Avery v. Steele

• Decision Date: 03 March 1993
• Citation: 414 Mass. 450,608 N.E.2d 1014
• Parties: Marilyn C. AVERY v. Sandra C. STEELE (and a companion case 1 ).
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1014

608 N.E.2d 1014

414 Mass. 450

Marilyn C. AVERY v. Sandra C. STEELE (and a companion case ¹).

Supreme Judicial Court of Massachusetts,

Suffolk.

Argued Nov. 2, 1992.

Decided March 3, 1993.

John A. Taylor, Cambridge, for plaintiff.

Stephen A. Greenbaum, Boston, for defendant.

Before LIACOS, C.J., and WILKINS, NOLAN, LYNCH and GREANEY, JJ.

LIACOS, Chief Justice.

In this case, we consider whether an appellate court has the authority to impose sanctions on a party or on her attorney for inappropriate matter contained in her appellate brief. We limit our discussion of the facts to the proceedings following trial. We need state only that the underlying action, which arose in the Boston Housing Court, involved a dispute about the rent-control status of an apartment in the city of Boston. The apartment was occupied by Marilyn Avery and owned by Sandra Steele. Avery appealed from the dismissal of her complaint after trial and from the entry of a default judgment against her in a subsequent summary process action brought by Steele. The Appeals Court, in an unpublished memorandum of decision under Appeals Court Rule 1:28, dismissed Avery's appeal on jurisdictional grounds and affirmed the default judgment. 588 N.E.2d 729.

At the conclusion of its memorandum and order, the court stated the following: "Steele's request for sanctions. In her brief, at 61-63, Steele requests the imposition of sanctions against Avery because of disrespectful and irrelevant passages in her brief as well as allegations which are totally without record support. We allow the request and award to Steele double the costs of the consolidated appeals." Avery sought further appellate review in this court of the Appeals Court's dismissal of her original appeal and the award of double costs. We granted Avery's petition solely on the issue of the propriety of the assessment of double costs by the Appeals Court.

Before we consider an appellate court's authority to impose sanctions, we think it important to set forth the allegedly offending passages of Avery's brief. These passages generally ignore the written findings of the Housing Court judge, argue matters not raised at trial, refer to facts not in the record and often fail to provide any relevant citation of authority. It is fair to say that, while the substantive appeal may not have been wholly frivolous, it was of dubious merit. ² Steele argued that this "inappropriate matter" violated Mass.R.A.P. 16(a)(4), as amended, 367 Mass. 921 (1975), ³ and entitled her to an award of attorney's fees against Avery's counsel pursuant to the court's "general powers" and Mass.R.Civ.P. 11, 365 Mass. 753 (1974). Steele also cited G.L. c. 211, § 10 (1990 ed.), which provides that the Supreme Judicial Court may impose double costs on an appellant when an appeal is frivolous, immaterial, or intended for delay.

Steele's reliance on Rule 11 and G.L. c. 211, § 10, is inappropriate. Rule 11 does not apply to appellate briefs. ⁴ Similarly, Steele's reference to c. 211, § 10, fails to support an award of double costs by the Appeals Court, because that statute authorizes this court, and not the Appeals Court, to make such an award. Nevertheless, G.L. c. 211A, § 15 (1990 ed.), mirrors c. 211, § 10, and provides that the Appeals Court may impose double costs on an appellant when an appeal is frivolous, immaterial, or intended for delay. That statute expressly allows the Appeals Court to award double costs either on a party's motion or sua sponte. Additionally, Mass.R.A.P. 25, as appearing in 376 Mass. 949 (1979), provides: "If the appellate court shall determine that an appeal is frivolous, it may award just damages and single or double costs to the appellee, and such interest on the amount of the judgment as may be allowed by law." The Appeals Court cited no statute or rule, but we assume it acted pursuant to its power under G.L. c. 211A, § 15, and rule 25, to impose double costs on Avery because her brief contained "disrespectful and irrelevant passages" and "allegations ... totally without record support." The Appeals Court did not state any basis for its award, other than the reference to the inappropriate matter in Avery's brief. ⁵ Neither did it explain its reason for sanctioning Avery rather than Avery's counsel, when Steele's request for sanctions had asked expressly that counsel be sanctioned.

Appellate courts are authorized by statute to award double costs to an appellee in a civil case when the appeal is frivolous, immaterial, or intended for delay. See G.L. c. 211, § 10; G.L. c. 211A, § 15; Mass.R.A.P. 25. Rule 25 does not specify whether such costs are to be assessed against the party or the attorney. Although we have not considered the issue directly, courts interpreting the cognate Federal rule, Fed.R.A.P. 38, have held that sanctions under the rule may be imposed on either the party or the attorney. ⁶ See Romala Corp. v. United States, 927 F.2d 1219, 1225 (Fed.Cir.1991), and cases cited. We agree.

