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MShore
MShore, Attorney
Category: Legal
Satisfied Customers: 25285
Experience:  Negotiate, Draft, and Review many complex commercial agreements each year.
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I am appealing a SC-Cherokee County Magistrate Court ruling

Resolved Question:

I am appealing a SC-Cherokee County Magistrate Court ruling to the SC/Cherokee County Court of Common Pleas. It wil be a non-jury appeal. I must act "pro-se" due to my finances.
What information/documents etc are allowed to be presented? What issues will the Appeals Judge hear?

I have filed the appeal. The reasons I state on the appeal are:
1) The magistrate court violated SC law relevant to contracts between service providers and receipients of service.
2) The magistrate court ruling did not follow SC state/county statues
4) The magistrate court judge did not properly review evidence presented.
5) The magistrate courts ruling was made based on a bias for the plantiff (personal relationship between magistrate and plantiff)

Since filing the appeal, I requested a transcript of the Magistrate Court Ruling. I received a "Return" from the Magistrate Court stating "an attempt was made to review the tape used during this case, however it was blank".
3) The magistrate court ruling was made based on a bias for the Plantiff
Submitted: 2 years ago.
Category: Legal
Expert:  MShore replied 2 years ago.
Thank you for the post, I am happy to assist you by answering your questions.

Regarding your first question of information/documents are to be considered:
1. documents, even those containing hearsay so long as they fall within an exception, even effect on the listener
2. transcript from lower court trial
3. pictures and/or audio introduced from the lower court trial
4. evidence excluded, if the argument is that it was excluded improperly

Regarding your second question, issues considered are:
1. Was there any mistake of law or reversible error in the lower court's application of the law to the facts.

Please let me know if you need additional guidance.
Customer: replied 2 years ago.

The magistrates "Return" to the Appeals Court stated the the tape failed to record the transcript during the magistrate hearing, therfore one is not availible. It further gave a paragraph of what the magistrate "rembered" as the testimony. Is this grounds for me to ask the appeals court to rule in my favor, or ask the case be remanded back to the lower court, for a new hearing?

 

Please fully explain #1 - documents, even those containg heresay, etc.

 

Is the following a "mistakes of law or reversible error":

Contractor did not meet signed deadline for completion of work. Proper evidence presented to support this. Further, the contractor was aware that I had received USDA funding. Retention of that funding was only possible if the contracted work was completed by the deadline date.

 

Concerning "evidence excluded" - the magistrate did not review the document from the USDA stating funding would either not be dispersed, or I would need to repay and funds dispersed, if the FDA deemed eligibility requirements and deadlines were not met.

Expert:  MShore replied 2 years ago.
It is grounds for you to request that the matter be remanded back to the lower court, but not a decision in your favor.

Yes, the conclusion that you did not meet the signed deadline is reversible error.

By even those containing hearsay, I meant that just because a document contains hearsay does not necessarily mean it must be excluded. there are exceptions to the hearsay rules, which are found in Rule 803:

RULE 803
HEARSAY EXCEPTIONS; AVAILABILITY OF DECLARANT IMMATERIAL

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

(1) Present Sense Impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.

(2) Excited Utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.

(3) Then Existing Mental, Emotional, or Physical Condition. A statement of the declarant's then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarant's will.

(4) Statements for Purposes of Medical Diagnosis or Treatment. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment; provided, however, that the admissibility of statements made after commencement of the litigation is left to the court's discretion.

(5) Recorded Recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

(6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness; provided, however, that subjective opinions and judgments found in business records are not admissible. The term "business" as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit.

(7) Absence of Entry in Records Kept in Accordance With the Provisions of Subsection (6). Evidence that a matter is not included in the memoranda, reports, records, or data compilations, in any form, kept in accordance with the provisions of subsection (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness.

(8) Public Records and Reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel; provided, however, that investigative notes involving opinions, judgments, or conclusions are not admissible. Accident reports required by S.C. Code Ann. §§ 56-5-1260 to -1280 (1991) are not admissible as evidence of negligence or due care in an action at law for damages.

