I don’t know why lawyers keep trying to get Business Court Judges to overrule decisions by one of their predecessors. It is just not going to happen, as illustrated (yet again) by Judge Bledsoe’s decision in County of Catawba v. Frye Regional Medical Center, Inc., 2015 NCBC 17.
Judge Murphy, in October 2014, had granted summary judgment in favor of the Defendant on Plaintiff’s claims of fraud and unfair and deceptive practices. Plaintiff, disagreeing with the ruling, first filed a Motion for Reconsideration (which it withdrew), and followed it with a "Motion for Revision." It filed both motions after Judge Murphy’s retirement.
Judge Bledsoe observed that both motions "seek the same relief — reversal of Judge Murphy’s [summary judgment order" ]. Op. ¶8.
If you read this blog, you know that the Business Court has already rejected the argument that Judge Murphy’s retirement, and the resulting change in the Business Court Judge handling the case, is not a "substantial change in circumstances" giving the new Judge the authority to modify, overrule, or change Judge Murphy’s Order.
But the Plaintiff in the Catawba County case made a new argument as to why Judge Bledsoe had the authority to overrule Judge Murphy. It relied on Rule 63 of the North Carolina Rules of Civil Procedure, entitled "disability of a Judge," which says that:
If by reason of death, sickness or other disability, resignation, retirement, expiration of term, removal from office, or other reason, a judge before whom an action has been tried or a hearing has been held is unable to perform the duties to be performed by the court under these rules after a verdict is returned or a trial or hearing is otherwise concluded, then those duties, including entry of judgment, may be performed:
(1) In actions in the superior court by the judge senior in point of continuous service on the superior court regularly holding the courts of the district.
Judge Bledsoe disagreed that Rule 63 granted him the authority to overrule Judge Murphy, stating:
Plaintiff essentially contends that [Rule 63] treats Judge Murphy’s retirement at the expiration of his term of office as an invitation to this Court to decide Defendants’ SJ Motion anew. The Court disagrees. Not only would such a reading ignore the North Carolina rule that one Superior Court judge generally cannot overrule another, but read in context, the Court concludes that Rule 63 is intended for situations where, for example, a Superior Court judge leaves the bench prior to entering a written order on a matter that has been heard, or before a matter is remanded from the appellate courts with instructions for further action. The Court does not read Rule 63 to address the situation here, where Judge Murphy received the parties’ briefs, held a hearing, issued a written order ruling on the parties’ arguments and dismissing claims, and then left the bench.
Those of you who are civil procedure aficionados are no doubt thinking about NCRCP 54(b), which says that in the absence of a final judgment, "any order . . . is subject to revision at any time before the entry of judgment adjudicating all the claims and rights and liabilities of all the parties."
Judge Bledsoe recognized that his Opinion means that a party loses its "right to seek revision of a summary judgment ruling by the trial court under Rule 54(b) when the issuing Superior Court Judge retires or otherwise leaves the bench prior to the entry of a final judgment." Op. ¶16.
Judge Bledsoe also observed that allowing him to overrule Judge Murphy’s decision would invite a "potential sea of motions. . . from disappointed litigants seeking to overturn decisions issued in the last weeks of [a] departing judge’s service on the bench." Op. ¶17 & n.2.
So what’s the remedy for the unhappy Plaintiff in this case? As Judge Bledsoe put it, "the party’s redress is with the North Carolina appellate courts and not with another Superior Court judge." Op. ¶17.