In June 2016, after being in foster care for several months, a child of Mr. Hayes’ client was determined by the State to be abused and neglected. The trial court entered an order establishing a permanent plan for the child, with adoption as the first choice and custody/guardianship as the second choice. After this order, Mr. Hayes’ client filed a timely notice to preserve the right to appeal. A little over a year later, the trial court entered into an order terminating Mr. Hayes’ client’s parental rights based on a finding of neglect and willful failure to make reasonable progress in correcting the conditions leading to the removal of the child from the home.

The Court of Appeals agreed with Mr. Hayes that the trial court erred in eliminating reunification as a permanent plan for his client’s child without making the necessary findings under the statute. One of the statutory sections that would allow for termination of reunification did not apply to Mr. Hayes’ client in this case, so the trial court had to demonstrate that a plan to reunite Mr. Hayes’ client with her child “clearly would be unsuccessful or would be inconsistent with the juvenile’s health or safety.” N.C. Gen. Stat. § 7B-906.2(b) (2017). On appeal, the Court found the trial court did not make the necessary findings under that statutory section, and similarly that it did not make the requisite written findings based on the four-part inquiry of another section of the statute. Because the trial court did not make “any of the findings” required to take away family reunification as an option, the Court of Appeals vacated the trial court’s order against Mr. Hayes’ client. In re L.A.G., No. COA18-283 at 8.

Please been advised, however, that success in this case should not be construed as an indication this firm will be successful in any given future case, and you should consult with a license attorney to determine the viability of your own case.

The post Winning Appeal: In Re L.A.G. appeared first on Mark L. Hayes – Appellate Attorney.

After entering into a contract for the transcript, a court reporter or other designated transcriptionist creates the transcript from notes and audio recorded during the proceedings. However, sometimes the transcript may be incomplete or missing key parts, stemming from either human or technological error, which can deprive the moving party of meaningful appellate review.

For instance, in State v. Yates, No. COA18-158 (N.C. Ct. App. Oct. 16, 2018), Mark L. Hayes won a new trial for a client on appeal whose right to a meaningful appeal was denied after the recording equipment at trial malfunctioned, preventing the court reporter from producing a full verbatim transcript of the proceeding. There, the North Carolina Court of Appeals applied a three-part test to determine whether the right to a meaningful appeal was lost, ultimately holding the right had been denied and Mr. Hayes’ client was entitled to a new trial. However, each legal case has its unique set of factors considered in a judgment, and you should consult with a licensed attorney to determine the viability of your appeal.

Retaining seasoned appellate counsel to move forward with your case helps to ensure that each part of your appeal occurs smoothly. Mr. Hayes has worked on nearly two hundred appellate cases at all levels and also has experience in providing consultation services to trial attorneys.

To aid in the understanding of the appellate process, the Law Office of Mark L. Hayes has composed an informative, one-hour Continuing Legal Education video, approved by the North Carolina State Bar Continuing Legal Education department, titled “Appeals In North Carolina: First Steps.” The video presentation, a link to which may be found below, grants an overview of the appeals process in North Carolina, useful for both practicing attorneys and non-attorneys who simply want to understand the process. The CLE explores how to determine whether a case is ripe for appeal, if proper notice has been given, and how to obtain the transcript for appeal. Within each of these three crucial categories, Mr. Hayes discusses special considerations and details, which could derail the appeal if they are not handled properly.  

The post First Steps in an Appeal: The Transcript appeared first on Mark L. Hayes – Appellate Attorney.

The Law Office of Mark L. Hayes is in a unique position as one of a small number of firms in North Carolina that practices solely in appellate law. Mr. Hayes has represented clients on appeal in nearly two hundred cases at all levels, including the North Carolina Supreme Court and the Supreme Court of the United States. With years of experience in appellate matters, Mr. Hayes is versed in applying and arguing under the different standards of review used in North Carolina and their respective analyses.

The post Standards of Review: Plain Error appeared first on Mark L. Hayes – Appellate Attorney.

On appeal, Mr. Hayes was unable to get the full transcript of his client’s trial court proceedings due to a malfunction with the recording equipment which left out an important chunk of the trial. Mr. Hayes argued that his client was denied a meaningful appeal due to the missing portion of the transcript and the trial court erred in denying his client’s motions to dismiss for insufficiency of the evidence. To first determine whether the right to a meaningful appeal was denied, the Court applied a three-part test:

(1) has the defendant “made sufficient efforts to reconstruct the [proceedings] in the absence of a transcript?”;

(2) have those “reconstruction efforts produced an adequate alternative to a verbatim transcript—that is, one that would fulfill the same functions as a transcript . . . ?”; and

(3) “whether the lack of an adequate alternative to a verbatim transcript of the [proceedings] served to deny any [defendant] meaningful appellate review such that a new [trial] is required.”

