“Hollow In Every Particular”

The United States Court of Appeals for the Seventh Circuit found sanctions appropriate imposed on an attorney and client for a frivolous appeal

the appeal is dismissed for lack of jurisdiction. [lawyer] Provis and [client] Upchurch are jointly and severally liable for the costs and reasonable attorney’s fees incurred in defending the appeal. Within 15 days, the O’Briens and Lucareli may submit an accounting of their fees and costs. The clerk of court shall send a copy of this opinion, and the district court’s sanctions order, to the Wisconsin Office of Lawyer Regulation for any action it deems appropriate.

The court

In short, after making the O’Briens and Lucareli spend time and money dealing with a lawsuit that “should never have seen the light of day,” Upchurch and Provis prolonged this vexatious litigation by requiring them to defend a frivolous appeal challenging the district judge’s sanctions order— “the capstone of litigation that is hollow in every particular.”

Underlying dispute

For years Timothy Upchurch waged a relentless and disturbing campaign of harassment against his neighbors, Timothy and Margaret O’Brien, in a dispute over a claimed easement across their property for access to the shores of Catfish Lake. The local sheriff’s office eventually stepped in, and Upchurch was convicted of disorderly conduct, criminal damage to property, and theft stemming from his trespass on the O’Briens’ property and theft of their security camera. Upchurch retaliated with this suit against the O’Briens, their lawyer, the local district attorney, and three sheriff’s deputies seeking damages under the Racketeer Influenced and Corrupt Organizations Act (“RICO”) for alleged interference with his claimed easement.

The suit was utterly frivolous from its inception. Upchurch does not own an easement over the O’Briens’ property, and the RICO claim was baseless and vindictive, filed only for the purpose of harassment. After about a year of litigation and facing sanctions motions under Rules 11 and 37 of the Federal Rules of Civil Procedure, Upchurch dropped the case. The district judge awarded sanctions and ordered Upchurch and his attorney, Timothy Provis, to pay the defendants’ costs and attorney’s fees.

Upchurch appealed, claiming that the judge was required to hold a hearing before imposing sanctions. The appeal is untimely; we dismiss it for lack of jurisdiction. The appeal is also thoroughly frivolous, so we grant the defendants’ motion for sanctions under Rule 38 of the Federal Rules of Appellate Procedure.

(MIke Frisch)