Wizenberg v. Wizenberg, 838 F. App’x 406, 2020 WL 7352578 (11th Cir. Dec. 15, 2020)
Some creative writing should be left for literature—or at least a writing class, not court briefs.
This case began as a state court dispute between two brothers over their mother’s estate. While the probate action was in progress, one brother (Peter) filed for bankruptcy. Although Peter appeared pro se, he was actually an attorney who had practiced in the bankruptcy court for several years. Id. at 408. His brother sought to lift the bankruptcy stay to proceed in probate court.
Peter filed a 69-page motion to dismiss his brother’s action, and a 153-page motion for reconsideration, which included “a nonsensical haiku.” Id. at 408–09. (For attorneys who complain about page limits, conduct like this is what drives the limits.) During the deposition of his brother, Peter told opposing counsel to “shush, shush, shush.” Id. at 409. He failed to produce a privilege log and then claimed not to know what one was. The bankruptcy judge, “unhappy” that a practicing attorney would make such a claim, imposed the first monetary sanction. Id. at 410.
At trial in bankruptcy court, Peter filed a 326-page opening statement. He was repeatedly admonished for objecting to answers to his own questions and for “blatantly attempting to coach a witness in the course of trial as to what she would testify to.” Id. The bankruptcy court found against Peter and awarded further sanctions for bad faith because he had “suffocated [the] docket with painfully long and frivolous pleadings, many of which [were] based in neither law nor fact.” Id. at 411. Due to Peter’s actions, the court pointed out, the adversary proceeding took “fourteen months and over 250 docket entries.” Id. The district court subsequently affirmed the bankruptcy court. Id.
On appeal, the U.S. Court of Appeals for the Eleventh Circuit affirmed as well. It found that the bankruptcy court did not abuse its discretion because Peter’s conduct “was egregious enough to rise to the level of bad faith.” Id. at 413. The court then considered the brother’s motion for sanctions on appeal. Peter’s reply stated that this sanctions motion was “pure hogwash” and “frivolous.” The Eleventh Circuit disagreed and awarded sanctions, pointing out that Peter, “a self-proclaimed bankruptcy attorney, filed an 88-page opening brief littered with exclamation points and rants,” resulting in a brief that was “difficult to follow, and deciphering and reorganizing his arguments wasted taxpayer’s resources that otherwise could have been spent on cases ‘worthy of consideration.’” Id. at 415. The court stated Peter’s brief “failed to coherently cite case law, though he cites Bugs Bunny.” Id. (emphasis added). While there may be appropriate places to include a haiku—and perhaps even to quote Bugs Bunny—an appellate brief is not one.
Springsteen-Abbott v. S.E.C., 989 F.3d 4 (D.C. Cir. 2021)
This case, which arose out of an Securities and Exchange Commission (SEC) administrative penalty proceeding, is another reminder of the importance of issue preservation—and candor with the court.
On appeal, the appellant attempted to raise, for the first time, constitutional arguments concerning the Appointments Clause and due process. In her reply brief, the petitioner claimed that she had raised these below “by consistently ‘beg[ging] for due process’ and making ‘many pleas for constitutional adjudication.’” Id. at 8.
The opinion points out that, “[a]t oral argument, we repeatedly pressed Petitioner’s counsel further on this question, asking him to direct the Court to where the Due Process arguments were made before the SEC.” Id. at 8 n.2. Counsel offered three different answers. When the court checked the cited record pages, none of them included the arguments sought to be raised on appeal (one was the notice of appeal and another a section dealing with the burden of proof). Id. The petitioner’s “ambitious constitutional arguments are futile for the simple reason” that, contrary to counsel’s claim, they were never raised to the SEC. Id. at 7.
Moreover, a nonconstitutional argument, regarding disgorgement of profits, failed when she tried to alter the basis in her reply brief. The court observed that “it was incumbent on the Petitioner to make this point in the argument section of her opening brief.” Id. at 9. Regardless of their potential merit, the court did not consider most of the petitioner’s arguments because they were too late.
