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.

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Click Here for Patterns and Consequences of Judicial Reversals: Theoretical Considerations and Data from a District Court

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One Trial Judge Overruling Another

Michael Crowell –  UNC School of Government

1. 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.

2. 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).

3. The rule is relevant only to interlocutory orders

1. 1. 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.
   2. 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.
   3. 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).
   4. 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.
   5. There are instances in which a trial court may modify a final order.
      1. 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).
      2. 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).
      3. In a criminal case, G.S. 15A-1420 provides for a motion for appropriate relief.

4. The rule is applicable to district court and the Court of Appeals as well as superior court.

1. 1. 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).
   2. 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).

5. 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.

1. 1. 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.
   2. 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).

6. Examples of matters of law on which a second trial judge could not overrule or modify an order of a previous judge:

1. 1. 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).
   2. Decision on whether a statute authorizes an award of attorney’s fees. Able Outdoor Inc. v. Harrelson, 341 N.C. 167 (1995).
   3. Exclusion of time from calculation for Speedy Trial Act. State v. Sams, 317 N.C. 230 (1986).
   4. Dismissal of case for failure to complete service. Bumgardner v. Bumgardner, 113 N.C. App. 314 (1994).

7. 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:

1. 1. 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).
   2. 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).

8. 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:

1. 1. 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).
   2. 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).
   3. Class certification. Dublin v. UCR, Inc., 115 N.C. App 209 (1994).
   4. 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).

9. Second motions for summary judgment

1. 1. 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).
      1. 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).
      2. 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).
   2. 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).
   3. 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).
   4. 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.
      1. 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).

10. Examples of statutes and rules authorizing a second judge to modify a previous order or action

1. 1. 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).
   2. 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.
   3. 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).
   4. As mentioned above, G.S. 15A-1420 provides for motions for appropriate relief in criminal cases.

11. Some procedural decisions are within the discretion of the trial judge regardless of previous orders by another judge

1. 1. 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).
   2. 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).

12. A second judge is not bound by an earlier judge’s order that is void

1. 1. 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).
   2. 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

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One Superior Court Judge Overruling Another?

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)

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