Tupling v. Britton, 79-31.

• Decision Date: 24 January 1980
• Docket Number: No. 79-557.,No. 79-31.,79-31.,79-557.
• Citation: 411 A.2d 349
• Parties: Edward William TUPLING, Appellant, v. Elizabeth BRITTON, Appellee.
• Court: D.C. Court of Appeals

411 A.2d 349

Edward William TUPLING, Appellant, v. Elizabeth BRITTON, Appellee.

No. 79-31.

No. 79-557.

District of Columbia Court of Appeals.

January 24, 1980.

Walter T. Charlton, Washington, D. C., for appellant.

Elizabeth Britton, pro se.

Before KERN, NEBEKER and MACK, Associate Judges, in chambers.

NEBEKER, Associate Judge:

Appellee seeks costs and damages from appellant pursuant to D.C.App.R. 38 which states that this court may award single or double costs and just damages against an appellant whose appeal is frivolous. Appellant contends that appellee is not entitled to such costs and damages because this court, in dismissing the appeal, did not specify that the dismissal was based on the grounds of frivolousness. We hold that appellee's motion for costs and damages pursuant to D.C.App.R. 38 is proper and that, because the appeal was frivolous, appellee should be granted single costs.

I

In January 1977, appellee filed a petition for an accounting by appellant, a custodian under the Uniform Gifts to Minors Act.¹ On October 18, 1978, the trial judge issued an order affirming the findings of the Auditor-Master which found appellant had failed to fulfill certain responsibilities under the Act. After judgment was entered against him, appellant filed timely notice of appeal. The appeal was dismissed by this court on July 9, 1979, because of appellant's continued failure to obey the rules of this court regarding the timely prosecution of appeals. On July 30, 1979, appellee filed a motion with this court seeking costs and damages under D.C.App.R. 38 and costs under D.C.App.R. 39(a). Appellant filed a motion to strike appellee's motion,² as well as a motion to remand the matter for entry of settlement in the Superior Court.³ Having examined the record and considered the various issues raised in appellant's Civil Appeal Statement, we have concluded that the appeal was frivolous and very likely interposed for delay.⁴

We now turn to the question whether appellee is, entitled to relief under D.C. App.R. 38 which states that "[i]f this court shall determine that an appeal is frivolous it may award just damages and single or double costs to the appellee." D.C.Code 1973, § 11-743, provides this court "shall conduct its business according to the Federal Rules of Appellate Procedure unless the court prescribes or adopts modifications of those Rules." D.C.App.R. 38 is essentially identical to Fed.R.App.P. 38. While this court is not bound by the federal courts' interpretations of federal rules essentially identical or similar to our rules, those interpretations may be accepted as persuasive authority in interpreting our rules. Bazata v. National Insurance Co. of Washington, D.C.App., 400 A.2d 313, 314 n. 1 (1979); Campbell v. United States, D.C.App., 295 A.2d 498, 501 (1972). The various circuits have invoked Fed.R.App.P. 38 to award appellees costs and damages against appellants who filed frivolous appeals. See, e. g., United States v. Certain Land in Squares 532 and 570, 153 U.S.App.D.C. 383, 473 F.2d 94 (1972); United States v. Santa Fe Engineers, Inc., 567 F.2d 860 (9th Cir. 1978); Simon & Flynn, Inc. v. Time, Inc., 513 F.2d 832, 834-35 (2d Cir. 1975); Northcross v. Board of Education of Memphis City Schools, 489 F.2d 19, 20 (6th Cir. 1973), cert. denied, 416 U.S. 962, 94 S.Ct. 1982, 40 L.Ed.2d 313 (1974); Clarion Corp. v. American Home Products Corp., 494 F.2d 860, 865-66 (7th Cir.), cert. denied, 419 U.S. 870, 95 S.Ct. 128, 42 L.Ed.2d 108 (1974); Local 2, International Brotherhood of Telephone Workers v. International Brotherhood of Telephone Workers, 416 F.2d 414, 416 (1st Cir. 1969). Furthermore, this court has, in the past, awarded appellees costs and damages pursuant to D.C.App.R. 38. Pine View Gardens, Inc. v. Jay's Frosted Foods, Inc., D.C.App., 299 A.2d 536, 537 (1973) (frivolous appeal dismissed and appellant assessed costs, if any, and $100 damages as reimbursement for appellee's attorney's fees); Tolson v. Handley Ford, Inc., D.C.App., 304 A.2d 634 (1973) (frivolous appeal dismissed and appellant assessed double costs, if any). Finally, it should be noted that many state courts have similar authority to award appellees costs and damages where the appeal is frivolous or interposed for delay. See, e. g., Hugh Kelly Enterprises, Inc. v. Ferry-Morse Seed Co., 118 Ariz. 392, 577 P.2d 1 (1978); In re Marriage of Schwander, 79 Cal.App.3d 1013, 145 Cal.Rptr. 325 (1978); In re Estate of Perini, 34 Colo.App. 201, 526 P.2d 313 (1974); Egerton v. Jolly, 133 Ga. App. 805, 212 S.E.2d 462 (1975); Manchester Insurance & Indemnity Co. v. Strom, 122 Ill.App.2d 183, 258 N.E.2d 150 (1970); Marshall v. Reeves, 262 Ind. 403, 316 N.E.2d 828 (1974); L. Frank & Co., Inc. v. Devillier's Foodliner, Inc., 365 So.2d 501 (La.App. 1978); Norfolk County Trust Co. v. Vichinsky, 5 Mass.App. 768, 359 N.E.2d 59 (1977); In re Estate of Greening, 9 Mich.App. 22, 155 N.W.2d 696 (1967); McGee v. Clark, 346 So.2d 914 (Miss.1977); Branson v. Jordan, 571 S.W.2d 707 (Mo.App.1978); Heller v. Osburnsen, 169 Mont. 459, 548 P.2d 607 (1976); R.J. Berke & Co. v. J.P. Griffin, Inc., 388 A.2d 1260 (N.H.1978); Anderson v. Jenkins Construction Co., 83 N.M. 47, 487 P.2d 1352 (1971); Blue Arm v. Volk, 254 N.W.2d 427 (N.D.1977); Stirling v. Dari-Delite, Inc., 262 Or. 359, 494 P.2d 252 (1972); Bevil v. Brakatselos, 516 S.W.2d 209 (Tex. Civ.App.1974); Nationwide Mutual Insurance Co. v. Tuttle, 208 Va. 28, 155 S.E.2d 358 (1967); Mader v. Stephenson, 552 P.2d 1114 (Wyo.1976). It is clear that the assessment of costs and damages against parties who file frivolous appeals is a well-established practice.

