If you’ve been practicing in North Carolina long enough, you have undoubtedly encountered this fact pattern:
- A judge issues a ruling from the bench and asks the prevailing party to draft the order.
- The prevailing party adds a few flourishes to the proposed order that go beyond the orally rendered ruling. (Or, worse still, the prevailing party adds substantive provisions to the proposed order that contradict the orally rendered ruling.)
- You object and submit a so-called “competing” order.
- The judge signs the prevailing party’s order.
Can you appeal based on the discrepancy between the written order and the oral decision?
The general answer is “no.”
That drives lawyers and clients crazy, but it is the clear consequence of rule amendments dating back to 1994. It is also (arguably) better than the alternative.
Before 1994, a trial court could orally render a decision in a civil case. The courtroom clerk would make a notation to that effect, and the decision was considered final and appealable.
That system caused all kinds of problems. Judges would sometimes orally announce a decision and then enter a written decision thereafter that differed in key respects. Parties would sometimes appeal in the interim. So, what exactly was on appeal? Which ruling was operative? The Court of Appeals wrestled repeatedly with these questions, sometimes finding error based on a discrepancy between the written and oral rulings.
The 1994 amendments to Civil Rule 58 largely put those issues to rest, at least in civil cases. Now, a judgment (or order) is not “entered” until it is “reduced to writing, signed by the judge, and filed with the clerk of” the trial court. The amendments had the salutary effect of making it easier to identify what constituted the decision to be appealed and when the appeal clock started to run.
Does that mean a written decision can alter or flat-out contradict the orally rendered decision? For the most part, yes.
The Court of Appeals explained why recently in Pallen v. Wingfield. There, defendants moved for attorney fees on multiple grounds, including that plaintiffs’ claims were non-justiciable under N.C. Gen. Stat. § 6-21.5. In open court, the trial court said, “I’m going to deny any claim as far as nonjusticiable issue.” The written order that followed, however, did the opposite, awarding fees under § 6-21.5, among other grounds.
The Court of Appeals found that the discrepancy was not a reversible error. True, there is one outlier decision, In re J.C., 236 N.C. App. 558 (2014), in which a panel reversed because of such a discrepancy. That decision has been called into question and limited to its facts, though. And in Pallen, the parties submitted post-hearing briefing debating whether plaintiffs’ claims were justiciable under § 6-21.5. That was enough for the Court of Appeals to affirm.
A few exceptions remain. If it appears that the written order contains a clerical error, an appellant might be able to challenge it using a transcript of the hearing. See In re O.D.S., 247 N.C. App. 711 (2016) (“[W]hen 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.”). And in criminal cases, where oral judgments are still allowed, the Court of Appeals will sometimes credit a transcript over check marks on the written AOC-form judgment. See State v. Munjal, 249 N.C. App. 234 (2016) (remanding with instructions for trial court to alter the written judgment to show that defendant’s probation was unsupervised, as announced in open court, not supervised as noted on the written judgment).
None of this is to say that judges are regularly reversing themselves after hearings. But when they do, a procedural objection is not likely to prevail as a standalone appellate issue.