petition runs from entry of the amended order.
(b) Contents of the Petition; Answer or Cross-Petition; Oral Argument.
(1) The petition must include the following:
(A) the facts necessary to understand the question presented;
(B) the question itself;
(C) the relief sought;
(D) the reasons why the appeal should be allowed and is authorized by a statute or rule; and
(E) an attached copy of:
(i) the order, decree, or judgment complained of and any related opinion or memorandum, and
(ii) any order stating the district court’s permission to appeal or finding that the necessary conditions are met.
(2) A party may file an answer in opposition or a cross-petition within 10 days after the petition is served.
(3) The petition and answer will be submitted without oral argument unless the court of appeals orders otherwise.
(c) Form of Papers; Number of Copies. All papers must conform to Rule 32(c)(2). Except by the court’s permission, a paper must not exceed 20 pages, exclusive of the disclosure statement, the proof of service, and the accompanying documents required by Rule 5(b)(1)(E). An original and 3 copies must be filed unless the court requires a different number by local rule or by order in a particular case.
(d) Grant of Permission; Fees; Cost Bond; Filing the Record.
(1) Within 14 days after the entry of the order granting permission to appeal, the appellant must:
(A) pay the district clerk all required fees; and
(B) file a cost bond if required under Rule 7.
(2) A notice of appeal need not be filed. The date when the order granting permission to appeal is entered serves as the date of the notice of appeal for calculating time under these rules.
(3) The district clerk must notify the circuit clerk once the petitioner has paid the fees. Upon receiving this notice, the circuit clerk must enter the appeal on the docket. The record must be forwarded and filed in accordance with Rules 11 and 12(c).
Every circuit has different internal rules for initiating an interlocutory appeal. It’s up to the practitioner to understand their implementation; all attorneys should fastidiously study the applicable rules to make sure requirements of appeal are met. source
Table of Supreme Court Decisions Overruled by Subsequent Decisions (1798-2023)