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When there is a change in the Business Court Judge handling your case, there is probably a natural reaction to try to get the new Judge to revisit rulings by the previous Judge which were unfavorable to your client. That effort is most likely to come to naught, as illustrated by Judge Bledsoe's decision last week in DeGorter v. Capitol Bancorp Ltd., 2014 NCBC 62 [an enhanced version of this opinion is available to lexis.com subscribers].
DeGorter had been on the losing end of a summary judgment ruling by Judge Murphy, in June 2014, before Judge Murphy's retirement. After Judge Bledsoe succeeded to what was remaining of the case, DeGorter moved for reconsideration of the summary judgment ruling.
Of course, DeGorter immediately ran into the buzz saw of the principle that:
‘[o]ne superior court judge may only modify, overrule, or change the order of another superior court judge where the original order was (1) interlocutory, (2) discretionary, and (3) there has been a substantial change of circumstances since the entry of the prior order.’
Op. ¶33 (quoting Taidoc Tech Corp. v. OK Biotech Co., Ltd., 2014 NCBC 48 at ¶11)
So what was the "substantial change in circumstances" offered by DeGorter in support of his Motion for Reconsideration? It was pretty skimpy. He said that a new Judge had been appointed and that he had filed a Motion for Reconsideration before the new Judge. Judge Bledsoe said that accepting those things as a basis for changing Judge Murphy's previous order was insufficient because it would "open the floodgates' and invite reconsideration of numerous matters decided in the months preceding [his] appointment." Order ¶35.
Judge Bledsoe refused to tamper with Judge Murphy's Order.
So if you are thinking of taking a stab at having one of Judge Murphy's rulings changed or overruled by the Judge taking over his case, you probably shouldn't bother. Your chances of getting a Business Court Judge to do that are pretty slim.
Also, making a post-judgment Motion to Amend your Complaint is unlikely to be successful. DeGorter sought to add by amendment a new claim for conspiracy, which would have rested on the claims of constructive fraud and negligent misrepresentation on which summary judgment had been granted. The Judge ruled that although a Motion to Amend following summary judgment was not necessarily prohibited (Op. ¶46), the allowance of this Motion would, in effect, result in an overruling of Judge Murphy because the dismissed claims would need to be the basis for the conspiracy claim. Op. ¶48.
But bit as probably fatal to the effort to add a conspiracy claim when, as Judge Bledsoe observed: "in North Carolina 'there is no such thing as a civil action for conspiracy." Op. ¶50 (quoting Reid v. Holden, 242 N.C. 408, 414, 88 S.E.2d 125, 130 (1955)).
Don't like a now-retired Business Court Judge's ruling? You are probably stuck with it.
Read other articles on the North Carolina Business Litigation Report, a blog for lawyers focusing on issues of North Carolina business law and the day-to-day practice of business litigation in North Carolina courts.
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