First, Mr. Hayes argued sufficient efforts were made to reconstruct the missing portion of the transcript by preparing a narrative form script of the missing time, but that was still an inadequate replacement. The Court agreed with Mr. Hayes on the first prong, for Mr. Hayes contacted the presiding trial judge, the prosecutor, the court reporter, and defense attorneys requesting their recollection of the portion of the trial missing from the transcript. None of those parties responded and Mr. Hayes again attempted to obtain a response which he never received. On the first prong, the Court found Mr. Hayes’ repeated efforts to pursue the content of the missing transcript was “better practice” necessary to satisfy the burden of reconstruction. Yates, No. COA 18-158 at 8.

The Court also found for Mr. Hayes’ client on the second prong in that the reconstruction efforts did not produce an alternative which would function as if the transcript were not missing parts. The failures to communicate by trial counsel, et. al. resulted in Mr. Hayes being unable to produce a reconstructed alternative to the official transcript.  

Lastly, Mr. Hayes argued, and the Court agreed, that the incomplete transcript denied his client meaningful appellate review because the missing part included cross-examination of the alleged victim. Mr. Hayes argued that without that testimony, the State could not present a prima facie case. Mr. Hayes also raised multiple issues regarding pretrial motions, testimony, and closing arguments which could not be pursued on appeal without the missing transcript content. The State argued because Mr. Hayes’ client was unable to identify specific issues, his argument was speculative. However, the Court found Mr. Hayes’ client had demonstrated he was prejudiced because he was unable to identify those specific errors due to the lack of the full transcript and awarded Mr. Hayes’ client a new trial.

Please been advised, however, that success in this case should not be construed as an indication this firm will be successful in any given future case, and you should consult with a license attorney to determine the viability of your own case.

The post Winning Appeal: State v. Yates appeared first on Mark L. Hayes – Appellate Attorney.

North Carolina Rule of Appellate Procedure Rule 3 mandates the notice of appeal be filed “with the clerk of superior court.” Failure to adhere to this rule will result in dismissal of the appeal, only reviewable by petition for writ of certiorari. In North Carolina, “’our Courts have frequently observed that a writ of certiorari is an extraordinary remedial writ.’” Ehrenhaus v. Baker, 243 N.C. App. 17, 32, 776 S.E.2d 699, 709 (2015) (quoting Branch Banking and Trust Co. v. Peacock Farm, Inc.,     N.C. App.    ,    , 772 S.E.2d 495, 500 (2015)).

Next, consider North Carolina Rule of Appellate Procedure Rule 4, which states that a party to a criminal case may appeal orally at trial or by filing a notice of appeal with the Clerk of the Superior Court. In contrast, under North Carolina Rule of Appellate Procedure Rule 3, governing appeals in civil cases, oral notice of appeal is not allowed.  

Even if a party looking to appeal recognizes how and where their notice of appeal must be filed, there are many different issues of timing, content, and service, to name a few considerations that must be strictly followed for a viable appeal. Attorneys new to the appellate process may not be aware of each element of those requirements.  

To aid in the understanding of the appellate process, the Law Office of Mark L. Hayes has composed an informative, one-hour Continuing Legal Education video, approved by the North Carolina State Bar Continuing Legal Education department, titled “Appeals In North Carolina: First Steps.” The video presentation, a link to which may be found below, grants an overview of the appeals process in North Carolina, useful for both practicing attorneys and non-attorneys who simply want to understand the process. The CLE explores how to determine whether a case is ripe for appeal, if proper notice has been given, and how to obtain the transcript for appeal. Within each of these three crucial categories, Mr. Hayes discusses special considerations and details, which could derail the appeal if they are not handled properly.  

The post First Steps in an Appeal: Notice of Appeal appeared first on Mark L. Hayes – Appellate Attorney.

At trial, Angram involved a man who withdrew a large sum of money from his credit union and was later robbed at gunpoint when he returned home.  The State’s theory for the robbery was that one of the credit union employees, who had a child with Mr. Hayes’ client’s brother, called Mr. Hayes’ client to inform him of the withdrawal and the victim’s address, and that Mr. Hayes’ client then informed and encouraged his brother to rob the victim at gunpoint. At trial, Mr. Hayes’ client was charged with, but not convicted of, conspiracy to commit robbery with a dangerous weapon. Mr. Hayes’ client was however convicted of robbery with a dangerous weapon based upon a theory presented by the State of aiding and abetting his brother, who in a separate, earlier trial, had been convicted of the robbery.

The State’s aiding and abetting jury instruction relied on two theories: either Mr. Hayes’ client communicated with his brother or Mr. Hayes’ client drove his brother to the victim’s house. The State’s aiding and abetting theory was propped up only by the basis of the underlying relationship of Mr. Hayes’ client, Mr. Hayes’ client’s brother, and the credit union employee. However, all four employees working the day of the robbery used their cell phones while the victim was at the bank and all were questioned by law enforcement. Additionally, the credit union employee implicated here did not personally assist the victim.

