“I expect this case to have very little impact on our statute of frauds jurisprudence. Given the unusual facts, this Court’s holding is quite factbound.”

Nonetheless, when interviewed for an article for Law.com, Mark Hayes provided the following explanation for why this case was important:

“In this new economy where baby boomers are having to step in to help their children with financial dealings, they may find themselves obliged to contracts that they never agreed to, and then the bank of landlord starts pursuing the parents unfairly.”

The case involved a young man who engaged a law firm to help him with a lawsuit filed against him as a contractor and home builder. The man’s father participated in some of the communications between the firm and the contractor. When the contractor could not pay the legal bill, the firm turned its collection efforts to the father.

The full article is available HERE although the full text is behind a paywall for subscribers only.

The post Decision In Contract Case Picked Up By National Media appeared first on Mark L. Hayes – Appellate Attorney.

Most of an appeal consists of preparing and filing written documents. These include the following:

1) The Record is a subset of the court file, organized in a particular way, and it serves as a reference book for the judges as they consider what matters were argued and presented during the trial phase.

2) The Transcript is a word-by-word memorialization of everything that was said during the relevant hearings or trial.

3) The Briefs are the written arguments submitted to the Court which try to convince the Court of the party’s position.

Often, the Court will resolve the case using only these documents. On occasion, however, the three judges assigned to the case will call the lawyers in for Oral Arguments in downtown Raleigh. The clip above is an example of an oral argument. The record, transcript, and briefs had all already been submitted, but the judges wanted to question the attorneys about their arguments. Oral arguments can be quite the challenge! We have no notice of what the judges will ask, and we have to provide answers that are satisfactory to the judges while also “staying on track” with as much of our pre-planned script of arguments as possible.

The clip is from Munn vs. Rose, a case involving the enforcement of a promissory note debt. For the most part, the case involved questions of contractual interpretation, although it also touched on ancillary issues of estate documents like a will.

The post Briefs and Oral Arguments appeared first on Mark L. Hayes – Appellate Attorney.

Fortunately, the answer is almost always “no.” This may seem counterintuitive; surely if the case goes to an appeal, the legal issues are more complex, and the costs are higher? Ultimately, though, costs come down to one thing: TIME. Trials are extremely time intensive. Discovery can involve a limitless number of requests, answers, interrogatories, etc. It takes a lot of time to draft these documents, and it can take even more time to comply with the ones coming from the opposing party.

Appeals, in contrast, are already a “closed universe.” Everything that will be said has been said, and it can be reduced to a trial transcript. Every exhibit that will be admitted has been admitted; it is all there in the court file. Appeals look backwards only; they assess whether what was actually done at trial was done correctly and in compliance with legal rules and the law.

Appeals therefore do not often require the lawyer-time of a trial. Sure, there are some cases where the trial costs are low and the appeal costs are similar, but this firm more often sees cases on the other extreme, where the appeals costs are perhaps only a tenth of what the trial costs totaled.

Feeling weary of paying legal bills after a long trial? You may be pleasantly surprised that the appeal is a bargain in comparison.

The post Legal Fees At Trial vs. Legal Fees On Appeal appeared first on Mark L. Hayes – Appellate Attorney.

An equally challenging situation arises when the grandparent and parent are in opposition to one another over custody of a child. This firm recently represented a grandparent who obtained primary custody of their grandchild, with the parents having only visitation rights. Today, the Court of Appeals ruled in favor of the grandparent; the full opinion can be read here: Barber v. Driggers. When a grandparent seeks custody, the court does not only consider whether they can offer a better home environment than the parents. Parents have a constitutionally-protected “paramount status.” This status means that the parent has a superior claim to custody over a non-parent, unless the parent does something non-parental.

The most obvious examples involve a parent who has neglected his child. That is what happened in this Barber v. Driggers. The mother not only raised the question of which home was in the child’s best interests, but she also raised the issue of whether she had forfeited her constitutionally-protected paramount status. Fortunately we were able to successfully argue that the evidence supported the findings that the mother had in fact forfeited that status.

Parents can forfeit their paramount status in other ways, however, which do not involve mistreating the child. The most common way to do this is to place a child in a domestic environment in which the child forms a parent-like bond with a non-parent. A parent who moves in with her parents can forfeit her paramount status as to those grandparents, if the grandparents become parent-figures. Likewise, a parent who has a live-in partner can forfeit her paramount status as to that partner, in which case the court will determine custody as if the parent and non-parent have equal claims on the child.

The post Custody Appeal: Grandparents vs. Parent appeared first on Mark L. Hayes – Appellate Attorney.

I came across this phenomenon first when appealing a case involving a condominium owner’s association (similar to a home owner’s association, or HOA). After we won at the Court of Appeals, the association’s trade group lobbied to change the law to preclude the re-use of the argument I had made in our case.

