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Appeal Held Not Frivolous, But Lawyer Argued It Frivolously

Tim Kowal     November 10, 2020

The 10th Circuit sanctioned the attorney of a homeowner tenaciously trying to avoid foreclosure on her home. The court noted that "an appeal may be frivolous as filed or as argued." An appeal frivolous as-filed is one where the decision is "plainly correct" so there is no genuine appealable issue.

But an appeal may be genuine, but just frivolously argued, and thus subject to sanctions. "A party may argue an appeal frivolously by “mak[ing] no attempt to address the elements requisite to obtaining reversal,” advancing “irrelevant arguments,” “failing to explain how the lower tribunal erred or to present clear or cogent arguments for overturning the decision below,” and “cit[ing] inapplicable or irrelevant authorities.” "

Here, the court sanctioned the attorney, but not his client, because the client was not responsible for the attorney's poor briefing. The court noted that "parts of his briefs “read[] as though [their] author simply has not read the order he is appealing.” "

The court also sanctioned the attorney for double the bank's cost of preparing an appendix. Attorney had only included docket entries, the complaint, and the district court's order, which was "wholly inadequate."

Mitchell v. Bank of N.Y. Mellon, No. 19-4098 (10th Cir. Nov. 2, 2020).

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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