Order in the courts: the ongoing challenge of safeguarding against frivolity and extortion.

• Author: Clermont, Woody Robert
• Position: Appellate Practice

You are defending a client who is being sued for specific performance of a real estate sales contract gone wrong. The plaintiff alleges that your client agreed to sell real property on terms to which your client never agreed. He is seeking a conveyance of the property, and he has filed a notice of lis pendens in order to cloud the title. The lis pendens has chased away other potential buyers, caused any would-be lenders to refuse to approve any loans for the property's purchase, and dissuaded potential title insurers from insuring the title. The Case-Shiller Home Price Index has just reported its largest drop in U.S. history due to the housing bubble. Your client is nervous because the property's value is decreasing daily.

The case goes to trial, and the court finds in your client's favor, entering final judgment on her behalf. The court awards attorneys' fees, costs, and additional equitable compensatory relief as part of the judgment, but the plaintiff immediately files an appeal. The appeal appears to be groundless and is merely a stall tactic to prolong the lis pendens, which has not been discharged. After granting numerous extensions of time to file the initial brief, the appellate court finally dismisses the appeal. Even though the reason for the dismissal was merely a technical one (failure to file the initial brief), is there a recourse?

The Prohibition Against Frivolous Actions and Appeals

Florida lawyers have both ethical and statutory duties not to file actions--including appeals--that are not supported by the application of the governing law. (1) The ethical duty prohibiting "frivolous" proceedings is imposed by Rule 4-3.1 of the Rules Regulating The Florida Bar. (2) Florida Rule of Appellate Procedure 9.410 likewise provides:

After 10 days' notice, on its own motion, the court may impose sanctions for any violation of these rules, or for the filing of any proceeding, motion, brief, or other paper that is frivolous or in bad faith. Such sanctions may include reprimand, contempt, striking of briefs or pleadings, dismissal of proceedings, costs, attorneys' fees, or other sanctions.

In Basan v. State, 560 So. 2d 391 (Fla. 1st DCA 1990), the First District imposed sanctions against an attorney who failed to file a record on appeal or an initial brief, and failed to respond to an order to show cause why sanctions should not be imposed against him. However, the district court's sanctions were limited to a restriction of counsel's ability to practice before the First District, a reprimand of counsel and referral of the matter to The Florida Bar grievance committee, and dismissal of the appeal. (3)

The appellant in Basan was a criminal defendant. (4) In civil actions, by contrast, the focus shifts from the balance between the rights of criminally accused defendants to access to courts and effective representation, to the effect frivolous litigation has on ultimately prevailing parties by draining their resources. In this context, both defendants who must defend against frivolous actions and plaintiffs who must contend with frivolous defenses have equal access to the remedy of F.S. [section]57.105 (2009). (5)

Appellate Attorneys' Fees Under [section]57.105(1)

Attorneys' fees are awarded under [section] 57.105(1) when there is a total or absolute lack of justiciable issues of either law or fact, which is tantamount to a finding that the action (even in part) or defense is virtually frivolous or completely untenable. (6) Although a claim may not have been frivolous when initially filed, amendments made to [section] 57.105 in 1999 make clear that failing to discharge a party when it becomes evident that there no longer is a justiciable claim or defense may also subject a litigant to the penalties of [section] 57.105. (7) The 1999 amendments also removed the requirement that the party moving for fees...