The next time this firm caused a change in the law was perhaps less dramatic, but it actually has a broader reach. As part of almost every appeal, the appellant must have a transcript of the trial or hearing prepared. Transcripts must be prepared by certified court reporters, most of whom are also working as state employees in the courtroom. Traditionally, an appellate attorney will contact the court reporter who was actually in the courtroom for their proceeding and enter into a contract with that reporter for the transcript. The reporter is paid directly and personally; the State does not receive the payment.

As court reporters began increasing their rates dramatically in recent years, I began exploring hiring my own court reporters (who charge less) and having them work from the courtroom recording. This required the court reporter from the courtroom to turn over the recording of the proceeding. To my unpleasant surprise, many court reporters refused! I invoked the public records law and insisted. These court reporters could not hold hostage these recordings, which are of course state property.

The court reporters must have caught wind of this, because shortly after my public records victory, the law was changed to limit (although not entirely) the release of these recordings. No doubt the court reporters enjoy charging whatever they want without competition.

Why do I bring this up? Because transcript costs in large cases can be multiple thousands of dollars — costs that are passed on to the client. Some attorneys might accept these high costs as the “price of business.” At this law firm, we are always working to keep costs as low as possible for the client.

The post Changing The Law & Keeping Costs Down appeared first on Mark L. Hayes – Appellate Attorney.

In North Carolina, equitable distribution cases are conducted in District Court without a jury. The resulting orders, which divide a couple’s assets after a divorce, are still final judgments which can be appealed.

Equitable distribution orders can have significant financial consequences for those involved. A couple’s residence can represent a large amount of value which, if divided unfairly, create a “loss” of tens or hundreds of thousands of dollars. Retirement and investment accounts, business ownership interests, and other real estate can also present significant values which, if divided incorrectly, give the losing party plenty of reason to appeal. Assets like vehicles, jewelry, and equipment may have lower values, but they can add up.

A court can make a number of different types of errors in equitable distribution cases. First, North Carolina has a presumption that the marital estate will be divided evenly, 50-50. If the court orders an uneven division, it must make particular findings from the evidence to support that decision.

Also, North Carolina has a presumption for an “in-kind” division of the assets. Nothing else withstanding, the court should attempt to equalize the value which each party receives by dividing the assets. The court cannot simply distribute most of the assets to one party and then order that party to pay the other party a distributive award (a cash payoff) to even up the values.

The court also must value the assets based on competent evidence. Did the court rely on a Zillow report that your ex-spouse pulled off the internet? Depending on how that report was presented, a court’s reliance on that report may be misplaced. This is just one example of a valuation which might be challenged.

Equitable distribution orders are also often paired with, or even consolidated with, other claims arising from a divorce. Alimony, post-separation support (or PSS), and child support claims may be resolved in the same hearing but result in distinct orders, or the court may resolve all of the claims in one extensive order. If the court does decide to use separate orders, it is important for a party interested in appealing to make sure that he initiates an appeal for each respective order. If the party waits for all of the claims to be resolved, he may discover that the deadline for appealing some of the orders has passed while he was waiting for a final resolution. This firm can handle all of these types of claims, whether separately or bundled together.

We can provide you with a free consultation about whether the types and values of the assets in your case would make an equitable distribution appeal worth investigating. After we are retained, we will perform a more thorough review to evaluate what assets might be recoverable, the odds of that recovery, and the costs of pursuing that recovery through a full appeal. If those dollar figures make sense, we can move forward; if they do not, then we can withdraw the appeal before additional funds are spent. We are here to answer your questions.

The post Can You Appeal An Equitable Distribution Case? appeared first on Mark L. Hayes – Appellate Attorney.

Our client owns three units in a complex governed by an condominium owner’s association (which functions very similarly to a home owner’s association, or HOA), and he had a dispute with the association about dues and the association’s duty to make repairs to some flood damage. The association eventually filed a foreclosure action against him for failure to pay his dues. On appeal, we had that foreclosure order reversed.

For procedural reasons too complicated to explain in a short blog post, the case was sent back to the Superior Court for a recalculation of our client’s possible liabilities. Given the ledger, it seems entirely perfunctory; the math just did not add up to justify a foreclosure. Nonetheless, to our surprise, the Superior Court entered a new foreclosure order which effectively repeated the errors it had made the first time.

We appealed again, and today we received our second winning opinion in this case. You can read about it HERE. The end of the opinion hints that this repeated foreclosure action, in the face of math that just does not add up, could result in the imposition of sanctions and attorneys fees against the association. This would be a great result for the “little man” who has simply refused to fold, despite the unrelenting litigation directed at him by the association and its law firm. Kudos to our client! We were glad to help.