Although the Appeals Court in this case made no express finding that Avery's appeal was frivolous, immaterial, or intended for delay, we have the entire record before us and may decide the issue under rule 25 and G.L. c. 211, § 10. Muzichuk v. Liberty Mut. Ins. Co., 2 Mass.App.Ct. 266, 268, 311 N.E.2d 558 (1974), and cases cited.

An appeal is frivolous "[w]hen the law is well settled, when there can be no reasonable expectation of a reversal...." Allen v. Batchelder, 17 Mass.App.Ct. 453, 458, 459 N.E.2d 129 (1984). See Kourouvacilis v. General Motors Corp., 410 Mass. 706, 717, 575 N.E.2d 734 (1991). Unpersuasive arguments do not necessarily render an appeal frivolous. Shahzade v. C.J. Mabardy, Inc., 411 Mass. 788, 797 n. 8, 586 N.E.2d 3 (1992). Glorioso v. Retirement Bd. of Wellesley, 401 Mass. 648, 652, 518 N.E.2d 851 (1988). The determination whether an appeal is frivolous is left to the sound discretion of the appellate court. Id.

Our review of the record indicates that Avery's appeal was dismissed because she had filed her only notice of appeal while a posttrial motion was still pending, and thus the notice was a nullity. See Anthony v. Anthony, 21 Mass.App.Ct. 299, 302, 486 N.E.2d 773 (1985). While we do not conclude that every issue raised in Avery's appeal was frivolous, we agree with the view expressed by the Romala Corp. court. "[S]ome of [the] arguments are based on misrepresentations and distortions of [her] opponent's arguments and the [Housing] Court's opinion.... [E]ven the presence of a few non-frivolous arguments does not prevent an appeal as a whole from being deemed frivolous." Romala Corp., supra at 1224.

Inappropriate argument and unsubstantiated statements in a brief may infect an otherwise meritorious appeal so pervasively as to make it frivolous, see, e.g., id; Slack v. St. Louis County Gov't, 919 F.2d 98, 99-100 (8th Cir.1990). See also Porco v. Porco, 752 P.2d 365, 369 (Utah Ct.App.1988). When "appellate tactics ... consist[ ] almost entirely of irrelevant and misleading arguments as well as outright misrepresentation, [such tactics] exceed all permissible bounds of zealous advocacy and have been repeatedly condemned." Romala Corp., supra.

In concluding that the appeal at bar is frivolous, we remain mindful that many courts have warned against imposing sanctions for frivolousness except in egregious cases. See, e.g., id. ("sanctions should never lightly be imposed"); Mission Denver Co. v. Pierson, 674 P.2d 363, 365-366 (Colo.1984). In our view, this case is an egregious one. As the Romala Corp. court noted: " 'A frivolous appeal imposes costs not only upon the party forced to defend it, but also upon the public whose taxes supporting this court and its staff are wasted on frivolous appeals.' ... This is particularly true in a case such as this one, in which a party has misrepresented the holding of the trial court and misstated the opposing party's principal position. By forcing the court to expend extra time and effort in carefully double-checking every reference to the record and opposing counsel's briefs, lest we be misled, such argumentation threatens the integrity of the judicial process and increases the waste of resources." Romala Corp., supra at 1224, quoting Finch v. Hughes Aircraft Co., 926 F.2d 1574, 1578 (Fed.Cir.1991).

We note also that "court[s] of superior jurisdiction [have] the inherent power ... to punish those who obstruct or degrade the administration of justice." New England Novelty Co. v. Sandberg, 315 Mass. 739, 746, 54 N.E.2d 915, cert. denied, 323 U.S. 740, 65 S.Ct. 63, 89 L.Ed. 593 (1944). This court and the Appeals Court have wide discretion to determine when a party or attorney before it has acted in a manner warranting the imposition of sanctions. We disagree with the Appeals Court only on the issue whether the costs should be paid by the attorney rather than the appellant. The inappropriate material that the court referred to was in a legal brief, prepared and signed by Avery's counsel. Counsel for both parties have indicated that Avery was not the motivating force behind the inclusion of this material. Moreover, as a lay person, she would have no reason to suspect that the statements were not part of a proper legal argument. Absent some indication that Avery herself was responsible for the inappropriate material, we believe it inappropriate to impose sanctions against her.

Accordingly, we vacate the Appeals Court order imposing double costs on Avery and substitute an order imposing double costs on her attorney for the consolidated appeals heard by the Appeals Court.

So ordered.

1 Sandra C. Steele vs. Marilyn C. Avery.

2 We note that the Appeals Court referred to a three-page portion of Steele's brief, which in turn makes several references to portions of Avery's brief. We have reviewed the briefs of the parties in their entirety. The statements we reprint are from the passages referenced by Steele. We have condensed the...