Part 1: How to Spot a Truly Frivolous Appeal

At the trial level, lawyers throw out the phrase “frivolous and groundless” all the time to describe arguments they don’t like. At the appellate level, however, the term seems reserved for the truly egregious case. There is wide latitude to make arguments on appeal and bring errors to the Colorado Court of Appeals for correction. Every once and a while, however, a truly frivolous appeal will surface. How can you spot one? What do you do in response? In this two-part series, we visit the sordid world of frivolous appeals. Part one of this blog outlines the legal standards for what constitutes a frivolous appeal in Colorado and discusses what can happen if one is filed. Part two then addresses some practical considerations regarding frivolous appeals, including how to avoid filing one in the first place, or how to respond if one is filed in your case.

Frivolous as Filed

There are two ways that appeals may be considered frivolous. First, appeals may be frivolous as filed. An appeal is frivolous as filed “where the ‘judgment by the tribunal below was so plainly correct and the legal authority contrary to appellant’s position so clear that there is really no appealable issue.’”¹ Or, “an appeal is frivolous as filed ‘if the proponent can present no rational argument based on the evidence or law . . . or the appeal is prosecuted for the sole purpose of harassment or delay.’”²

Courts are often hesitant to label an appeal frivolous as filed because, in all but the clearest of cases, there is going to be some rational argument in support of an appeal. Plus, lawyers are permitted to argue for good-faith extensions of the law, so the fact that there is no law on point to support a position is not necessarily dispositive. In addition, the doctrine is not there to trap ineffective lawyers or the unwary pro se appellant. Courts do not want to discourage people from pursuing their appeal as of right. Finally, it is often difficult for the appellate court to make the determination that the appeal is frivolous as filed if it cannot figure out what the litigant is trying to say. Where the brief is that poorly organized or incoherent, courts are more likely to look to the next category, as discussed below.

That being said, occasionally the label is deserved. For example, in one case where a division of the Court of Appeals found an appeal was frivolous as filed, a lawyer had lost on summary judgment after he failed to conduct discovery, chose not to respond to the opposing party’s summary judgment motion or submit any affidavits in opposition to the motion, and did not file an affidavit pursuant to C.R.C.P. 56(f) requesting additional time for discovery.³ The trial court had granted summary judgment and found the case was frivolous and groundless. When the lawyer appealed, the division concluded that the appeal was frivolous as filed.

Frivolous as Argued

Even when an appeal may well be frivolous as filed, courts appear more likely to sanction parties or their lawyers on the ground that the appeal is frivolous as argued. This is the second way an appeal may be deemed frivolous. “An appeal is frivolous as argued where the appellant commits misconduct in arguing the appeal.”⁴ Here are some things that may lead to a holding that the appeal is frivolous as argued:

• Blatantly not following appellate rules

• Attacking the judges on the panel or the trial judge

• Making it personal and being unprofessional toward opposing counsel

• Not actually making a legal argument, but instead, using “tortured rhetoric”

One clear example of the frivolous-as-argued doctrine is Martin v. Essrig. There, the attorney filed briefs violating the appellate rules (it was not the first time this had happened, and the Court pointed this out). The briefs failed “to set forth a cogent argument” and used inflammatory language and numerous inappropriate statements the Court characterized as “degrading and disparaging rhetoric.”⁵

Effect of a Frivolous Appeal

Having an appeal labeled as frivolous comes with severe consequences. Because the appellate court has broad authority to ensure compliance with the appellate rules and to encourage litigants to follow them, it can sanction for a frivolous appeal in a variety of ways.

Striking a Brief and Dismissing the Appeal

Under C.A.R. 38(a), the appellate court has the power to apply any sanctions it deems appropriate when a party fails to follow the rules. One of those sanctions is the forfeit of the right to appeal altogether. If a brief does not present a cogent argument, if it forces the court to wade through extraneous information to even get to the issue, and if it flouts the rules, the Court may decide not to consider the appeal at all. If an appeal is sufficiently frivolous, an appellate court may strike the offending pleadings and dismiss the appeal.

Assessment of Attorney Fees and Costs

Both the Colorado Appellate Rules and the frivolous-and-groundless statute provide a basis for the appellate court to award attorney fees and costs for frivolous appeals. And at the appellate court, it is more likely that those will be assessed against the attorney rather than the client. Because of the nature of briefing and argument, the attorney has a large role in driving the appellate train. And he or she is held accountable for it. There are many cases where the appellate court has awarded appellate attorney fees because an appeal is frivolous. This is one of the main sanctions that will be awarded in such an event. If a case is truly egregious, double costs can also be awarded.⁶

Professional Misconduct

Not only can a frivolous appeal result in sanctions, but some conduct can also lead to professional discipline. Do not be surprised if an attorney’s misconduct before the appellate court results in a call from attorney regulation counsel. This is particularly the case if the Court of Appeals recognizes that an appeal is frivolous as argued because the attorney did not obey the rules of professional conduct in behavior toward the court or opposing parties.

Conclusion

Frivolous appeals can have serious consequences. Now that you know how to spot one in a case, what is the best course of action to take in response? Part two of this series discusses how to react to a frivolous appeal, as well as how to avoid filing one in the first place.

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¹ Averyt v. Wal-Mart Stores, Inc., 2013 COA 10, ¶ 40 (quoting Castillo v. Koppes-Conway, 148 P.3d 289, 292 (Colo. App. 2006)).

² Id. at ¶ 43 (quoting Mission Denver Co. v. Pierson, 674 P.2d 363, 366 (Colo. 1984)).

³ See Rose L. Watson Revocable Trust v. BP Am. Prod. Co., 2014 COA 11, ¶¶ 3-6.

⁴ Martin v. Essrig, 277 P.3d 857, 862 (Colo. App. 2011).

⁵ Id. at 860.

⁶ See C.A.R. 38(b).