sunEthics

First DCA imposes section 57.105 appellate fee sanctions on lawyer whose brief raised irrelevant arguments that had already been ruled upon in prior appeal.  [Added 2/2/12]

    Lawyer represented Plaintiff in a medical malpractice case filed in 2007.  Plaintiff voluntarily dismissed the complaint against one defendant doctor and another won on summary judgment.  Plaintiff appealed, and the First DCA affirmed.  In March 2008 the defendant hospital moved for summary judgment “arguing that a legal basis no longer existed to hold it liable under theories of agency and vicarious liability because [Plaintiff] had dismissed Dr. Fleck from the lawsuit with prejudice, and Dr. Li was deemed not negligent by the summary final judgment in his favor.”  Nothing further transpired in the case until July 2010 when the hospital moved to dismiss for failure to prosecute.  Two months later Plaintiff filed an affidavit of a consultant contesting the hospital’s argument.  The trial court found that no genuine issues of material fact existed and rendered final summary judgment for the hospital.

    Plaintiff appealed, filing an amended brief whose points of argument were almost identical to those filed and rejected in the prior appeal.  The First DCA affirmed and ordered Plaintiff to show cause why he and Lawyer should not be sanctioned under Fla.Stat. sec. 57.105(1) and Fla.R.App.P. 9.419(a) for filing a frivolous appeal.

    The appeals court imposed sanctions solely against Lawyer.  The appeal was frivolous.  Lawyer “filed an Amended Initial Brief raising the same issues as those raised and ruled upon in [the prior appeal], relating to the summary judgment entered in favor of Dr. Li.  In fact, it is evident that counsel simply used the brief from the prior case (the same law firm represented [Plaintiff] in that case), and added some argument directed to the trial court’s findings on the lack of record activity and failure to prosecute.  Indeed, the Amended Initial Brief still bears the prior case number.  Not only does [Lawyer] rely on previously made and ruled upon legal arguments wholly irrelevant to the summary judgment entered in [the hospital’s] favor, he presents no argument challenging the legal basis for the judgment.”  Waddington v. Baptist Medical Center of the Beaches, Inc., __ So.3d ___ (Fla. 1^st DCA, No. 1D10-6456, 1/30/2012).

sunEthics is produced by Tim Chinaris, and hosted by Faulkner University, Thomas Goode Jones School of Law.  Please read our disclaimers.  Search our site, or view previously posted summaries using our SUBJECT INDEX.  © 2012