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June 03, 2019 Articles

Silly Lawyer Tricks XVI

Appeals of attorney fee awards sometimes lead to unwanted results.

By Tom Donlon

This is the latest column in our continuing series on real mistakes and misdeeds by real lawyers in cases on appeal.

In re McCoobery, 93 N.Y.S.3d 45 (N.Y. App. Div. 2019)

This case was brought to my attention by our longtime website editor and subcommittee chair, Sandy Hausler. Thanks for the heads-up, Sandy—and for all you have done for the committee over the years.

The attorney in this case had been admitted to practice for over 20 years, the last 11 with the same firm. For all that time, he had a spotless disciplinary record. Yet when his father was diagnosed with a terminal illness, he apparently could not cope, which led to his sanction for conduct in two separate appeals.

In the first appeal, the attorney was tasked with preparing an appellee’s brief. He drafted the brief and then filed it, without the responsible partner’s knowledge. Later, when the partner asked about the brief, instead of admitting that he had already filed it, the attorney gave the partner what he claimed was a draft. The partner reviewed it and made revisions, which were never filed. Eventually, the partner discovered what happened.

In the second case, the attorney was tasked with sending a brief and record on appeal to the printer for filing and service. The attorney sent the brief but did not instruct the printer to file and serve it, so the brief never reached the court. To cover up this failure, the attorney told the partner that the attorney had stipulated to allow opposing counsel an extension to submit the appellee’s brief. When that time was up, the attorney “fabricated an opposition brief which he provided to the partner as though it were genuine.” He also fabricated an email chain to make it appear that the made-up brief came from opposing counsel. The partner then drafted a reply, responding to the arguments in the made-up brief, and even shared the reply with the client.

The attorney continued the cover-up by telling the partner that the appeal was calendared for the June Term. In May, when the appeal did not show up on the argument calendar, the partner said that he was going to call opposing counsel. The attorney finally admitted to his elaborate scheme—which had gone on for over six months—and resigned from the firm. The present disciplinary case followed.

Noting that no actual harm to the client had resulted and that the attorney had a clean record, the appellate court accepted the three-month suspension previously agreed to between the Grievance Committee and the attorney.

Apparently, the bar association and the court were very sympathetic to the illness and eventual death of the attorney’s father, imposing such a low penalty for the lawyer’s intentional conduct over such a long time.

Martinez v. O’Hara, 244 Cal. Rptr. 3d 227 (Ct. App. 2019)

The attorney in this case received far less sympathy from the court.

The plaintiff initially brought a wide range of employment-related claims but only succeeded on the one for sexual harassment, for which the jury awarded $8,000. The plaintiff’s counsel subsequently sought $146,000 in attorney fees as the prevailing party, which the trial court refused to grant. The plaintiff appealed.

In an unpublished section of its opinion, the appellate court affirmed the trial court’s denial of attorney fees. The appellate court then turned to the conduct of the plaintiff’s counsel—in a section of the opinion that the court did publish.

The court first addressed the notice of appeal. Instead of using the regular form, the plaintiff’s counsel drafted his own, stating that the appeal was “from the lower court’s disgraceful order” and that the “ruling’s succubustic adoption of the defense’s position, and resulting validation of the defendant’s pseudohermaphroditic misconduct, prompt one to entertain reverse peristalsis unto its four corners.” The notice also claimed that counsel never received a copy of the judgment because the court “apparently cynically attempted to suppress notice of the judgment in order to thwart review.” Counsel’s subsequent appellate brief contained many statements “that cannot be fairly characterized as acts of zealous advocacy,” repeatedly accusing the judge of “intentionally” disregarding the law.

The opinion quotes the Webster’s Third New International Dictionary definition of succubus as “1: a demon assuming female form to have sexual intercourse with men in their sleep . . . 2: demon, fiend 3: strumpet, whore.” The court found that such language—used regarding the decision of a female trial judge —violated the ethical rules against manifesting bias based on gender, which the court said “will not be tolerated.” Further, the claims that the trial court tried to prevent notice of entry of the judgment, “made without any support in the record,” constituted additional ethical violations.

For his actions, the court ruled that the attorney be referred to the state bar for discipline. As the court pointed out, “[w]e cannot understand why plaintiff’s counsel thought it wise, much less persuasive, to include the words ‘disgraceful,’ ‘pseudohermaphroditic misconduct’ or ‘reverse peristalsis’ in the notice of appeal.”

Spineology, Inc. v. Wright Med. Tech., Inc., 910 F.3d 1227 (Fed. Cir. 2018)

This is another case where a party appealed the denial of attorney fees.

The defendant in a patent infringement case prevailed on summary judgment. The trial court denied its subsequent motion for attorney fees because the case was not “exceptional,” as required under the fee statute.

