North Shore, Inc. v. Wakefield, 542 N.W.2d 725, 727 (N.D. 1996). Our decision in Paulson v. Meinke, 352 N.W.2d 191, 194 (N.D. 1984), is controlling. We ruled in Meinke 352 N.W.2d at 193-194, a successor judge erred by amending the findings and conclusions of a retiring judge based upon a reading of the transcript, without giving the parties an opportunity to retry the case:

e is severely limited, essentially because a successor judge is in no position to pass on the credibility of witnesses whom he has not seen.” Daru v. Martin, 89 Ariz. 373, 363 P.2d 61, 64 (1961) ; see alsoConnelly v. United States, 249 F.2d 576, 580 (8th Cir. 1957) (recognizing that, where the credibility of the government's witnesses was a serious issue in a criminal case, a successor judge should not rule on a motion for new trial); Anderson v. Dewey, 82 Idaho 173, 350 P.2d 734, 737 (1960) (holding that a successor judge may consider a motion for new trial in a case tried to the court where she “is not required to weigh conflicting evidence or pass upon the credibility of witnesses, but can resolve such issues ... upon evidence which is not materially in conflict”); Jackson v. Commonwealth, 445 S.W.2d 835, 838–39 (Ky.1969) (successor judge could rule on criminal defendant's motion for new trial because the grounds raised “were all matters which could be determined from the record”); Paulson v. Meinke, 352 N.W.2d 191, 193–94 (N.D.1984) (adopting Anderson v. Dewey );Ruggieri v. Beauregard, 110 R.I. 197, 291 A.2d 413, 415 (1972) (holding that the applicable rule of procedure “vests a successor judge with judicial discretion to review the jury verdict on a motion for new trial on the ground that such verdict was contrary to the weight of the evidence where the record clearly discloses that no question of the credibility of the witnesses or the weight to be given to their testimony will require resolution by him”); cf.Hunter v. Union State Bank, 505 N.W.2d 172, 175 (Iowa 1993) (successor judge could decide case tried to previous judge because “credibility was not that crucial”). But seePinecrest, LLC v. Harris, 40 So.3d 557, 563 (Miss.

"The trial judge who makes a decision involving a disputed question of fact should have the opportunity to see and hear the witnesses and determine their credibility." Paulson v. Meinke, 352 N.W.2d 191, 193 (N.D. 1984). "In cases tried without a jury, the general rule is that a party litigant is entitled to a decision on the facts by a judge who heard and saw the witnesses, and a deprivation of that right is a denial of due process." Id. However, N.D.R.Civ.P. 63 allows a successor judge to make findings and conclusions on an existing or supplemented record:

In Schultz, 372 N.W.2d at 892, we also said an agency may even reject a hearing officer's recommendation on findings of the credibility of contradictory witnesses. Compare Paulson v. Meinke, 352 N.W.2d 191, 193-94 (N.D. 1984) (under NDRCivP 63, if successor judge is not satisfied with findings, conclusions and decision of predecessor judge, successor judge is limited to granting new trial); Holzer v. Jochim, 557 N.W.2d 57, 58-59 (N.D. 1996) (successor judge abused discretion in redeciding the merits of case tried before predecessor judge without affording the parties an opportunity to retry case). As Holzer at 59 explained, a major tenet of due process anticipates that a party receive adequate notice and fair opportunity to be heard by the decision maker.

Generally in cases tried to the court, due process entitles a litigant to a decision on the facts by a judge who has heard the evidence. European Beverage, Inc. v. Superior Ct., 43 Cal.App.4th 1211, 51 Cal.Rptr.2d 147, 148 (1996); Stevens v. Hartford Accident Indem. Co., 29 Conn. App. 378, 615 A.2d 507, 511 (1992); Anderson v. Dewey, 82 Idaho 173, 350 P.2d 734, 737 (1960); People v. Lupe, 405 Ill. 66, 89 N.E.2d 824, 826 (1950); Paulson v. Meinke, 352 N.W.2d 191, 193 (N.D. 1984); see In re Buchman's Estate, 123 Cal.App.2d 546, 267 P.2d 73, 84 (1954) ("The power vested in a judge is to hear and determine, not to determine without hearing."). Otherwise, the litigant is deprived of a meaningful hearing.

We do not reach the issue raised by John concerning Judge Jorgensen's compliance with Rule 63, N.D.R.Civ.P., because of the stipulation which governs the actions of Judge Jorgensen in his retrial of the case. We, therefore, conclude Paulson v. Meinke, 352 N.W.2d 191 (N.D. 1984) does not apply to this case. We note that the Explanatory Note to Rule 63, N.D.R.Civ.P. (1994) and the Advisory Committee Notes to Rule 63, F.R.Civ.P. (1991) state that in order for a successor judge to certify familiarity with the record and determine the case can be completed without prejudice to the parties "a transcript or a videotape of the proceedings" must be available to the substitute judge.

A litigant is generally entitled to a decision on the facts by a judge who has heard and seen the witnesses. Paulson v. Meinke, 352 N.W.2d 191 (N.D. 1984). Still, the rules of procedure allow some latitude in recalling witnesses at the new trial: [T]he successor judge shall at the request of a party recall any witness whose testimony is material and disputed and who is available to testify again without undue burden.

E.g., Faris v. Rothenberg, 648 P.2d 1089, 1092 (Colo. 1982); Paulson v. Meinke, 352 N.W.2d 191, 193-94 (N.D. 1984). One commentator has suggested that a successor judge consider four factors: 1) the point to which the trial has proceeded; 2) the complexity of the trial; 3) the importance of witness credibility; and 4) the parties' good faith.

Because the case is being remanded for a retrial of all factual issues, we deem it appropriate to grant the request. See Paulson v. Meinke, 352 N.W.2d 191 (N.D. 1984). Therefore, we remand the case for a new trial before a judge appointed under Administrative Rule 15.

Dean's post-trial motions were denied by the successor judge, Honorable Hal Stutsman. Dean Ostby appeals. If a trial judge is unable to act on post-trial motions because of death, disability or other cause, a successor judge may act. NDRCivP 63. Still, the power of a successor judge to review evidence of disputed facts is circumscribed. Paulson v. Meinke, 352 N.W.2d 191 (N.D. 1984). If the successor judge "is not satisfied with the findings, conclusions and decree of his predecessor, and thinks [they] should be vacated or modified, but cannot do so because he did not see and hear the witnesses, then he is limited to the granting of a new trial." Paulson at 193, quoting an Idaho decision.