The trial judge who presides over a hearing or trial is supposed to, and usually does, sign the resulting written order. But what happens if that normal process is not followed? What options do the parties have?
Last week, the Supreme Court articulated one option that is not available: filing a notice of appeal. In re C.M.C. involved a bench trial of a petition for termination of parental rights. The trial was conducted by Judge A, who issued an oral ruling terminating the mother’s parental rights. A month later, Judge B signed written orders memorializing Judge A’s rulings. The mother timely appealed from those written orders.
Two days after the notice of appeal was filed, the county department of social services filed a Civil Rule 60 motion seeking to vacate the written orders that had been improperly signed by Judge B. Judge B vacated her original orders, and then Judge A entered new orders memorializing her prior oral rulings from the bench.
In the Supreme Court, the mother argued that because her appeal was already pending when the county moved for Rule 60 relief, (1) Judge B lacked jurisdiction to vacate the orders being challenged on appeal, and (2) Judge A lacked jurisdiction to enter new orders. After all, a notice of appeal usually strips the trial tribunal of authority to enter further orders that could impact an order being challenged on appeal. See N.C. Gen. Stat. § 1-294. Moreover, a trial court’s decision to disregard the effect of a section 1-294 stay often means that orders entered in violation of the stay are void—a circumstance that the Supreme Court has classified as having jurisdictional significance. See Wiggins v. Bunch, 280 N.C. 106, 110, 184 S.E.2d 879, 881 (1971).
Nonetheless, the Supreme Court rejected the mother’s arguments on appeal and held that the second set of termination orders signed by Judge A were appropriate and operative.
The Supreme Court first noted that orders signed by the wrong judge are a legal “nullity,” citing with approval several Court of Appeals decisions stating the same thing.
The Supreme Court then took another step, holding that because Judge B’s written orders were not signed by the correct trial court judge, no judgment (or otherwise appealable order) had been entered under Civil Rule 58. As a result, the Supreme Court held that the mother’s notice of appeal from Judge B’s written orders was invalid and did not trigger the section 1-294 stay. Therefore, Judge B retained authority to vacate her original orders, and Judge A was authorized to enter new orders—despite the pendency of the appeal.
This opinion raises several interesting questions.
- What if the county had never filed a Rule 60 motion? Or, what if Judge B had declined to vacate the orders? Would the mother’s appeal from Judge B’s orders still have been improper? If not by notice of appeal, what is the proper procedural method for obtaining appellate review of a trial court order signed by the wrong judge?
- If an order entered by the wrong judge is a legal nullity that cannot be challenged by filing a notice of appeal, is the order subject to collateral attack months, years, or even decades later? Could the mother have been held in contempt for violating written orders signed by the wrong judge that she never sought to appeal?
- Could the county have instead pursued a Bell v. Martin-like solution (i.e., obtaining prior permission from the Supreme Court for Judges A and B to enter the modified orders)?
- More broadly, does this principle (that a notice of appeal is invalid when taken from an order that is a legal nullity) apply in other contexts? For example, the general rule is that an order entered without jurisdiction is a nullity. See, e.g., State v. Sams, 317 N.C. 230, 235, 345 S.E.2d 179, 182 (1986). In light of the Supreme Court’s decision, can a party still challenge that order by filing a notice of appeal? Can a trial judge modify an order being challenged on subject matter jurisdiction grounds without violating the section 1-294 stay? Or is In re C.M.C. distinguishable?
- Similarly, the general rule is that only the judge who tries a case is authorized to decide a Rule 59 motion for a new trial. See, e.g., Sisk v. Sisk, 221 N.C. App. 631, 633, 729 S.E.2d 68, 70 (2012). If a different judge nevertheless enters an order on such a motion, may a party appeal from the order? Or is the party limited to the appellate courts’ equitable jurisdiction via a petition for writ of certiorari?
As always, we are interested to get your take on this new opinion and whether it could impact other areas of the law. Let us know your thoughts in the comments below!