Awarding appellees costs and damages against appellants who bring frivolous appeals has a two-fold purpose: (1) protecting appellate dockets from unmeritorious cases which delay the hearing of cases with merit, and (2) compensation of appellees for the unwarranted loss resulting from the delay and added expense caused by frivolous appeals. See Advisory Committee's Note to Fed.R.App.P. 38, 43 F.R.D. 155 (1967); Clarion Corp. v. American Home Products Corp., supra at 865-66; Fluoro Electric Corp. v. Branford Associates, 489 F.2d 320, 326 (2d Cir. 1973); Wright v. Sprague, 563 S.W.2d 165, 166 (Mo.App. 1978); see also 20 C.J.S. Costs § 372. As professionals and officers of this court, members of the District of Columbia Bar have the obligation to exercise their independent professional judgment to determine whether a civil appeal is frivolous before filing one. Proper representation of one's client does not include the blind prosecution of appeals without objective appraisal of merit and frank discussion with the client as to his risk if the appeal is frivolous. In these days of crowded court dockets and limited judicial resources, counsel should not file a frivolous appeal merely because their client insists they do so, or seems willing to pay to keep the controversy alive. Frivolous appeals waste the time and resources of this court, delay the hearing of cases with merit and cause appellees unwarranted delay and added expense. The filing of a frivolous appeal by counsel does not constitute the exercise of independent professional judgment and ought not be tolerated by busy courts with compelling public responsibilities. We leave open the question whether, under appropriate circumstances, counsel might be subject to disciplinary action for filing an obviously frivolous civil appeal. We do wish to take this opportunity to make clear that the filing of a frivolous appeal may result in the appellant being assessed just damages in the form of appellee's attorney's fees and other reasonable expenses an appellee may incur because of the frivolous appeal.

Damages an appellee may recover include, but are not limited to, additional interest on the judgment. In these times of recurrent inflation, we see no reason why this court may not take judicial notice of the fact that unwarranted delays caused by frivolous appeals can reduce the effective recovery by an appellee because of inflation. Cf. District of Columbia v. Barriteau, D.C.App., 399 A.2d 563, 566-69 (1979) (jury may consider impact of future inflation in arriving at future loss of income in personal injury cases). Awarding appellees additional interest on their judgments would serve the dual purpose of compensating appellees for the unwarranted loss resulting from the delay caused by frivolous appeals, and deterring appellants who might consider filing such appeals to postpone the time when they have to satisfy the judgments against them.⁵ It would be unfortunate if this court refused to act when a calculating litigant filed a frivolous appeal in order to take advantage of the effects of inflation and the lagging statutory rate of interest on judgment.

Although appellee's motion for costs and damages was filed after the appeal had been dismissed, this court has the jurisdiction to consider and grant her motion. Under D.C.App.R. 39(a), costs will be awarded to the appellee where the appeal is dismissed, unless otherwise agreed by the parties or ordered by this court. D.C.App.R. 39(f) states that the clerk of this court shall insert the amount of costs allowed in this court in the body of the mandate sent to the trial court. Finally, D.C.App.R. 39(g) indicates that costs on appeal are taxable in the Superior Court. In contrast, D.C. App.R. 38 is silent on how or when damages and costs awarded thereunder are to be determined.

We hold that the timing language of D.C.App.R. 39(f) and the taxation of costs language of D.C.App.R. 39(g) are not to be read into D.C.App.R. 38. First, D.C. App.R. 38 is a rule distinct and independent from D.C.App.R. 39. Second, the entry of a judgment or order by this court and the taxation of costs or damages are separate legal acts. See Maryland Casualty Co. v. Jacobson, 37 F.R.D. 427, 430 (W.D.Mo.1965). Cf. Dorothy K. Winston & Co. v. Town Heights Development, Inc., 68 F.R.D. 431,...