Once Is Enough

The Idaho Supreme Court imposed sanctions on an attorney for pursuing a frivolous appeal

We conclude that this case presents a textbook example of an appeal that was pursued in violation of Rule 11.2, and that attorney fees should be awarded against appellant’s counsel personally as a sanction. Vernon K. Smith, the Drinkards’ counsel, has shown a penchant for disregarding Idaho Appellate Rules, and his failure to abide by this Court’s prior admonitions warrants a sanction in this case.

The merits (or lack thereof)

The Drinkards’ claims are not well-grounded in fact, nor are they warranted by existing law or an extension thereof. First, the Drinkards’ appeal contains little in the way of legal argument or authority The Drinkards’ brief fails to include appropriate citations to the record or a comprehensible argument. Large swaths of the Drinkards’ argument are merely block-quoted statutes or lengthy sections of cases with little attempt at a cogent argument explaining the applicability to the facts of the case. Second, Smith asks this Court to disregard existing law—not based on a good faith argument to reverse that law—but because he disagrees with how this Court applied the law in a case in which he was a party. Disagreeing with this Court is not a sufficient reason to disregard precedent or to advocate that this Court do so. Appellate arguments must be “warranted by existing law . . . .” Id. Smith pursued this appeal against Alpha even though he had litigated the very case that decided principles of law against his position here. Smith II, 164 Idaho at 53, 423 P.3d at 1005. He was thus aware that the issues on appeal have been settled directly against his position in this case. Pursuing the appeal anyway is frivolous and a waste of time and needlessly increased the cost of litigation for Smith’s clients and for Alpha.

The court noted prior warnings but

As noted, these warnings included admonitions not to simply argue positions against what had been decided by this Court previously.

Now, Smith appeals to this Court, representing the Drinkards, raising the exact issues on which this Court has ruled against him before. Smith asks this Court, in effect, to second-guess the holding we reached in Smith II, a case, as we have noted, in which he was a party. But the Drinkards’ case by any other name is still the same argument. On our own motion, we may award fees and costs against both the party and the party’s attorney who have violated Rule 11.2. We have done this before in a case involving Smith. Still, Smith continues to flout Idaho Appellate Rules and the standard for good faith appeals. As such, the Drinkards’ appeal was filed in direct contravention of I.A.R. 11.2(a); it was frivolous, unreasonable, and without foundation. For these reasons, the Court sanctions Smith by requiring him to personally pay Alpha’s attorney fees and the costs Alpha incurred in defending its position in this appeal.

(Mike Frisch)