Civil Practice – Subject-Matter Jurisdiction – Superior Court Judges – Discovery Orders

Crook v. KRC Management Corp. (Lawyers Weekly No. 10-07-0738, 20 pp.) (Sam Ervin IV, J.) Appealed from Wake County Superior Court. (Orlando F. Hudson Jr., J.) N.C. App.

Holding: One superior court judge had already denied plaintiffs’ motion to compel the production of documents when plaintiffs again moved to compel the production of documents. Plaintiffs failed to point out the first superior court judge’s ruling to the second superior court judge, and the second judge made no finding of a change of circumstances which would have justified a different outcome. Hence, the second judge’s order granting plaintiffs’ motion to compel impermissibly overruled the first judge’s prior discovery order.

The Oct. 10, 2008, discovery order is vacated. Remanded.

Ordinarily one judge may not modify, overrule, or change the judgment of another superior court judge previously made in the same action.

If one trial judge enters an order that unlawfully overrules an order entered by another trial judge, such an order must be vacated, including any award of fines or costs. Since the issue in question relates to jurisdiction, and jurisdictional issues can be raised at any time, even for the first time on appeal and even by a court sua sponte, defendants are not precluded from raising this issue on appeal by virtue of the fact that they did not raise it at the Oct. 6, 2008, hearing.

We are unable to tell from the record what documents plaintiffs sought to obtain from defendants in connection with their first motion to compel or the legal or factual arguments that were advanced in support of their efforts to obtain those additional materials.

However, the undisputed information in the record establishes that plaintiffs sought production of additional documents and that Judge Allen Baddour’s Aug. 23, 2007, order denied this part of plaintiffs’ motion. Thus, Judge Baddour’s order amounts to a general denial of plaintiffs’ request for the entry of an order compelling defendants to produce additional documents.

In the amendment to their second motion to compel, plaintiffs sought to obtain production of additional documents based on their Feb. 19, 2007, discovery request. The Feb. 19, 2007, request for production of documents had also been the basis for plaintiffs’ first motion to compel production of documents, which Judge Baddour had, in relevant part, denied.

As a result, by seeking the entry of an order compelling the production of documents based on the same request for production of documents that had been before Judge Baddour and which had led to the entry of Judge Baddour’s order refusing to order the production of additional documents, plaintiffs were effectively asking the trial court to modify or overrule Judge Baddour’s earlier order ruling on their original motion to compel, an action that the trial court lacked the authority to take unless the existence of one of the limited number of exceptions to the general prohibition against one trial judge overruling another was established.

The record does not establish that the trial court was formally notified of plaintiffs’ earlier motion to compel and Judge Baddour’s earlier order ruling on that motion. Neither the original second motion to compel nor the amended motion to compel mentioned the first motion to compel or Judge Baddour’s order ruling on that motion.

At the hearing on their second motion to compel, plaintiffs offered the trial court a detailed summary of the parties’ discovery-related interactions and submitted numerous additional exhibits, including a chart labeled “Timeline of [Request for Production of Documents].” Although plaintiffs’ “Timeline” includes the Feb. 19, 2007, discovery request and defendants’ responses, it makes no mention of the motion to compel or Judge Baddour’s order.

In addition, plaintiffs submitted a document intended to demonstrate defendants’ “protracted, deceptive, and manipulative practices to thwart Plaintiffs’ pursuit of this action.” This exhibit, which included a chart of defendants’ discovery responses, also makes no mention of the motion to compel or Judge Baddour’s order.

As a result, none of the filings that plaintiffs made and none of the documents that plaintiffs tendered to the trial court made the trial court aware that Judge Baddour had already ruled on a motion to compel arising from plaintiffs’ Feb. 19, 2007, discovery requests.

Furthermore, in their arguments to the trial court at the Oct. 6, 2008, hearing, plaintiffs contended that they had sought production of certain documents since the submission of their formal discovery request on Feb. 19, 2007, and that defendants had failed to provide the requested discovery. Despite taking the position that they had sought the requested documents throughout the course of the discovery process, plaintiffs did not expressly inform the trial court that they had attempted to obtain the production of additional documents in their first motion to compel discovery, that Judge Baddour had heard their first motion to compel, or that Judge Baddour had entered an order granting their motion to compel in part and denying it in part.

Plaintiffs’ counsel told the trial court that defendants responded to their February 2007 discovery request in April 2007, and that “the next interaction that we had through some motions to compel was seven months later.” This passing reference to a motion to compel does not indicate the date upon which the motion to compel was filed or the contents of that motion. In addition, plaintiffs’ argument made no reference to the disposition of the motion in question.

We conclude that the trial court was never explicitly informed of the existence of Judge Baddour’s earlier order ruling on their request for production of documents, so that it had no warning that the order that it was requested to enter would have the effect of impermissibly overruling or modifying a prior order entered by Judge Baddour.

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. The burden of showing the change in circumstances is on the party seeking a modification or reversal of an order previously entered by another judge.

Plaintiffs make a conclusory assertion in their brief that Judge Hudson’s Oct. 10, 2008, order “dealt with an evolving set of discovery circumstances”; however, they do not articulate any material change in circumstances sufficient to justify modifying or overruling Judge Baddour’s order. Plaintiffs’ arguments are not sufficient to justify upholding the Oct. 10, 2008, order on the basis of a “changed circumstances” theory for two reasons.

First, the determination of whether an adequate change in circumstances has occurred must be made by the trial court, not the parties. The record contains no indication that the trial court made the required “change of circumstances” determination, probably because the trial court was unaware that such a determination needed to be made.

Second, where the trial court fails to find that there has been a material change in circumstances, it has no authority to modify the order of another judge. The Oct. 10, 2008, order contains no findings explaining the reason that the trial court believed that overruling or modifying Judge Baddour’s earlier order was appropriate.

Thus, in the absence of a determination by the trial judge, as reflected in its findings of fact, that a change in circumstances sufficient to justify the overruling or modification of a prior order had occurred, the trial judge lacked the authority to modify an order entered by another trial judge. As a result, the Oct. 10, 2008, order must be vacated, since it effectively overrules or modifies Judge Baddour’s prior order in the absence of adequate findings establishing the existence of changed circumstances justifying the overruling or modification of the prior order.

A sanctions order predicated on an unlawful discovery order is invalid. Since the Oct. 10, 2008, order must be vacated because it impermissibly overrules or modifies Judge Baddour’s earlier order, the subsequent orders sanctioning defendants for failing to comply with the Oct. 10, 2008, order must be vacated as well.

Vacated and remanded.