2 Trial Judges + Same Facts = Opposite Orders - Which Controls? | Speaker Law
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2 Trial Judges + Same Facts = Opposite Orders - Which Controls?

Posted on Friday, May 18, 2018

MCR 2.613(B) sets out the limitations on error-correction by one judge of the orders of another judge and provides the following:


A judgment or order may be set aside or vacated, and a proceeding under a judgment or order may be stayed, only by the judge who entered the judgment or order, unless that judge is absent or unable to act. If the judge who entered the judgment or order is absent or unable to act, an order vacating or setting aside the judgment or order or staying proceedings under the judgment or order may be entered by a judge otherwise empowered to rule in the matter.

Morrissette v Doe(DocketNo. 331941), (a no-fault case) is an interlocutory appeal concerning a procedural issue, namely, a reversal by one judge of the orders of another under MCR 2.613(B)


Defendant State Farm Mutual Automobile Insurance Company (State Farm) appealed by leave the orders of Wayne Circuit Judge Susan L. Hubbard which granted motions to quash State Farm’s re-notice of the taking of depositions on non-parties Lawrence Falzon and Clem Barney. The case was originally assigned to Wayne Circuit Judge Lita M. Popke, but, when she took on the business court docket, her civil docket was reassigned to Judge Hubbard. Judge Popke had ordered Falzon to appear for a deposition, but Judge Hubbard concluded that the deposition was irrelevant and granted Falzon’s motion to quash the taking of his deposition. Judge Hubbard also granted Barney’s motion to quash on the same grounds. Judge Popke had not expressly ordered Barney to appear for a deposition but she had ruled that his role in the case was relevant.

The only question raised on appeal is whether Judge Hubbard had the authority to reverse or rescind Judge Popke’s earlier orders.

The Michigan Court of Appeals (MCOA) said “yes” concluding that Judge Hubbard did indeed possess such authority.

Standard of Review:

The interpretation and application of court rules and the scope of a court’s powers are questions of law subject to de novo (anew) review. A trial court’s decision regarding discovery is reviewed for an abuse of discretion. The motion to quash the taking of Falzon’s deposition is a motion to reconsider Judge Popke’s earlier order granting State Farm’s motion to show cause; in that context, the trial court’s decision to grant the motion is reviewed for an abuse of discretion.


The MCOA began its discussion stating the purpose of MCR 2.613(B) is “to ensure that the motion at hand is before the judge most qualified to rule and to prevent so-called “judge shopping,” which “ ‘would obviously detract from the dignity and stability of judicial action . . . .’ ” Clemons v Detroit Dep’t of Transp, 120 Mich App 363, 364. The court concluded that because the parties had no impact on the re-assignment of Judge Popke’s cases, there was no evidence of “judge shopping.”

Considering the issue of whether a judge can change an order, the MCOA cited MCR 2.119(F)(3) which gives the trial court, until a final order is issued, the discretion to reconsider a prior decision and determine it was mistaken. In this case, the order is not final and thus can be reconsidered.

The MCOA also wrote that because “Judge Popke’s entire civil docket was transferred to another judge or judges, it is reasonable to conclude that Judge Popke was “absent or unable to act,” thus satisfying the requirements of MCR 2.613(B).

The court concluded that Judge Hubbard, as successor to Judge Popke through reassignment, had “authority to revisit and reverse the earlier order issued by Judge Popke because no appellate court had affirmatively ruled on Judge Popke’s order and because the case was still pending with no final order issued.”


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