Huffaker v. Holley , 111 N.C. App. 914 ( 1993 )

433 S.E.2d 474 (1993)

William Michael HUFFAKER
v.
Augustus HOLLEY and Wife, Hazel T. Holley, individually and as Attorney in Fact for William B. Lott and Wife, Fannie T. Lott, and William Henry Terry and Wife, Dorothy B. Terry.

No. 929SC789.

Court of Appeals of North Carolina.

September 7, 1993.

Perry, Kittrell, Blackburn & Blackburn by William L. Griffin, Jr., Henderson, for plaintiff-appellant.

C.C. Malone, Jr., Durham, for defendants-appellees.

McCRODDEN, Judge.

In plaintiff's appeal, he contends that Judge Hobgood erred in awarding summary judgment for defendants and in denying his motion for partial summary judgment. The decisive question of the appeal, however, is whether, after Judge Farmer had denied the parties' respective motions for summary judgment, Judge Hobgood had the authority to grant partial summary judgment for plaintiff on the issue of unfair and deceptive trade practices and summary judgment for defendants on all other issues. We find that he did not.

North Carolina adheres to the rule that one superior court judge may not overrule the order of another superior court judge previously made in the same case on the same issue. Carr v. Carbon Corp., 49 N.C.App. 631, 632-33, 272 S.E.2d 374, 376 (1980), disc. review denied, 302 N.C. 217, 276 S.E.2d 914 (1981). In ruling on a motion for summary judgment, the court must decide as a matter of law whether there is a genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law, N.C.Gen.Stat. § 1A-1, Rule 56(c) (1990), and such ruling is determinative as to the issue presented. Carr, 49 N.C.App. at 633, 272 S.E.2d at 376. There may be more than one motion for summary judgment in a lawsuit, but the second motion will be appropriate only if it presents legal issues that are different from those raised in the earlier motion. Id. at 635, 272 S.E.2d at 377. This Court has previously stated that "[t]he conservation of judicial manpower and the prompt disposition of cases are strong arguments against allowing repeated hearings on the same legal issues. The same considerations require that alleged errors of one judge be corrected by appellate review and not by resort to relitigation of the same issue before a different trial judge." Id. at 636, 272 S.E.2d at 378.

In the instant case, by order dated 18 June 1991, Judge Farmer denied both plaintiff's motion for partial summary judgment and defendants' motions for summary judgment. Thereafter, the parties brought the same matter, with no new or additional issues, before Judge Hobgood. Under these circumstances, we are compelled to find that Judge Hobgood had no authority to rule on these motions. It is irrelevant that plaintiff and defendants "stipulated and agreed" that Judge Hobgood could rehear the motions; their consent cannot bestow authority the judge does not otherwise have.

Accordingly, we vacate the 27 April 1992 order of summary judgment and remand this case to Vance County Superior Court.

Vacated and remanded.

EAGLES and LEWIS, JJ., concur.