Civil orders and judgments frequently are not entered immediately upon the conclusion of an evidentiary trial or hearing; judges often need time to consider complicated or extensive evidence to decide how to rule, and civil orders and judgments frequently require extensive findings of fact and conclusions of law which take time to reduce to writing. Regardless of what a trial judge may say at the end of an evidentiary trial or hearing, a civil order or judgment is not entered until it is reduced to writing, signed by the judge, and filed with the clerk of court.
GS 1A, Rule 58.
What happens if the judge who presided over the trial or hearing does not prepare a written order or judgment or is no longer available to sign an order or judgment prepared by the attorneys at the direction of the trial judge? Or, if a judgment is appealed and the case is remanded by the appellate court, what happens if the original trial judge is no longer available to comply with the remand instructions? Can another judge sign the written order or judgment resolving the case?
The North Carolina Supreme Court recently issued two opinions indicating that the circumstances under which a judge can enter an order or judgment when that judge did not preside over the trial or hearing in the case are very limited. A chief district court judge or a senior resident superior court judge can act as a substitute judge to sign an order or judgment only when the judge who presided over the evidentiary hearing is unable to enter the judgment or order and only when the presiding judge made the findings of fact and conclusions of law that are based upon the evidence introduced during the evidentiary hearing.
Civil Procedure Rule 63
Titled “Disability of a Judge,”
Rule 63 authorizes a chief district court judge or a senior resident superior court judge to enter judgments under certain circumstances when a trial judge is unable to do so. The Rule states:
“If by reason of death, sickness or other disability, resignation, retirement, expiration of term, removal from office, or other reason, a judge before whom an action has been tried or a hearing has been held is unable to perform the duties to be performed by the court under these rules after a verdict is returned or a trial or hearing is otherwise concluded, then those duties,
including entry of judgment, may be performed:
- In actions in the superior court by the judge senior in point of continuous service on the superior court regularly holding the courts of the district. If this judge is under a disability, then the resident judge of the district senior in point of service on the superior court may perform those duties. If a resident judge, while holding court in the judge’s own district suffers disability and there is no other resident judge of the district, such duties may be performed by a judge of the superior court designated by the Chief Justice of the Supreme Court.
- In actions in the district court, by the chief judge of the district, or if the chief judge is disabled, by any judge of the district court designated by the Director of the Administrative Office of the Courts.
If the substituted judge is satisfied that he or she cannot perform those duties because the judge did not preside at the trial or hearing or for any other reason, the judge may, in the judge’s discretion, grant a new trial or hearing.”
The two recent cases from the North Carolina Supreme Court make it clear that the authority granted by Rule 63 is not as broad as it may sound.
In the Matter of K.N., 874 SE2d 594 (N.C., July 2022)
The trial judge in this case conducted a termination of parental rights trial and entered an order terminating the parental rights of respondent father. Father appealed the order. The court of appeals vacated the termination order and remanded the case to the trial court for additional findings of fact. The remand instructions from the appellate court provided that the trial court could make the required findings of fact based on the record or the judge could allow the parties to present additional evidence.
While the case was in the appellate court, the trial judge died.
Once the case was returned to the trial court, all parties agreed that the matter would be assigned to the chief district court judge. The chief judge held a hearing and indicated her intent to review the record, the trial transcript and any proposed new findings of fact submitted by the parties. The chief judge did not reopen the evidence or hold any other evidentiary hearing, and she entered a new termination order.
Father appealed again, arguing that the termination order was a nullity because the trial judge did not enter the order. The supreme court agreed and held that the trial court must conduct a new trial.
Civil Procedure Rule 52 requires that “in all actions tried without a jury or with an advisory jury, the court shall find the facts specifically and state separately its conclusions of law thereon and direct the entry of the appropriate judgment.”
GS 1A, Rule 52(a)(1). The supreme court held that “a substitute judge who did not preside over the matter lacks the power to find facts or state conclusions of law,” and Rule 63 does not change that rule. If, however, the trial judge made findings of fact and conclusions of law and “the chief judge [does] nothing more than put [her]signature on the order and enter it ministerially, the order is valid.”
In this case, while the trial judge had made many findings of fact and conclusions of law in the original termination order, that order had been vacated on appeal, making those findings and conclusions unavailable to the chief judge. All findings and conclusions made in the new termination order were based on the chief judge’s review of the record and the trial transcript and were, therefore, invalid.
In the Matter of E.D.H., 381 NC 395 (2022)
Also a termination of parental rights case, the trial judge conducted the trial and took the matter under advisement. The trial judge then retired. Two months following the retirement of the trial judge, the chief district court judge signed an order terminating the parental rights of the respondent mother, including the following in the written order: “Findings of fact, conclusions of law, and decretal announcement made in chambers [by the trial judge], administratively and ministerially signed by [the Chief District Court Judge].”
Mother argued on appeal that the termination of parental rights order was a nullity because it was not entered by the trial judge.
The supreme court agreed that “a substitute judge cannot find facts or state conclusions of law in a matter over which he or she did not preside.” However, in this case, the chief judge who signed the order specifically stated that the trial judge made the findings of fact and entered the conclusions of law and decretal announcements during an in-chambers meeting with the attorneys in the case before she retired. According to the supreme court, the order was valid because the trial judge made the findings and conclusions of law and the chief judge “did nothing more than put his signature on the order and enter it ministerially.”
