Winning Appeal: Gordon v Hancock

by | Jan 9, 2021

The Law Office of Mark L. Hayes had a recent success in Gordon v. Hancock, No. COA-18-712 (N.C. Ct. App. Mar. 3, 2020), resulting in the reversal of a six-figure judgment against its client.

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.

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