Martin v. Essrig

• Decision Date: 04 August 2011
• Docket Number: No. 09CA2182.,09CA2182.
• Citation: 277 P.3d 857
• Parties: Bernie MARTIN, Plaintiff–Appellee, v. Paul ESSRIG, Defendant–Appellant, and Concerning David S. Carroll, Attorney–Appellant.
• Court: Colorado Court of Appeals

277 P.3d 857

Bernie MARTIN, Plaintiff–Appellee,

v.Paul ESSRIG, Defendant–Appellant,andConcerning David S. Carroll, Attorney–Appellant.

No. 09CA2182.

Colorado Court of Appeals,

Div. III.

Aug. 4, 2011.

Hall & Evans, L.L.C., David E. Leavenworth, Jr., Brian Molzahn, Denver, Colorado, for Plaintiff–Appellee.

David S. Carroll, Denver, Colorado, for Defendant–Appellant and Attorney–Appellant.

Opinion by Judge J. JONES.

Paul Essrig (tenant), a former tenant of a residence owned by Bernie Martin (owner), appeals the district court's denial of his C.R.C.P. 60(b)(3) motion challenging as void a judgment in owner's favor on a claim that tenant had breached the parties' lease. He and his counsel, David S. Carroll, Esq., also challenge the district court's award of attorney fees incurred by owner in responding to the motion.

Mr. Carroll has filed briefs supporting this appeal which largely fail to advance a coherent argument in support of the contention of error. Most troubling, however, is the tenor of the opening and reply briefs. They are suffused with uncivil language, directed primarily against owner's attorneys, and sarcastic and bombastic rhetoric. This is not merely bad advocacy; it is, at least in large part, inconsistent with Mr. Carroll's professional obligation to represent his client in a civil manner. We therefore strike the opening and reply briefs, dismiss the appeal, assess attorney fees and double costs against Mr. Carroll, and remand the case to the district court for a determination of the reasonable attorney fees owner has incurred on appeal.

I. Background

Owner filed a complaint in county court for possession of the premises and damages for breach of the lease. Tenant asserted a counterclaim, and, as a result, the case was transferred to district court. Tenant ceded possession and confessed judgment for two months rent. Owner maintained, however, that tenant had not confessed judgment for all the damages sought.

Shortly before trial, owner sought to amend his complaint to claim additional damages. The district court denied the motion.

The case was tried to the court. During trial, Mr. Carroll objected several times that owner was putting on evidence of damages beyond those claimed in the complaint. The district court overruled the objections, reasoning that the evidence was relevant to the issues raised by the pleadings. The court found for owner on his claim and tenant's counterclaim, and awarded owner damages totaling $16,876.

Owner moved for an award of attorney fees under a prevailing party provision in the lease and section 13–17–102, C.R.S.2010 (providing for an award of attorney fees where a party's claim or defense “lacked substantial justification”). He also moved for an award of costs. The district court granted both motions.

Tenant filed a C.R.C.P. 59 motion to amend the judgment. He argued, as he had at trial, that the court had awarded damages beyond those encompassed by the factual allegations in the complaint. He made the same argument in two post-trial motions challenging the court's award of attorney fees and costs.

Following a hearing, the court again ruled that the damages awarded did not go beyond those contemplated by the pleadings, and denied tenant's post-trial motions.¹ The court sanctioned tenant under section 13–17–102 for filing the post-trial motions pertaining to the awards of attorney fees and costs.

Tenant appealed, challenging the district court's denial of his post-trial motions. A division of this court dismissed that portion of the appeal challenging the denial of the post-trial motion pertaining to the merits judgment, agreeing with the district court that the motion was untimely. The division affirmed the denial of tenant's motions challenging the award of attorney fees, and awarded owner his appellate attorney fees under the prevailing party provision and section 13–17–102. The division explained that tenant's appeal was substantially frivolous and groundless because: (1) his briefs failed to comply with C.A.R. 28 in several ways; (2) the reply brief consisted of “little more than ... a series of rhetorical questions and statements regarding the intemperance of opposing counsel”; and (3) “[t]he arguments actually made [in the briefs] either were not made to the trial court, assert errors in orders not appealed, or lack any support in the law.” Martin v. Essrig, (Colo.App. No. 07CA0994, 2008 WL 2612365, July 3, 2008) (not published pursuant to C.A.R. 35(f)) ( Martin I ). The division assessed attorney fees against both tenant and Mr. Carroll.

