Plaintiff wins a 2nd MSJ from Judge B after 1st MSJ was denied by Judge A, using unchanged MSJ?

Defendant is my mother, dependent spouse, pro se, currently going through simultaneous Divorce and ED lawsuits.

Background of last two hearings
4/15/19 Hearing on MSJ in Divorce (Judge A presiding): Plaintiff seeks Summary Judgment based on Defendant (mother) not having filed her Answer to Complaint, not having any ‘triable issues’, and Plaintiff obtaining a Clerk’s Default int he divorce in January hearing.

However, prior to this hearing my mother had filed her Answer and Counterclaim seeking fault b/c of cheating (she has proof), asking for Alimony, and asking for Postseparation Support. Additionally, she and Plaintiff (her husband) made an agreement to set Aside the Clerk’s Default, and he gave her written permission and a signed Unopposed Motion to Vacate the Default.

At the hearing, the Judge denied the MSJ stating to Plaintiff’s Counsel “She filed her Answer AND she has triable issues sir.” The two grounds for seeking MSJ (not filing an Answer, and not having triable issue) were no longer valid, thus MSJ denied. Makes sense. Judge A then told Plaintiff and Defendant that she was setting the next hearing for Status Conference.

~5/5/19: Get Notice of MSJ in Divorce for a second time, this time set for the 5/13/19 hearing. She notices the content of the MSJ has not changed one letter. Same grounds as before (not filing an Answer and having no triable issues). She writes and files an Opposition to Plaintiff’s MSJ basically listing the problems and the fact that it was denied previously because Defendant HAS filed an Answer, and HAS triable issues, as directly told to opposing counsel at previous hearing by Judge A.

5/13/19 Hearing on MSJ in Divorce for second time, and on the Unnoposed Motion to Vacate Clerk’s Default filed in January (Judge B presiding): According to my mother, she arrives at the hearing, some time later opposing counsel comes out of judge’s chambers. Judge B confers opposing counsel, then ask’s my mother “Where’s the fraud?”. My mother is confused, as that is something relevant to her ED case and she is supposed to be at a Status Conference Divorce, as noted on Court Calendar. Judge B then asks Opposing Counsel “So she has no triable issues?” Opposing counsel only says “Well, she has ED pending…” Judge B then turns to my mother and says “Their Summary Judgment is granted”, cuts off her response, tells opposing counsel to give her (Judge B) an Order to sign (which he does), she signs it and ends the hearing.

5/14/19 I get the story of the hearing from my mother the next day. Judge B did not mention the Opposition to MSJ. She did not seem aware that Judge A had denied the previous MSJ, or that Defendant had filed Answer and Counterclaim. It turns out that the Motion opposing counsel gave Judge B (when she asked my mom about the fraud) was from the ED case and NOT the Motion that was on the Court Calendar (a Motion to Vacate Clerk’s Default). That confused my mother, who is in her mid 60s and thought she was there for a simple Status Conference, and that with the Opposition to MSJ she had filed that the MSJ wouldn’t even been heard a second time.

…and that catches up to present day. Can anyone explain what happened there? From what I understand there are multiple things that were wrong. What can she do to undo the Summary Judgment? She’s been writing up a Motion to Vacate Order Summary Judgment pursuant to Rule 60b and other law listing everything that was wrong with the judgment and proceedings. Is that the proper response? I can already see a number of issues that I listed below, are they valid?

  1. MSJ was denied by Judge A. Judge B should not have made a different ruling given that the MSJ was not rewritten and the circumstances of the case hadn’t changed. North Carolina Superior Court Judges’ Benchbook Section IX on Second Motions for Summary Judgment states “A decision on summary judgment is a decision on a matter of law and may not be overruled by a second trial judge on the same legal issue. Taylorsville Fed. Sav. & Loan ■■■’n v. Keen, 110 N.C. App. 784 (1993).”

  2. Judge A told opposing counsel that they had no grounds as Answer was filed and Defendant “had triable issues”. When Judge B asked opposing counsel if she has triable issues he willingly withheld what Judge A had pointed out because it was adverse to his case. That is a violation of ABA Rule 3(a)(2) clearly states that a lawyer shall not knowingly “fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel”.

  3. Opposing counse brought an UN-NOTICED motion up for hearing with Judge B, which was also not a Motion on the calendar. This confused my mother, who did not have any supporting evidence for that motion with her, since it was not supposed to be heard. That screwed her over on that Motion, which is necessary for her defense in her ED case.

  4. Judge B did not hold a Status Conference or hear the Unopposed Motion that was on the Calendar to Vacate the Clerks Default.

  5. The Order to Grant MSJ that opposing counsel gave Judge B to sign at the 5/13/19 hearing was dated for 4/15/19 (the previous hearing), and stated that “Defendant has not filed her Answer” and that she has no triable issues. It was obviously unchanged from when it was denied by Judge A, but Judge B didn’t even read it and signed it as is.

It is common for a motion for summary judgment for absolute divorce to be denied at one court setting and granted the next. If for absolute divorce, this usually has to do with an error in a detail, for example, not enough time was allowed for the defendant to have filed an answer, the complaint was filed too soon, there, not enough proper notice for the court date, etc. It is granted the second time because the error is corrected.

An absolute divorce can be granted by summary judgment even with other issues pending, including equitable distribution. Summary judgment is granted when there is no genuine issue of material fact. Even if your mother filed an answer and counterclaims (although it sounds as if she may have filed them late), if she did not deny any of the allegations as it relates to absolute divorce (these would be date of marriage, date of separation, that they parties separated with the intent to remain permanently separate and apart, and that the parties have lived continuously separate and apart for at least one year), then there would have been no genuine issue of material fact for the divorce and so the absolute divorce can be granted, and the other contested issues remain pending.

If this is not the case and the summary judgment order was issued in error, then you can file a Rule 60(b) motion to set aside/vacate the summary judgment order.


Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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