{ "id": 8549190, "name": "TRIDYN INDUSTRIES, INC. v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY", "name_abbreviation": "Tridyn Industries, Inc. v. American Mutual Liability Insurance", "decision_date": "1980-04-01", "docket_number": "No. 7918SC791", "first_page": "91", "last_page": "95", "citations": [ { "type": "official", "cite": "46 N.C. App. 91" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "251 S.E. 2d 443", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "year": 1979, "opinion_index": -1 }, { "cite": "296 N.C. 486", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8567731 ], "weight": 2, "year": 1979, "opinion_index": -1, "case_paths": [ "/nc/296/0486-01" ] }, { "cite": "133 S.E. 2d 206", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1963, "opinion_index": 0 }, { "cite": "260 N.C. 502", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575340 ], "year": 1963, "opinion_index": 0, "case_paths": [ "/nc/260/0502-01" ] }, { "cite": "244 S.E. 2d 156", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "294 N.C. 739", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8574770, 8574746, 8574710, 8574726 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc/294/0739-04", "/nc/294/0739-03", "/nc/294/0739-01", "/nc/294/0739-02" ] }, { "cite": "240 S.E. 2d 497", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "35 N.C. App. 150", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547843 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/nc-app/35/0150-01" ] }, { "cite": "35 S.E. 2d 893", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1945, "opinion_index": 0 }, { "cite": "225 N.C. 639", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8615514 ], "year": 1945, "opinion_index": 0, "case_paths": [ "/nc/225/0639-01" ] }, { "cite": "173 S.E. 2d 909", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "276 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562575 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/nc/276/0556-01" ] }, { "cite": "169 S.E. 2d 193", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "pin_cites": [ { "page": "199" } ], "opinion_index": 0 }, { "cite": "5 N.C. App. 684", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8553209 ], "year": 1969, "pin_cites": [ { "page": "693" } ], "opinion_index": 0, "case_paths": [ "/nc-app/5/0684-01" ] }, { "cite": "237 S.E. 2d 318", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "34 N.C. App. 78", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8547152 ], "year": 1977, "opinion_index": 0, "case_paths": [ "/nc-app/34/0078-01" ] }, { "cite": "189 S.E. 2d 484", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "pin_cites": [ { "page": "488" } ], "opinion_index": 0 }, { "cite": "281 N.C. 496", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575351 ], "year": 1972, "pin_cites": [ { "page": "501" } ], "opinion_index": 0, "case_paths": [ "/nc/281/0496-01" ] } ], "analysis": { "cardinality": 539, "char_count": 10412, "ocr_confidence": 0.811, "pagerank": { "raw": 7.146664538989408e-08, "percentile": 0.42848289610707035 }, "sha256": "107ff406fd263cf2d1e4c50eb0f0480db55bd81e258336dff9dc5eadf18cef63", "simhash": "1:ddc04b6d102a1d4f", "word_count": 1727 }, "last_updated": "2023-07-14T21:32:37.131990+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges WEBB and WELLS concur." ], "parties": [ "TRIDYN INDUSTRIES, INC. v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY" ], "opinions": [ { "text": "HEDRICK, Judge.\nBased on three exceptions duly noted in the record, plaintiff assigns as error Judge Collier\u2019s Order dated 11 April 1979, allowing the defendant to amend its Answer to reassert the defense of lack of timely notice, and Judge Mills\u2019 Judgment of 29 June 1979, allowing the defendant\u2019s motion for summary judgment. We agree with plaintiff, for the reasons to follow, that both the Order and the Judgment were erroneously entered.\nFirst, the actions of Judge Collier and Judge Mills contravene the well-established rule in this State that \u201cno appeal lies from one Superior Court judge to another; . . . and that ordinarily one judge may not modify, overrule, or change the judgment of another Superior Court judge previously made in the same action.