Almost one year later, tenant filed the Rule 60(b)(3) motion at issue in this appeal. He contended that the judgment was void because, as he had unsuccessfully asserted several times earlier in the litigation, the damages awarded exceeded those implicated by the complaint's factual allegations. Concluding that tenant was merely attempting to relitigate an issue that had already been decided “on several occasions,” the district court denied the motion. The court awarded owner his attorney fees and costs incurred in defending against tenant's motion under section 13–17–102, finding that the motion was “substantially frivolous, substantially groundless, and substantially vexatious.” The order directed both tenant and Mr. Carroll to pay attorney fees and costs.

II. Discussion

On appeal, tenant again maintains that the damages awarded by the district court go beyond those supported by the allegations in the complaint. He contends that this renders the judgment void because the district court entered it without subject matter jurisdiction.

Owner responds initially that we should strike tenant's briefs, dismiss the appeal, and impose other appropriate sanctions because tenant fails to comply with the appellate rules governing the form and content of briefs and because tenant's opening brief contains “inappropriate and unprofessional commentary.” Owner contends such sanctions are appropriate under C.A.R. 38(d) and (e) and section 13–17–102.

Owner's request is well-taken. In rare cases, conduct in prosecuting an appeal is so contrary to court rules and so disrespectful of the judicial process and the participants therein that the right to appellate review is forfeited. We conclude that this is such a case.

A. Deficiencies and Improper Language in Tenant's Briefs

In Castillo v. Koppes–Conway, 148 P.3d 289 (Colo.App.2006), a division of this court held that an appellant's brief did not comply with C.A.R. 28(a)(4), in part because, rather than setting forth a “cogent argument,” it presented “tortured rhetoric.” Id. at 291. The division refused to review the order at issue and summarily affirmed. Id.

Tenant's briefs in this appeal likewise fail to set forth a cogent argument. Though we believe we understand what tenant contends the error is, his briefs do not coherently explain why the district court erred: the analysis is obscured by irrelevant digressions, lack of structure, and use of a rhetorical style that is verbose, derogatory, and sarcastic.

For example, the opening and reply briefs repeatedly address—using inflammatory language—an alleged discussion between owner's counsel and tenant, which Mr. Carroll characterizes as a violation of ethical rules. That matter, however, does not have anything to do with the issue in this appeal. ² The opening brief also contains a two-page discussion of an inapposite hypothetical involving the use of official review in a National Football League game.³

The opening and reply briefs accuse owner's attorneys—again, using inflammatory language—of lying, acting illegally, violating the rules of professional conduct, defying court orders, and litigating the case for improper motives. They similarly accuse owner of acting dishonestly and for base purposes. The vast majority of these accusations have nothing to do with the issues raised in this appeal, even tangentially. The opening and reply briefs also include numerous other inappropriate statements.⁴

Such rhetoric hinders the court in deciding the merits of the appeal; we must waste judicial resources hacking through the verbal brush to uncover the substance (if any) of the arguments. It also disserves parties and debases both the legal profession and the judicial system. See In re Abbott, 925 A.2d 482, 485 (Del.2007); see also Snyder v. Secretary of Health & Human Services, 117 F.3d 545, 549 (Fed.Cir.1997) (condemning the use of language similar to that employed here); Cannon v. Cherry Hill Toyota, Inc., 190 F.R.D. 147, 161–62 (D.N.J.1999) (making the same point in the context of motions practice in the trial court); Gregoire v. Nat'l Bank of Alaska, 413 P.2d 27, 42–43 (Alaska 1966).

Further, using such degrading and disparaging rhetoric appears to “cross [ ] the line from acceptable forceful advocacy into unethical conduct.... ‘Lawyers are not free, like loose cannons, to fire at will upon any target of opportunity which appears on the legal landscape. The practice of law is not and cannot be a free fire zone.’ ” In re Abbott, 925 A.2d at 489 (quoting in part Cannon, 190 F.R.D. at 162);see Colo. RPC Preamble: A Lawyer's Responsibilities Preamble 5 (“A lawyer should use the law's procedures only for legitimate purposes and not to harass or intimidate others. A lawyer should demonstrate respect for the legal systemand for those who serve it, including judges, other lawyers and public officials.”), Preamble 9 (“Zealousness [in pursuing a client's legitimate interests] does not, under any circumstances, justify conduct that is unprofessional, discourteous or uncivil toward any person involved in the legal system.”); Colo. RPC 3.1 (“A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous....”); Colo. RPC 3.5 cmt. 4 (a lawyer must “[r]efrain[ ] from abusive or obstreperous conduct”; “patient firmness” is appropriate but ...