BOONE FORD, INC. d/b/a BOONE FORD LINCOLN MERCURY, INC., a Delaware Corporation v. IME SCHEDULER, INC., a New York Corporation and CASH FOR CRASH, LLC, a New Jersey Limited Liability Company v. BOONE FORD, INC. d/b/a BOONE FORD LINCOLN MERCURY, INC., a Delaware Corporation
No. 162A17
IN THE SUPREME COURT OF NORTH CAROLINA
Filed 17 August 2018
800 S.E.2d 94
MARTIN, Chief Justice.
Appeal pursuant to
Reeves DiVenere Wright, by Anné C. Wright, fоr appellant Boone Ford, Inc.
Miller & Johnson, PLLC, by Nathan A. Miller, for defendant-appellee IME Scheduler, Inc. and plaintiff-appellee Cash for Crash, LLC.
This appeal concerns two cases that were consolidated before trial by one superior court judge and then tried by another superior court judge. We hold that the first judge erred in consolidating these cases becausе he was not scheduled to preside over the consolidated trial, but that the judge who presided at trial effectively corrected that error, leaving the trial and judgment untainted. We therefore reverse the decision of the Court of Appeals and remand this case to the Court of Appeals for additional proceedings.
In February 2014, appellant Boone Ford, Inc. filed a сomplaint against appellee IME Scheduler, Inc. In its complaint, Boone Ford set forth five claims for relief relating to IME Scheduler‘s contemplated purchase of a Ford Raptor truck from Boone Ford. That purchase never occurred. In its answer, IME Scheduler asserted five counterclaims against Boone Ford arising out of the same failed transaction. That Septеmber, co-appellee Cash for Crash, LLC filed its own complaint against Boone Ford, alleging conversion and other torts based on an accidental wire transfer of $206,569 that, according to Cash for Crash‘s complaint, Boone Ford refused to return for three months. It is undisputed that IME Scheduler and Cash for Crash were both owned by the same man, Mikhail Heifitz, when the events at issue in both lawsuits took plaсe. In its answer to Cash for Crash‘s complaint, Boone Ford moved to consolidate the two cases.
The superior court held a hearing on Boone Ford‘s motion to consolidate in April 2015, with Judge Jeff Hunt presiding. During the hearing, Judge Hunt said that he did not know who would preside at trial. There is no evidence in the record that Judge Hunt expected to be, or was scheduled to be, the presiding judge at trial. Judgе Hunt granted the motion the day after the hearing.
Judge William H. Coward was ultimately assigned to preside at trial. In January 2016, he approved a pretrial order setting out various stipulations of the parties. He presided over the consolidated trial in February 2016. The record contains no indication that any party moved to sever the consolidated cases or asked Judge Coward to reconsider whether the cases should have been consolidated. The jury returned a verdict in Boone Ford‘s favor, and Judge Coward issued a judgment that awarded Boone Ford $70,000 in damages plus interest and costs.
In Oxendine, Judge Forrest A. Ferrell—the judge who was presiding over pretrial matters in the superior court action in that case—granted a motion to consolidate two actions even though “[t]here was no indication that he was scheduled to preside” at the trial of the сonsolidated cases. 303 N.C. at 704, 281 S.E.2d at 373. Adopting a rule first articulated by the Court of Appeals in Pickard v. Burlington Belt Corp., this Court stated that “a consolidation cannot be imposed upon the judge presiding at the trial by the preliminary Order of another trial judge.” Id. at 703, 281 S.E.2d at 373 (quoting Pickard v. Burlington Belt Corp., 2 N.C. App. 97, 103, 162 S.E.2d 601, 604-05 (1968)). Applying this procedural rule from Pickard, this Court held that Judge Ferrell‘s entry of a consolidation order was “procedurally in error” and vacated that order. Id. at 703-04, 281 S.E.2d at 373. Thus, under Oxendine, a judge who is not scheduled to preside at the consolidated trial cannot consolidate two or more cases for trial. Id. “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 . . . .” Id. at 703, 281 S.E.2d at 373 (emphasis added) (quoting Pickard, 2 N.C. App. at 103, 162 S.E.2d at 604-05).
Here, Judge Hunt stood in the same position that Judge Ferrell did in Oxendine. There was no indication in this case, either at the consolidation hearing or at any other time, that Judge Hunt was scheduled to preside over the consolidated trial. As we have already said, Judge Hunt noted at the consolidation hearing that he did not know who would preside at trial. Like Judge Ferrell in Oxendine, then, Judge Hunt made a procedural error in issuing the consolidation order in question.
This does not end our analysis, however, because Judge Coward had the authority to make his own determination on consolidation. Under Oxendine, Judge Hunt‘s consolidation order could not bind Judge Coward. Id. at 704, 281 S.E.2d at 373. And although the record does not indicate that any party raised the question of consolidation before Judge Coward at any time, that does not change our analysis. Requiring Judge Coward to wait for a party to raise the issue of consolidation before acting on it, after all, would prevent him from severing the cases unless a party movеd to sever. This requirement would allow Judge Hunt‘s order to bind Judge Coward in this instance, because no party moved before Judge Coward to sever the cases. That, in turn, would impose a restriction on the Oxendine rule that does not exist. Judge Coward therefore must have been free to sever the cases sua sponte for any reason he deemed appropriate.
