This firm recently won an appeal in Adventure Trail v. Owens, which allowed our client to remain in his home. Had the appealed order remained in effect, our client would have had to have moved from the home he has been living in for many years. When we called him to tell him about the victory just before Christmas, he exclaimed that it was the best Christmas gift he had ever received!
The Adventure Trail case hinged on a procedural issue which had not been raised at the trial level. In other words, the trial counsel was not even aware that the argument could have been made. Many times when trial counsel does not raise an issue at the trial level, it is not “preserved,” and therefore it cannot be raised for the first time on appeal. In this case, however, the issue fell into one of the exceptions to that rule.
Hindsight is always 20-20 and we hesitate to criticize a trial attorney who must present a case in “real time,” thinking on his feet and making trial decisions on the turn of a dime. Nonetheless, even if a trial attorney may not have any notion that an error has occurred, a good appellate attorney may be able to uncover a winning issue for appeal. That’s what happened in the Adventure Trail case. We should point out that the trial attorney did raise another issue which this firm also fleshed out and pursued on appeal. Fortunately, because we won on the procedural issue, the Court of Appeals did not even consider the trial attorney’s issue. It ruled for us on the procedural issue and did not see the need to also discuss the other issue.
The full opinion is available at the N.C. Courts website at this link: Adventure Trail v. Owens