(9) Records of Vital Statistics. Records or data compilations, in any form, of births, fetal deaths, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law.

(10) Absence of Public Record or Entry. To prove the absence of a record, report, statement, or data compilation, in any form, or the nonoccurrence or nonexistence of a matter of which a record, report, statement or data compilation, in any form, was regularly made and preserved by a public office or agency, evidence in the form of a certification in accordance with Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry.

(11) Records of Religious Organizations. Statements of births, marriages, divorces, deaths, legitimacy, ancestry, relationship by blood or marriage, or other similar facts of personal or family history, contained in a regularly kept record of a religious organization.

(12) Marriage, Baptismal, and Similar Certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized by the rules or practices of a religious organization or by law to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter.

(13) Family Records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

(14) Records of Documents Affecting an Interest in Property. The record of a document purporting to establish or affect an interest in property, as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office.

(15) Statements in Documents Affecting an Interest in Property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document, unless dealings with the property since the document was made have been inconsistent with the truth of the statement or the purport of the document.

(16) Statements in Ancient Documents. Statements in a document in existence twenty years or more the authenticity of which is established.

(17) Market Reports, Commercial Publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations.

(18) Learned Treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. This rule is in addition to any statutory provisions on this subject.

(19) Reputation Concerning Personal or Family History. Reputation among members of a person's family by blood, adoption, or marriage, or among a person's associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history.

(20) Reputation Concerning Boundaries or General History. Reputation in a community, arising before the controversy, as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community or State or nation in which located.

(21) Reputation as to Character. Reputation of a person's character among associates or in the community.

(22) Judgment of Previous Conviction. Evidence of a final judgment (to include final judgments in juvenile delinquency matters), entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Government in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility.

(23) Judgment as to Personal, Family or General History, or Boundaries. Judgments as proof of matters of personal, family or general history, or boundaries, essential to the judgment, if the same would be provable by evidence of reputation.
Customer: replied 2 years ago.

One of my previous questions seems to have been overlooked, or I failed to see:

 

Concerning "evidence excluded" - the magistrate did not review the document from the USDA stating funding would either not be dispersed, or I would need to repay any funds dispersed, if the USDA deemed eligibility requirements and deadlines were not met.

 

When the USDA reviewed my eligibility requirements, they deemed I had not followed the guidelines - the contract was not completed by the agreed upon date. The USDA then notified me I must repay all funds dispersed by the USDA.

 

Concerning "heresay" - a witness I needed to confirm that the contractor did not complete the work by the deadline ( a former employee of the contractor,that completed the work 32 days after the deadline) was not availible for magistrate court. He was a guest of the Cherokee County Detention Center, for non-payment of child support. Can I present a statement from him to the appeals court?

 

Are the following request "logical", in terms of what an appellate judge might consider? If so, which ones would potentially produce the best outcome for me?

1) Ask that the appeals court remand the case back to the lower court since no transcript is availiable from the lower court.

2) Ask that the appeals court overturn the lower court ruling since it made an error concerning the deadline of my contract not being met.

3) Ask the appeals court to overturn the lower court ruling since the lower court failed to consider the evidence produced from the USDA, concerning eligibility guidlelines (contract deadline being met), and payment for services rendered.

 

How should I format my statements and documents at the appeal hearing to acheive maximum results?

Expert:  MShore replied 2 years ago.
In the following I was unable to identify your question:

"Concerning "evidence excluded" - the magistrate did not review the document from the USDA stating funding would either not be dispersed, or I would need to repay any funds dispersed, if the USDA deemed eligibility requirements and deadlines were not met.

When the USDA reviewed my eligibility requirements, they deemed I had not followed the guidelines - the contract was not completed by the agreed upon date. The USDA then notified me I must repay all funds dispersed by the USDA."

If this is the introduction to the remainder of the most recent post, please pardon me as I misunderstood the intent of that language.