\u201d Calloway v. Ford Motor Co., 281 N.C. 496, 501, 189 S.E. 2d 484, 488 (1972); 3 Strong\u2019s N.C. Index 3d, Courts \u00a7 9 (1976). In the matter before us, Judge Collier\u2019s Order allowing the defendant to amend its answer results in the modification of the Consent Order entered by Judge Walker on 16 May 1977. Furthermore, his action paved the way for Judge Mills to overrule the summary judgment entered by Judge Wood on 3 May 1978. While a judge does have the power to modify interlocutory orders of another judge upon a sufficient showing of changed conditions, Strong\u2019s, supra at \u00a7 9.1; accord, State v. Turner, 34 N.C. App. 78, 237 S.E. 2d 318 (1977), the Consent Order entered in this case was a final adjudication that the defense of failure of notice would not be available to defendant in the subsequent determination of the issue of its liability, if any, to plaintiff. Equally as finally adjudicated and settled was the essential issue of liability when Judge Wood entered summary judgment for the plaintiff as to that issue, despite the fact that the question of damages remained to be tried. Although it is true that the allowance of amendments to pleadings \u201cis an inherent and statutory power of superior courts which they may ordinarily exercise at their discretion\u201d, N. C. State Highway Commission v. Asheville School, Inc., 5 N.C. App. 684, 693, 169 S.E. 2d 193, 199 (1969), aff\u2019d., 276 N.C. 556, 173 S.E. 2d 909 (1970); G.S. \u00a7 1A-1, Rule 15(a), the power is not unlimited. We are of the opinion and so hold that the power may not be exercised so as to upset or to destroy the efficacy of a validly entered and jurisdictionally sound consent decree.\nSecondly, we think Judge Collier was without authority to allow the amendment to defendant\u2019s answer for the reason that the Consent Order of 16 May 1977, which was rendered feckless by the amendment, was and remains the binding contract of the parties, entered into with the approval and sanction of the court, which thereafter could not be modified without the parties\u2019 consent except upon a showing of fraud or mistake. 2 McIntosh, N.C. Practice and Procedure 2d, Consent Judgment \u00a7 1684 (1956); King v. King, 225 N.C. 639, 35 S.E. 2d 893 (1945); N. C. State Highway Commission v. Asheville School, Inc., supra. See also 8 Strong\u2019s N.C. Index 3d, Judgments \u00a7 10 (1977). Generally, a judgment or order entered by consent is conclusive on the matters it determines and precludes the parties \u201cfrom maintaining an action upon any claim within the scope of [their] compromise and settlement, although such claim was not in fact litigated in the suit in which the judgment or decree was rendered.\u201d 47 Am. Jur. 2d, Judgments \u00a7\u00a7 1091, 1092 at 149 (1969). The defendant in this case has neither alleged nor attempted to demonstrate that fraud or mistake induced it to enter into the consent order wherein it, in effect, agreed to forego its defense of the suit on the ground that plaintiff had failed to give timely notice. Rather, it argues that a \u201cclarification\u201d of the law respecting the capacity to plead both non-coverage and failure of notice resulted from the decision of this Court in Taylor v. Royal Globe Insurance Co., 35 N.C. App. 150, 240 S.E. 2d 497, cert. denied, 294 N.C. 739, 244 S.E. 2d 156 (1978), handed down after it entered into the consent decree. Defendant contends that the resulting \u201cclarification\u201d represents a sufficient change of conditions for Judge Collier to allow the amendment.\nThis argument misses the mark by a wide margin. First, although we express no opinion on whether the decision in Taylor clarified the particular point of law, we emphasize our opinion that the consent order was a final and binding decree, and, therefore, the rules of law regarding the existence of changed conditions so as to permit one Superior Court judge to overrule interlocutory orders of another judge, have no application. Moreover, neither a subsequent change in the law, nor counsel\u2019s misconstruction of the law at the time the consent order was entered, is a ground for setting aside the order. See Roberson v. Penland, 260 N.C. 502, 133 S.E. 2d 206 (1963).\nWhat we have in this case is the defendant\u2019s attempt, by seeking to amend its pleading, to resurrect and redetermine a matter which it agreed to remove from consideration. Furthermore, its success with Judge Collier thereafter allowed it to reopen for relitigation the issue of liability which had already gone to judgment in one Superior Court. Under the circumstances of this case, that judgment was properly reviewable only on appeal, after the question of damages had been tried, and not by another trial judge.\nIn our opinion, the inviolable principles of practice and procedure to which we have referred throughout this decision preclude defendant from escaping the effect of the Consent Order entered by Judge Walker on 16 May 1977. The summary judgment entered for plaintiff on the issue of liability, dated 3 May 1978, stands.\nThe result is: The Order of Judge Collier dated 11 April 1979 allowing defendant to amend its Answer is vacated. The summary judgment entered for defendant by Judge Mills on 29 June 1979 is likewise vacated, and the cause is remanded to the Superior Court for further proceedings in accordance with this Opinion.\nVacated and remanded.