The trial court’s grant of summary judgment was based on noninfringement, so it never reached the issue of damages. Nevertheless, the defendant argued on appeal that the trial court erred by not considering that issue to determine if the case was exceptional. The court of appeals noted that the plaintiff “asks this court to basically decide the damages issues mooted by summary judgment to determine whether it ought to obtain attorney fees for the entire litigation. This we will not do.” Nor would the court require the trial judge to do so. “A district court need not, as [counsel] seems to urge, litigate to resolution every issue” to decide an attorney fees motion, and “we need not, as [counsel] requests, get into the weeds on issues the district court never reached.”

Affirming the ruling below, the court concluded, “[W]e caution future litigants to tread carefully in their complaints about district courts not doing enough.”

Knudson v. Ryer, No. A149532, 2018 Cal. App. Unpub. LEXIS 8489 (Ct. App. Dec. 17, 2018)

In yet another appeal of an attorney fees motion—are you sensing a theme here?—a defendant was awarded attorney fees, and the plaintiffs appealed, which turned out to be a poor decision.

This case is actually the third appeal in a long-running dispute between the parties over a family trust. The plaintiffs, a brother and sister, claimed that the defendant, their sister, used undue influence to gain most of their parents’ assets.

In the first case, the plaintiffs unsuccessfully challenged the defendant’s appointment as successor trustee. The plaintiffs appealed and received extensions of time, but never filed their brief, instead dismissing the appeal when the brief was ultimately due.

The second appeal followed a bench trial that found for the defendant on the undue influence claims. Once again, the plaintiffs appealed but dismissed the case before any decision.

Thereafter, the defendant sought attorney fees, claiming that the plaintiffs had no grounds to deny her pretrial request for admissions. The trial court agreed, awarding her over $127,000.

For the third time, the plaintiffs appealed. This time, the case actually reached the appellate court. The plaintiffs’ only argument on appeal was that they had a “good faith belief they would prevail at trial” and, therefore, could refuse the request to admit the central elements of defendant’s case. The plaintiffs repeatedly stressed their good faith, but, as the court observed, “repetition does not make it so.” The court pointed out that the plaintiffs failed to support their argument with legal analysis or appropriate citations to the facts in the record. Rather, their “brief is mostly ‘lifted word for word’ from their unsuccessful trial court opposition.” Further, the plaintiffs even failed to file a reply brief.

After concluding that the trial court did not err in awarding attorney fees, the appellate court considered the defendant’s request for additional sanctions for a frivolous appeal. The court granted the request, holding that the appeal “indisputably has no merit.” The court considered the plaintiffs’ “pattern of filing appeals—including this meritless appeal” as evidence that the appeal was intended—and did—delay resolution. To the amount awarded by the trial court, the appellate court added an additional $33,000 in attorney fees.

The difficulty in succeeding on an appeal of attorney fees, given the deferential standard of review and the number of cases where appellate courts have imposed additional sanctions (as noted in prior columns), should make any appellate advocate pause before recommending such an appeal to his or her client.

Harleysville Worcester Ins. Co. v. Wesco Ins. Co., 752 F. App’x 90 (2d Cir. 2019)

This case involved an appellant’s unsuccessful effort to change horses in midstream.

A truck delivered milk, contaminated with metal filings, to a cheese factory, resulting in damage to the factory’s equipment. The milk-delivery company had separate policies with two different insurance companies. Harleysville’s policy provided general liability coverage, while Wesco’s policy provided automobile liability coverage. When lawsuits ensued, Wesco disclaimed coverage, asserting that Harleysville’s policy should cover the loss. Harleysville contended that its policy exclusion applied, so Wesco should be responsible. Harleysville nevertheless assumed the defense under a reservation of rights and ultimately funded a million-dollar settlement. Harleysville then sued Wesco.

In the district court, Wesco defended on the same grounds on which it had disclaimed coverage: i.e., that Harleysville’s policy, not Wesco’s, covered this loss. The district court disagreed and granted summary judgment to Harleysville.

On appeal, Wesco did “an about-face,” conceding that its policy covered the accident but arguing that Harleysville could not recover because Harleysville acted as a volunteer and did not provide timely notice of the claim. The Second Circuit refused to consider this defense as a new argument on appeal, noting that Wesco could have raised this argument as an alternative in the district court and did not explain its failure to do so.

This result was signaled at the oral argument—only a week earlier—when one of the panel members described Wesco’s change of position on appeal as chutzpah. Another member observed that it was ironic that Wesco was making the opposite argument that it had made before the trial court. By summary order, the court denied the appeal.

Regardless of appellate counsel’s audacity in presenting a new defense on appeal, the failure to raise the argument—and, in fact, to claim the reverse—below doomed the appeal.

Tom Donlon is counsel with the firm of Robinson + Cole LLP in Stamford Connecticut. A former cochair of the Appellate Practice Committee, Donlon continues to serve as a vice chair while also serving as cochair of the Section of Litigation’s Sound Advice Committee.

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