It is worth emphasizing the dramatically different postures in which this case and Oxendine came before our Court. The plaintiffs in Oxendine filed an interlocutory appeal less than a week after the entry of the consolidation order. See 303 N.C. at 701-02, 281 S.E.2d at 372. In other words, when Oxendine reached our appellate courts, no trial had occurred, and no judge had been assigned to preside at trial. As a result, no judge presiding at trial had the chance to correct the error that Judge Ferrell had made. Only the appellate courts could correct it, and this Court did so. See id. at 704, 281 S.E.2d at 373. In this case, by сontrast, Judge Coward was assigned to preside at, and did in fact preside at, the consolidated trial. He had already corrected the procedural error in question by the time the trial here took place, which left no error for the appellate courts to address. Because the appeal in this case was filed much later in this case‘s proceedings than the аppeal in Oxendine was filed in that case‘s proceedings, and because in this case the second judge corrected the error that arose on the first judge‘s watch, this case is both factually and legally distinguishable from Oxendine.
The Oxendine rule—that is, the rule that “the discretionary ruling of one superior court judge to consolidate claims for trial may not be forced upon another superior court judge who is tо preside at that trial,” id. at 704, 281 S.E.2d at 373—was undoubtedly designed with the constitutionally mandated rotation of superior court judges in mind. See
The holding of Oxendine, however, is on somewhat shakier ground. Oxendine could have held that Judge Ferrell‘s consolidation order could not bind any later-in-time judge but that the order was still valid until a later-in-time judge made a different determination. Instead, Oxendine held that it was improper for Judge Ferrell even to issue the consolidation order in the first place. See 303 N.C. at 703-04, 281 S.E.2d at 373. This holding does not necessarily follow from Oxendine‘s rule, and its application may be impractical in some cases.1
The concurring opinion tries to resolve this tension by arguing that Judge Hunt did not commit error in this case at all. But Oxendine‘s holding simply cannot be squared with a conclusion that no error occurred here. Both here and in Oxendine, a judge not scheduled to preside at trial consolidated two cases for trial, and Oxendine declared that the consolidation in that case was “procedurally in error,” 303 N.C. at 703, 281 S.E.2d at 373, precisely because “[t]here was no indication that [the judge in question] was scheduled to preside at . . . trial,” id. at 704, 281 S.E.2d at 373. The concurrence says nothing to distinguish the consolidation order in this case from the one in Oxendine, presumably because the two orders are not distinguishable. The meaningful difference between the two cases arose only when Judge Coward was assigned to preside at trial. At that point in time, Judge Coward could and did correct an error that had been made. But it is logically impossiblе that he retroactively caused no error to have been made at all. We have only two options: either declare Judge Hunt‘s order “procedurally in error” or overrule Oxendine outright. We cannot leave Oxendine in place while also declaring that no error occurred here.
And Oxendine has been good law for nearly four decades. We should not casually disturb our longstanding precedent, and we do not need to disturb it today to decide this case. 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. We hold that Judge Coward‘s implicit determination that the cases in question should be consolidated for trial replaced Judge Hunt‘s determination on consolidation and corrected the procedural error that Judge Hunt had made. We therefore reverse thе decision of the Court of Appeals and remand this case to the Court of Appeals to consider other issues that its decision did not reach.
REVERSED AND REMANDED.
BOONE FORD, INC. V. IME SCHEDULER, INC.
Newby, J., concurring in the result only
Justice NEWBY concurring in the result only.
Parties need to know the structure of the trial as early as possible to plan for the presentation of witnesses and evidence, to organize exhibits, and to conduct trial preparation generally.
[T]he judge may order a joint hearing or trial of any or all the matters in issue in the actions; he may order all the actions consolidated; and he may make such orders concerning proceedings therein as may tеnd to avoid unnecessary costs or delay.
We have often said that “one superior court judge ordinarily may not overrule a prior judgment of another superior court judge in the same case on the same issue.” State v. Duvall, 304 N.C. 557, 561, 284 S.E.2d 495, 498 (1981) (quoting State v. Duvall, 50 N.C. App. 684, 691, 275 S.E.2d 842, 850 (1981), rev‘d on other grounds, Duvall, 304 N.C. 557, 284 S.E.2d 495). “This rule does not apply, however, to interlocutory orders given during the progress of аn action which affect the procedure and conduct of the trial.” State v. Stokes, 308 N.C. 634, 642, 304 S.E.2d 184, 189(1983) (citations omitted). “An interlocutory order or judgment does not determine the issues in the cause but directs further proceedings preliminary to the final decree.” Id. at 642, 304 S.E.2d at 190 (citations omitted). “Such order or judgment is subject to change during the pendency of the action to meet the exigencies of the case.” Id. at 642, 304 S.E.2d at 190 (citations omitted).
This case illustrаtes the challenge arising under our Rules of Civil Procedure as we apply them to a system of rotating superior court judges. See
Here, since Judge Hunt was not scheduled to preside over the consolidated trial, his procedural consolidation order had no binding effect on Judge Coward. As the majority notes, trial court judges are presumed to
The rule in Oxendine, that the authоrity to consolidate cases for trial ultimately remains in the hands of the judge who will preside at the trial, does not preclude a trial judge from making a non-binding, preliminary determination that consolidation is warranted in the pretrial stages. This interpretation harmonizes the rule in Oxendine with our North Carolina Rules of Civil Procedure, which expressly contemplate these pretrial matters and allocate the authority to the presiding judge to consolidate without reservation. Nonetheless, parties need as much notice as possible if matters are to be consolidated for trial. Thus, a preliminary ruling on consolidation in the pretrial stages benefits the trial process and thereby serves the ends of justice. Accordingly, I believe no error was committed by the process used herе.