The court concluded with a more general observation that it is “rather puzzling that so many cases of alleged forfeiture of constitutional arguments before an agency have arisen recently all across the country.” Id. The court pointedly advised that “the ‘specialized bar’ should take care to either stay up to date on broad appellate legal trends or consult those who do.” Id. at 9–10. Attorneys bringing appeals to the U.S. Court of Appeals for the D.C. Circuit would do well to follow this advice.
In re Tennial (Tennial v. REI Nation), 978 F.3d 1022 (6th Cir. 2020)
This case is an example of an appellant who wins the legal battle but loses the war.
A debtor in bankruptcy failed to file a timely appeal of the termination of the automatic stay. Counsel filed the appeal 13 days beyond the limit set out in the Bankruptcy Rules, claiming that she did not receive the order in the mail in time (glossing over the timely electronic notice). The district court granted a motion to dismiss based on prior cases where the Sixth Circuit said the time limit in the Bankruptcy Rules was jurisdictional. Id. at 1025.
On appeal, the debtor argued that the deadline in the Bankruptcy Rules was not jurisdictional. Based on more recent U.S. Supreme Court cases, the Sixth Circuit agreed. The court acknowledged that “[a]ll the intermediate appellate authority on the issue” concluded the time limit in the Bankruptcy Rules was jurisdictional. Id. at 1026. Nevertheless, the court held that the time limit “for filing a notice of appeal does not create a jurisdictional imperative. Id. at 1028.
At this point, the debtor should have felt ecstatic, having convinced the court of appeals to overturn its own prior cases and reject the contrary analysis of other courts of appeals. No joy in Mudville tonight, however. The Sixth Circuit ruled that while the deadline may not be jurisdictional, it was required by the Bankruptcy Rules, which were enforceable. “Because the appeal deadline is mandatory, because [debtor] missed it and because [opposing counsel] raised the issue in its motion to dismiss, the appeal must be dismissed as dilatory.” Id.
The decision may have changed the law going forward, but that did this debtor no good.
Carbonara v. Fortress Group, 853 S.E.2d 388 (Ga. Ct. App. 2021)
This is another example of a failure to follow the appellate rules regarding time limits, with fatal results—although in this case it was not just a few days late.
In Georgia, an appellant must file the transcript in the trial court within 30 days of a notice of appeal or request an extension. Id. at 391. Here, the appellants did neither. Seven months after the notice was filed, the appellee moved to dismiss. Id. at 390.
The trial judge tried to determine if the appellants had paid for the transcript, but their response was evasive. Id. The judge eventually obtained a substitute court reporter. Nine months after filing the notice of appeal—and at least 50 days after the motion to dismiss—the appellants finally ordered the trial transcripts, which were not filed for another three months. Id. at 391. The trial court then denied the motion to dismiss, citing a court reporter’s illness. Id.
The court of appeals stated that the nine- to 12-month delay in filing the transcript was “unreasonable.” Id. at 392. The appellants had “wholly shirked their responsibility to obtain the transcript as required by law and to remain in contact with the court reporter about progress.” Id. The appellants tried to blame the trial court’s interjection into the process, or the court reporter. “But it is the appellant’s burden, not the court or court reporter, to take the necessary steps to secure the transcript.” Id. The trial judge did not become involved until after the motion to dismiss, months after trial. As for the court reporter’s illness, the court of appeals pointed out that it also did not occur until several months after the notice of appeal. The appellants offered no explanation for this initial delay. Further, one day of the trial had a different court reporter, “who had no medical issues.” However, that portion of the transcript likewise had not been requested prior to the motion to dismiss. Id. at 393. Noting that “[d]elay by the appellant in obtaining a transcript is ‘justice denied to the litigant who was successful in the lower court . . . ,’” the court of appeals ordered the appeal dismissed. Id.
The delays in this case were extraordinary, but the basic principle applies regardless: every party must pay strict attention to the rules of the appellate court before which they appear, particularly the time limits.
