Tuesday’s batch of Court of Appeals opinions contained two scenarios in which a trial court’s oral ruling failed to align with its subsequent written order. While one of the “inconsistent” orders was remanded, the other order was affirmed. Let’s talk about why.
The order that was affirmed, In re O.D.S., involved a Rule 3.1 appeal. The trial court stated on the record that DSS had proven abuse and neglect but made no ruling as to dependency. However, when the written order was entered, it was based on a finding of dependency, as well as a finding of abuse and neglect.
On appeal, the appellant-parent argued that the trial court was precluded from including a ground in its written order not addressed when the trial court’s judgment was rendered in open court. Moreover, the parent pointed to several Court of Appeals cases which, at first blush, appeared to support his argument.
In a helpful tutorial on Rule 58 of the North Carolina Rules of Civil Procedure, Chief Judge McGee explained why differences between oral rulings and written orders are generally no longer fatal on appeal. Prior to 1994, a judgment could be “entered” based on a trial court’s oral rendition of its ruling in open court. Thus, pre-1994 cases holding that oral and written orders are required to align in content are based on the premise “that [an] orally rendered judgment had already been entered and was therefore already in effect.” In re O.D.S. (emphasis in original).
In 1994, Rule 58 was amended to change when an order is considered “entered.” Today, an order is not entered until it is reduced to writing, signed by the trial court, and filed with the clerk of court. A trial court “renders” an oral ruling when it is announced in open court, but that oral ruling is subject to change until the written order is “entered” (i.e., reduced to writing, signed by the trial court judge, and filed with the clerk of court). Consequently, substantive changes to a trial court’s ruling between the oral entry and written entry of judgment generally are not considered reversible error.
Chief Judge McGee acknowledged a line of opinions, including a fairly recent case, which held that “if there is a discrepancy between the written order and the oral rendering of the order in open court …, the transcript is considered dispositive.” In re O.D.S. (quoting In re J.C., 783 S.E.2d 202, 205 (2014)). In re J.C. was distinguished because it was based on a questionable extension of case authority and is in conflict with numerous other opinions on this topic. Moreover, the O.D.S. court specifically disavowed the “proposition that the trial court is always bound by its pronouncements in open court.”
Still, Chief Judge McGee acknowledged “circumstances in which [a] deviation from the judgments rendered in open court” could constitute reversible error. For example, “when it is apparent from the transcript that a clerical error has been committed on the written order, remand is appropriate so that the trial court can correct the clerical error.” In re O.D.S.
This pronouncement segues to the second Court of Appeals opinion on discrepancies between oral rulings and written orders. In State v. Lewis, the sentence pronounced by the trial court in open court was inconsistent with the sentence contained in the written judgment. Because it categorized the differences between the transcript and written judgment as clerical errors, the Court of Appeals remanded the case to the trial court with instructions to correct the judgment “to accurately reflect the sentence imposed.”
So how does an appellate court determine whether differences between an oral ruling and written order constitute a permissible change of mind or a correction of an oversight by the trial court judge? When are discrepancies between the transcript and the written order likely to be viewed as clerical errors? It all boils down to whether the appellate court is convinced that the written order accurately reflects the intent of the trial court judge. Factors that appellate courts may be looking at when making their determination include:
- Whether the order states that the trial court, after further consideration, has decided to modify its oral ruling.
- Whether the trial court’s written order directly contradicts its earlier oral ruling. A trial court’s silence on a point in open court is less likely to be seen as a clerical error if that point is later incorporated into a written judgment.
- The degree and type of differences between the oral ruling and written order, including whether the mistake is an obvious typographical or recording error.
- Whether the alleged clerical error was created by the court, a clerk, or counsel. Modifications to an oral ruling made by anyone other than the judge may warrant closer scrutiny.
- Whether the discrepancies between the written and oral rulings were brought to the trial court’s and/or counsel’s attention.
Under amended Rule 58, a written order is an effective tool for “cleaning up” statements made by counsel and the trial court judge in open court. However, if after an appeal is filed, you discover baffling inconsistencies between a transcript and a written order that could create problems for your appeal, consider creative ways of heading off conflict. Under Civil Procedure Rule 60(a), clerical mistakes can be corrected before an appeal is docketed in the appellate division. Alternatively, Appellate Rule 11 allows a trial court to resolve conflicts about statements or narrations in the appellate record during the judicial settlement process.