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Ask Dwayne B. Your Own Question

Dwayne B.
Dwayne B., Attorney
Category: Legal
Satisfied Customers: 27183
Experience:  Began practicing law in 1992
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Does the law of the case doctrine apply to these facts: on

Customer Question

Does the law of the case doctrine apply to these facts:
on 4 occasions the defendants asked inter-alia, for dismissal claiming that the acts of the defendants were immune from the plaintiffs claims by statute. On each occasion the plaintiff was allowed to amend it's claims (the defendants remained the same).

If the assertion of immunity was found the case would have been dismissed each time. On the last motion to dismiss the same judge who allowed the PL to amend, dismissed on a finding of immunity. Can the pl move the trial court successfully to set aside the dismissal based on the law of the case doctrine?
Submitted: 1 year ago.
Category: Legal
Expert:  Dwayne B. replied 1 year ago.

JD 1992 :

Hello, and thank you for contacting Just Answer. I am an expert here and I look forward to assisting you today.

JD 1992 :

Generally, the trial court is allowed to change its ruling during the case.

JD 1992 :

The doctrine known as "law of the case" generally means that ruling made in the trial court and not addressed on appeal become the law of that particular case for all purposes.

JD 1992 :

It does not mean that the trial court can't change its rulings while the case is pending.

JD 1992 :

The website is showing you are offline so I will exit so I can assist other customers. Please feel free to ask any follow up questions that you have in this thread. However, please do not issue a rating until our interaction is complete and all of your questions have been answered.

Customer :

I asked for more information…did you get the follow up? I agree with your answer but I need authority to support it.

JD 1992 :

I didn't get any follow up question. However, there aren't going to be any case precedents because it is the same situation as proving a negative. You aren't likely to have a case citation saying it doesn't because no lawyer is going to make that argument and therefore it doesn't get rules on in court and go up on appeal.

Customer :

I guess you misunderstood me...I want a case to the effect that the doctrine applies at the trial court level (not as a result of a decision on appeal)

Customer :

hi there

JD 1992 :

Hello.

Customer :

in other words a trial judge cannot reverse himself

JD 1992 :

It only applies if the case goes up on appeal, a ruling on law isn't contested, and the case is remanded for a new trial.

Customer :

or another judge at the same level

JD 1992 :

A trial judge can reverse himself. It happens all the time.

JD 1992 :

Another judge who sits in on a case can reverse any decisions that were made by another judge on that case.

JD 1992 :

That is why there are motions for reconsideration.

Customer :

do you have authority for that premise?

JD 1992 :

Although a judge can reverse themselves without a Motion for reconsideration.

JD 1992 :

No, not off hand. It is a basic principle of law. Again, it would be like trying to prove a negative. There is nothing that says they can't do it.

Customer :

what if there is reliance on the prior interpretation...remember that the case was dismissed after three attempts to posit the same legal thoery failed to result in dismissal

JD 1992 :

It doesn't matter. A judge always has the power to reverse themselves so long as they have jurisdiction over a case.

JD 1992 :

As I said, it isn't unusual for it to happen.

Customer :

My friend, I was a litigator for 30 years..thye basic principal is that when an issue is decided in a case it is the law of the case

JD 1992 :

No, that's incorrect.

JD 1992 :

If that were the case then there would not be such a thing as a Motion for Reconsideration.

JD 1992 :

Ever.

Customer :

well I need to see a case that supports that principal

JD 1992 :

You are asking for the impossible. What you would be looking for is a case that said he couldn't do it, and there are no such cases.

JD 1992 :

I can get another expert to look at this and see whether they agree.

JD 1992 :

But I've handled thousands of cases, over a hundred jury trials, in multiple states and that is the law.

Customer :

just so we are on the same page, what would the result be if there was no motion for reconsideration the judge just ruled contrary to how he ruled before that is the issue that I am concerned with

JD 1992 :

Same answer. A judge can overrule their prior ruling sua sponte.

JD 1992 :

A court can change their ruling up until the time they lost jurisdiction.

Customer :

but you can't give me a case that says that?

JD 1992 :

No, just like I can't give you a case that says a judge can overrule an objection, hear the evidence in a case, or set a case for trial.

JD 1992 :

They are inherent parts of a judge's power.

Customer :

not quite the same my friend....

JD 1992 :

In each of those examples what you would have to look for is a case that says they can't do it, and you won't be able to find one.

JD 1992 :

It is exactly the same as far as what an inherent power it.

Customer :

that is what appellate courts say all the time

JD 1992 :

An appellate court doesn't say that a judge can hear evidence.

JD 1992 :

You can run all the case law searches that you would like but you will never find one that says acourt can't change its ruling before they lose jurisdiction.

JD 1992 :

An appellate court may say that the ruling was wrong, but not that the judge can't make it.

Customer :

the issue on appeal would be that the judge decided x the plaintiff relied and went forward based on that decision then the judge reversed himself despite the parties reliance on the prior decision? that is the issue and that it was wrong IS that the judge cant make it

JD 1992 :

I understand your position, it just isn't the law.

Customer :

but you cannot cite me to a case?

JD 1992 :

No, because that isn't an issue that would have gone up on appeal because no lawyer would take that position.

Customer :

which is where the law is found?????

Customer :

really?

JD 1992 :

Some of it.

JD 1992 :

There are also statutes, rules, etc.

Customer :

ok sorry but I do not think you have been helpful.

Customer :

of course

JD 1992 :

I'll opt out because obviously you aren't going to accept the law even though what I am telling you is correct.

Customer :

let me doo some more research on my own and I will let you know if I agree

Customer :

I will hold off till then'

Customer :

thank you

JD 1992 :

That's fine, however you may want to read through the Rules of Civil Procedure with a leaning toward what I am telling you and see if you see a rule that applies.

JD 1992 :

If you think of it logically if the law was as you say there could not be a Motion for Reconsideration.

Customer :

you were incorrect!

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