The post Winning Appeal: Foreclosure appeared first on Mark L. Hayes – Appellate Attorney.

This has certainly been true for me as I practice appellate law. I know from talking to prospective clients that appellate lawyers can be few and far between; I’ve spoken with many people who initially assumed that they needed an attorney from their own town or county, but could not find anyone at all. Only when they broadened their search did they locate my practice. Folks don’t realize that all appeals are handled centrally in Raleigh, and so an appellate lawyer can handle a case originating from most anywhere across the state.

Those of us who practice appellate law, therefore, tend to know one another. Maintaining professionalism and basic courtesy enables us to oppose one another on one day and work together the next. I pride myself on the fact that on multiple occasions, immediately after finishing a case opposite another attorney, that attorney has asked me to assist him or her on their next case. This is probably the lawyer version of “it takes one to know one.” But these referrals don’t only mean that the other attorneys respect my legal ability. It also means that they have found me to be an honorable and trustworthy person.

Nothing makes me appreciate these professional relationships, however, more than an attorney who does not exhibit courtesy and accommodation. This happened to me recently — an attorney whose name I have known for years, and who I’m sure has a wealth of knowledge about legal matters, made an appearance for the other side. He has turned out to be particular, rude, and demanding. When I’m too busy to take a case, I’ll often refer the client out to another appellate attorney. After this experience, I’ll never do that with this particular person. In the end, his lack of professionalism is only hurting his own practice. That wouldn’t be so unfair, except for the fact that I can’t imagine he’s any nicer to his own clients. My advice for any prospective client is to check to see what an attorney’s reputation is beyond just their legal skills. An ounce of niceness will not only make the representation more pleasant, but it will probably mean that your attorney can work more effectively with his peers.

The post The Power Of Professionalism appeared first on Mark L. Hayes – Appellate Attorney.

This is obviously a vast topic, but I wanted to highlight a couple of points which are well articulated in Linker v. Linker v. Boling, 291 N.C. App. 343, 895 S.E.2d 620 (2023). First, there is no “automatic” transfer of custody from the deceased parent to the surviving parent. Certainly the surviving parent has a “paramount status” which will give him or her the inside track on taking over custody, but that position is not unassailable. Even unrelated parties can have the standing to pursue custody of the child over the surviving parent, in some circumstances. Further, grandparents have particular status in these situations to obtain “visitation” or custody (these terms are sometimes synonymous and sometimes not). Their status is not as high as that of the parent (usually) but they do have options that non-grandparents do not.

Finally, some of these alternatives depend on the existence of a pending custody action, which means that the dying parent may wish to initiate a custody proceeding even if she or she knows that she will not survive to see it to the end. Grandparents in particular can intervene more easily into a pending case than they can if no case has been filed. Any parent in this situation should therefore seriously consider consulting with an attorney before they pass away.

Regardless of whether your case involves a dying parent, though, the issue of grandparents and parents fighting for custody of a child is not a rare one. If you are the party to such a custody action and receive a custody order that you are dissatisfied with, please reach out to this firm about an appeal. We have dealt with this sort of case on multiple occasions.

The post Custody Appeals: Grandparent Rights, Visitation, And…. Death appeared first on Mark L. Hayes – Appellate Attorney.

And, it’s certainly true that sometimes trial lawyers don’t go the extra mile. Trial work can be overwhelming, which means that sometimes a case doesn’t get a lawyer’s full attention, particularly when that lawyer has a lot of other clients. In handling hundreds of appeals, I’ve read hundreds of trial transcripts. Sometimes a lawyer’s lack of effort jumps off the page, so yes, it does happen.

On the other hand, you’ve no doubt heard the expression “don’t throw good money after bad.” Yes, you want an attorney who will go to the mat for you and who will leave no stone unturned. I absolutely pride myself on that level of effort. Nonetheless, sometimes a case just does not have merit — or, the chances of success are just terribly low. At that point, an attorney’s tenacity on your behalf can actually start to work against you, because he is “fighting” for you (which means he’s billing you) for work that won’t likely get a good result.

At our firm, we pride ourselves on giving the clients an honest assessment of their case. If the chances of success don’t justify the full appeal, then we might recommend that you drop it and save your money. For example, in a recent criminal case where we had estimated the total life-of-case costs as between $15,000 and $20,000, we reached that point after about $5,000 has been expended. At that point, I had reviewed the transcript and court file, done research on possible topics, and come up with a list of issues. The evaluation required that first $5,000 in fees and costs, but after it came up largely empty, the client did not waste more money on a lost cause. I refunded the rest of his initial retainer, and we dropped the appeal. In the end, he at least had the peace of mind that nothing could be done for him.

The post Costs, And Sometimes The Best Option Is . . . To Give Up appeared first on Mark L. Hayes – Appellate Attorney.