\nJudges WEBB and WELLS concur.", "type": "majority", "author": "HEDRICK, Judge." } ], "attorneys": [ "Turner, Enochs, Foster & Burnley, by E. Thomas Watson, for the plaintiff appellant.", "Smith, Moore, Smith, Schell & Hunter, by Bynum M. Hunter and Michael E. Kelly, for the defendant appellee." ], "corrections": "", "head_matter": "TRIDYN INDUSTRIES, INC. v. AMERICAN MUTUAL LIABILITY INSURANCE COMPANY\nNo. 7918SC791\n(Filed 1 April 1980)\n1. Courts \u00a7 9.3\u2014 amendment of pleadings \u2014 consent judgment affected\nThe power of a superior court to allow an amendment to pleadings may not be exercised so as to upset or destroy the efficacy of a validly entered and jurisdictionally sound consent decree.\n2. Courts \u00a7 9.3; Judgments \u00a7 8\u2014 consent judgment \u2014striking defense \u2014 amendment to reassert defense improperly allowed\nA superior court judge erred in allowing defendant to amend its answer to reassert the defense of lack of timely notice of a claim, which plaintiff wanted defendant insurer to defend and pay, where the parties had earlier agreed to a consent judgment striking the late notice defense, since the judge contravened the rule that one superior court judge may not modify, overrule, or change the judgment of another superior court judge in the same action, and since the consent judgment was the binding contract of the parties which could not be modified without the parties\u2019 consent.\nAPPEAL by plaintiff from Mills, Judge. Judgment entered 29 June 1979 in Superior Court, GUILFORD County. Heard in the Court of Appeals on 4 March 1980.\nPlaintiff originally instituted this suit by the filing of an amended complaint on 17 November 1975 wherein it alleged that defendant had issued it a comprehensive general liability insurance policy on 10 December 1971, but had subsequently failed to defend it against and thereafter to pay certain claims made against plaintiff by two construction companies to whom it had allegedly sold defective products. [A more complete statement of the facts involved in the underlying claims is set out in the opinion of our Supreme Court in an earlier appeal of this case, reported at 296 N.C. 486, 251 S.E. 2d 443 (1979)]. The defendant answered the original complaint and sought to assert, inter alia, two alternative defenses to the action: (1) The policy did not provide coverage for the claims made against plaintiff, or (2) if it did, plaintiff failed to give defendant timely notice of the claims.\nOn 22 March 1977 plaintiff moved for a \u201cPartial Summary Judgment\u201d as to defendant\u2019s assertion of plaintiff\u2019s failure to give timely notice as a defense, on the ground that the defendant had waived the late notice defense by otherwise denying coverage. Thereafter, the parties agreed that the late notice defense should be stricken, and a Consent Order striking that portion of defendant\u2019s answer was entered on 16 May 1977.\nBoth plaintiff and defendant then moved for summary judgment on the issue of liability. By a judgment dated 3 May 1978, the trial court, after concluding that the policy did cover the claims against plaintiff, allowed plaintiff\u2019s motion for partial summary judgment on the issue of liability, denied defendant\u2019s motion, and ordered a further proceeding to determine \u201cthe amount of damages suffered by plaintiff by reason of reasonable attorneys\u2019 fees, costs, expenses, and judgment and settlement amounts incurred and paid by plaintiff\u201d resulting from the claims brought against plaintiff by the construction companies.\nThe defendant appealed. This Court dismissed the appeal, and the Supreme Court, per Justice Exum, affirmed, holding that a partial summary judgment on the issue of liability alone, which reserved for trial the issue of damages, was not a final judgment and therefore was not immediately appealable. Tridyn Industries, Inc. v. American Mutual Insurance Co., 296 N.C. 486, 251 S.E. 2d 443 (1979).\nUpon the dismissal of its appeal, the defendant on 26 March 1979 moved to amend its Answer in order to reassert its defense of late notice. On 11 April 1979 Judge Collier entered an Order allowing the motion to amend. Plaintiff opposed the motion and duly excepted to the entry of the Order allowing it.\nDefendant then moved for summary judgment on the issue of liability based on plaintiff\u2019s failure to give timely notice and filed affidavits in support thereof. On 29 June 1979 Judge Mills granted the motion and entered summary judgment for defendant. Plaintiff appealed.\nTurner, Enochs, Foster & Burnley, by E. Thomas Watson, for the plaintiff appellant.\nSmith, Moore, Smith, Schell & Hunter, by Bynum M. Hunter and Michael E. Kelly, for the defendant appellee." }, "file_name": "0091-01", "first_page_order": 119, "last_page_order": 123 }