“A bulldozer can move piles of dirt from one place to another,” begins the opinion in Tedesco v. White (D4d3 Oct. 27, 2023 No. G061197) [nonpub. opn.]. “But when the goal is to move minds rather than dirt, employing a bulldozer may be counterproductive. The bulldozer in this case is [appellant’s] counsel.” The aggressive tactics were a continuation from an earlier appeal where the court said of counsel’s accusations of “pervasive falsification of the record” and “disgraceful” misconduct that “[w]e do not confuse aggressive argument with persuasive advocacy”—and of the fact that these criticisms were directed to another appellate court, that they were “potentially contemptuous.”
The appeal was from discovery sanctions of $6,000. But that order, the court noted, “does not appear to be counsel's real concern,” which was “to use that sanctions order as a basis for challenging the merits of the trial court's nonappealable order quashing” a subpoena” and “to again collaterally attack the validity of a conservatorship.” A hint: the appellant's appendix was over 9,000 pages.
Another misstep: Appellant briefed a challenge to the merits of a nonappealable distribution order, even after the court had granted a motion to dismiss as to that part of the appeal. So the court granted the respondent’s motion to strike those portions of the appellant’s brief.
The court did not award appellate sanctions against the appellant. But the respondent did not move for sanctions. The tenor of the opinion suggests that, had the respondent made a motion, the court likely would have issued sanctions.
Takeaway: Aggressive and hyperbolic arguments never work on appeal.