Regarding the other questions posed:

Yes, you can present the statement, though because it was not entered into evidence and he was unable to attend, that evidence would be considered properly excluded.

Also the term is "hearsay" not "heresay." I am only offering this correction because there will already be a bias against you as a pro se litigant and I do not want you to bolster or affirm this bias by failure to use the proper terminology.

you should ask the court to remand and the lower court reconsider the issues you seek to challenge on appeal. This is your best option because it allows the matter to be reconsidered which is your objective, but without the higher court actually ruling on reversible error because it has no lower court transcript or record.

While I of course cannot write out your arguments for you to ensure that your format is logical and proper, so long as your statements are formatted logically (i.e. conclusions supported by logical premises) it would suffice. The overarching objective here would be to be viewed as competent and this will require immediately starting with a logical, well thought out argument, anything short of this, and you will be viewed as ill equipped to make a case and your words will fall on deaf ears.
Customer: replied 2 years ago.

Thank you for the spelling correction. I must go down this path of "the man who has himself for an attorney, is a fool", so any tutoring I receive is very appreciated. Also, the information you provided on how to format my appeal argument is exceptional.

 

How do I address the fact that the "statement" (since no transcript was recorded) made by the Magistrate Court in its "Return" to the Appeals Court, is not accurate?

 

 

To insure I am utilizing your expertise correctly, please review the following synopsis and let me know if it is viable as a legitimate course of action.

 

I am asking that the appeals court remand the case back to the lower court based on the following:

1) No transcript is available from the lower court.

2) The magistrate made an error in not reviewing and considering the USDA Documentation presented.

3) The magistrate did not properly consider the "Contractual Deadline Agreement".

 

Is it possible for this dialog to stay open until I complete my appeal statement? I would like to have you review it, for accuracy. I should be able to respond back with it by 8 pm tonight. If so, would you be able to respond back tonight?

 

 

 

 

Expert:  MShore replied 2 years ago.
There may be a misunderstanding as to the nature of Just Answer question service and answer service, it is not an open dialog of perpetual questions and answers in one post. While I am happy to assist you, I must respectfully XXXXX XXXXX you click Accept if I have answered your initial questions.

I can be of greater assistance via the Offer More function as well.
Customer: replied 2 years ago.

Thank you for the clarification on the use "Just Answer". I will follow the guidelines.

However, could you please address the last 2 questions I asked in my last post, before we close? I have pasted them below, for your review.

 

How do I address the fact that the "statement" (since no transcript was recorded) made by the Magistrate Court in its "Return" to the Appeals Court, is not accurate?

 

 

To insure I am utilizing your expertise correctly, please review the following synopsis and let me know if it is viable as a legitimate course of action.

 

I am asking that the appeals court remand the case back to the lower court based on the following:

1) No transcript is available from the lower court.

2) The magistrate made an error in not reviewing and considering the USDA Documentation presented.

3) The magistrate did not properly consider the "Contractual

Expert:  MShore replied 2 years ago.
Certainly.

1. Do you mean how do you disprove that the tape was blank?

2. Yes
Expert:  MShore replied 2 years ago.
Did I answer your questions?
Customer: replied 2 years ago.

Sorry for not being clear.

How do I address the fact that the written statement made by the magistrate to the appeals court is not correct? His statement was what he remembered, since the tape was blank.

 

I want to verify your reply of "Yes" means my synopsis (the 3 points listed), is accurate?

 

 

Expert:  MShore replied 2 years ago.
Thank you, "yes" was in response to the synopsis being accurate.

Regarding the written statement, it is not that his recollection is not correct, you cannot disprove his recollection without his statements to the contrary impeaching himself. Rather, you would argue that his recollection is fallible and in any event not evidence admitted to the record, and should not therefore be the basis of an appellate court ruling.
MShore, Attorney
Category: Legal
Satisfied Customers: 25285
Experience: Negotiate, Draft, and Review many complex commercial agreements each year.
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