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Civil Practice – Joinder – Pretrial Motions – Trial Judge

A superior court judge erred in granting a pretrial motion to consolidate when he was not scheduled to preside over the trial of the consolidated case; nevertheless, the presiding judge corrected the error – he implicitly found that joinder was proper when he presided over the trial of the consolidated case.

We reverse the Court of Appeals’ ruling, which vacated the consolidation order and remanded the newly unconsolidated cases to superior court. We remand to the Court of Appeals to consider other issues that its decision did not reach.

Under Oxendine v. Catawba County Department of Social Services, 303 N.C. 699, 281 S.E.2d 370 (1981), a judge who is not scheduled to preside at the consolidated trial cannot consolidate two or more cases for trial. Whether cases should be consolidated for trial is to be determined in the exercise of his sound discretion by the judge who will preside during the trial.

Here, the pretrial judge made a procedural error in issuing the consolidation order. The trial judge was free to sever the case sua sponte for any reason he deemed appropriate.

Nevertheless, the trial judge signed a pretrial order that left the cases consolidated and ultimately presided over a consolidated trial. So the trial judge implicitly made his own determination: that the cases should be consolidated for trial.

When he did so, his determination on consolidation replaced the pretrial judge’s determination as the operative one in these proceedings. By substituting a procedurally sound determination in place of a procedurally unsound one, the trial judge corrected the procedural error that the pretrial judge’s consolidation order had injected into this case.

A litigant who thinks that consolidation was improper under Oxendine may not wait until a consolidated trial is over and then object to consolidation just because the litigant does not like the outcome of the consolidated trial. Under today’s decision, though, the authority to consolidate cases for trial remains in the hands of the judge who will preside at trial. That is Oxendine’s rule; it is sound; and we reaffirm it.

However, Oxendine’s holding – that the judge who is assigned to hear preliminary matters but not scheduled to preside at trial cannot even issue an order consolidating related cases – cannot be easily harmonized with modern-day best practices for litigation. Because of the rotation process used to assign superior court judges, the judge hearing preliminary motions is often not the judge scheduled to preside at trial. Given modern litigation practices, the pretrial judge’s early consolidation order, although procedurally improper, made good practical sense.

Nevertheless, we decline to disturb the rule of Oxendine. It is enough to say that the judge who presides at a consolidated trial can effectively correct the procedural error that an earlier judge makes under Oxendine.

Reversed and remanded.


(Newby, J.)  I agree with the majority that the pretrial judge’s consolidation order had no binding effect on the trial judge because the pretrial judge was not scheduled to preside over the trial.

By ultimately trying the cases together, the trial judge implicitly ratified the consolidation decision, leaving the trial and judgment untainted. Thus, the pretrial judge’s initial decision to consolidate was a proper pretrial order, acquiesced to by the parties and ultimately ratified by the trial judge at trial.

Accordingly, I do not believe the pretrial judge committed “error.” My concern is that, by labeling a preliminary pretrial consolidation order “error,” the majority opinion will squelch the entry of these useful orders contemplated by N.C. R. Civ. P. 42. Therefore, I concur in the result only.

Boone Ford, Inc. v. IME Scheduler, Inc. (Lawyers Weekly No. 010-069-18, 15 pp.) (Mark Martin, C.J.) (Paul Newby, J., concurring in the result only) Appealed from Watauga County Superior Court (Jeff Hunt, J.) On appeal from the Court of Appeals. Anné Wright for appellant; Nathan Miller for appellees. N.C. S. Ct.


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