Mr. Hayes argued that the two theories underlying the instruction for aiding and abetting were not based on any substantive evidence and the State failed to present sufficient evidence to support a valid inference of either theory. The Court of Appeals agreed with Mr. Hayes, reasoning that “[t]he State’s argument requires not just one but at least three layers of inference built solely on knowledge of [the victim’s] transaction and [the credit union employee’s] phone call with the father of her child.” Angram, No. COA19-151 at 9 (emphasis in original). In finding for Mr. Hayes’ client, the Court pointed out that the State attempted to rely on a detective’s interview of Mr. Hayes’ client’s brother which was not entered into evidence, but in fact used only for the purposes of impeachment, which cannot be used to support a substantive claim. Additionally, the Court could not determine from the transcript of the trial court if the credit union employee actually called Mr. Hayes’ client herself, despite the State wanting it to make that assumption.

The Court found the State’s reliance on the relationship of Mr. Hayes’ client, Mr. Hayes’ client’s brother, and the credit union employee to show that Mr. Hayes’ client was allegedly involved in the aiding and abetting was rooted in speculation. Further, because the detective’s interview was not admitted for substantive purposes, there was no substantial evidence to support Mr. Hayes’ client’s conviction of aiding and abetting robbery with a dangerous weapon. The Court thus found that the trial court should have allowed Mr. Hayes’ client’s motion to dismiss.

Please been advised, however, that success in this case should not be construed as an indication this firm will be successful in any given future case, and you should consult with a license attorney to determine the viability of your own case.

The post Winning Appeal: State v Angram appeared first on Mark L. Hayes – Appellate Attorney.

Recently we wrote about virtual oral arguments during this unusual COVID period:

Oral Argument During COVID

Today, the N.C. Supreme Court issued its decision in that case. In a unanimous per curiam opinion, the N.C. Supreme Court affirmed the N.C. Court of Appeals.

While the road was a long one for the client in this case, it was at least a victorious one! We had to win at the N.C. Court of Appeals and then win again at the N.C. Supreme Court. The case, In Re JTC, involved custody of a minor. The Respondent-Father appealed a District Court order which terminated his parental rights. This firm represented Petitioner-Mother in defending that order on appeal. With the termination order upheld, the child’s stepfather will be free to adopt the child.

The post Oral Arguments During COVID – UPDATE appeared first on Mark L. Hayes – Appellate Attorney.

Mr. Hayes, an appellate attorney experienced in family law, can handle all issues on appeal pertaining to separation and divorce. In cases where there are multiple written judgments, Mr. Hayes has the family law and appellate background necessary to make certain those orders are consolidated to streamline an appellate decision.

The post Appealing Equitable Distribution And Other Orders Related To Divorce appeared first on Mark L. Hayes – Appellate Attorney.

The post Oral Argument During COVID appeared first on Mark L. Hayes – Appellate Attorney.

On appeal, Mr. Hayes argued that the trial court erred first in considering his client’s verified answer as an affidavit that could be used in summary judgment, and second in allowing a drafting error in that verified answer to be construed as an admission warranting summary judgment and hundreds of thousands of dollars in damages.

In the trial court, Mr. Hayes’ client represented himself and filed a combined motion to dismiss and verified answer. During this process, Mr. Hayes’ client accidentally denied one of the complaint’s allegations twice instead of responding to two side-by-side paragraphs of separate allegations. The opposing party then moved for summary judgment based on Mr. Hayes’ client’s response, which the trial court granted. Summary judgment, which keeps the case from reaching a jury, is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. The trial court took Mr. Hayes’ client’s accidental error as an admission to the allegation set forward in the opposing party’s complaint and deemed summary judgment proper. As part of ruling for the opposing party, Mr. Hayes’ client was also ordered to pay treble damages for one of the allegations.

On appeal, Mr. Hayes was first able to establish that the trial court erred when it did not consider his client’s verified answer as an affidavit in summary judgment, which had it been, there would have been genuine issues of material fact. Except for the single allegation of the complaint that Mr. Hayes’ client accidentally left unaddressed, he did deny material allegations central to the opposing party’s argument. Further, the opposing party did not move to strike Mr. Hayes’ client’s verified answer as an affidavit, which waived any objection to formal requirements of a procedural rule. The Court agreed with Mr. Hayes that the trial court did indeed err when granting summary judgment on his client’s mistake made purely by a drafting error.   

The Court of Appeals also found that reversal of the trial court’s decision was proper because that court erred in its award of treble damages to the opposing party. The Court held the opposing party did not present any evidence to support the damages it tried to get through one of its allegations and those allegations were not based on actual knowledge. Because the opposing party could not back up its allegation beyond information and belief, the Court found the large sum of damages the opposing party requested against Mr. Hayes’ client was inappropriate.

Please been advised, however, that success in this case should not be construed as an indication this firm will be successful in any given future case, and you should consult with a license attorney to determine the viability of your own case.

The post Winning Appeal: Gordon v Hancock appeared first on Mark L. Hayes – Appellate Attorney.