Friday, April 16, 2021

10 Major Errors The Appellant Attorney Made With Her Filing, Number 2 Will Shock You!

I won a landlord-tenant case at a Zoom trial earlier this year on behalf of the landlord and received a nice $19,000 judgment for unpaid rent as well as possession back. Tenant lied her tail off in court and it was readily apparent to everyone, not to mention her own text messages to the landlord contradicted her claims in court.

The attorney on the other side was, well, interesting would be a word. 

She's a newer attorney and did some questionable stuff at trial.  This included appearing for trial from her car and often having her video off, which is professional as all heck.  She also added exhibits during trial which is not allowed, and she kept trying to confuse the actual issues that were at trial. But, I still won handily.

She then filed a motion for reconsideration after the judgment, but she filed it late, and she never served me with it.  

These are two major problems. 

This combination of non-service and lack of filing timeliness would be a recurring practice.

The first moment that I learned she had filed the motion was when the judge sent out an order dated March 9, 2021 denying it as it was a complete failure of a motion and didn't actually conform to the rules regarding a motion for reconsideration.  

In short, it was a word salad bringing up things that were never litigated. This too would be a recurring practice.

Her appeal starts off with quite a fatal flaw - she's a day late, and more than a dollar short.  The last day she could file an appeal is 21 days after the denial on March 9, so March 30 was the cut off, not  March 31.  She missed it by that much. That alone should get it kicked.

Next, I found out that she has filed an appeal only when I get an email from her on April 8 that she had filed an appeal on March 31. No, you cannot file an appeal and wait a week to serve the other side.  You also cannot falsely put on your claim of appeal that you served the other side on March 31 when you did not.

I look through the appeal and it is absolutely done wrong.  The claim of appeal form itself alone has 5 major false statements made on it.  

She even has the parties listed wrong on the form with her client as the plaintiff rather than the defendant. No can do.

She fails to even file the order/judgment she is appealing from, while falsely stating that she had.  She fails to order the transcript, while falsely stating that she had. She even claims she filed a bond and filed an empty bond form with no actual bond, so she's lying about that too.

But wait, there's more!

She files a brief that is totally in the wrong format, and as you can guess it was a word salad almost completely bringing up things that were never litigated in court.

You cannot expand issues beyond what was litigated at the trial court.  You cannot come up with new arguments that you never raised at the trail court.  An appeal is not a do-over, it's supposed to fix any errors a lower court judge may have made.  You cannot make new arguments you never raised before and expect an appeals court to deal with them.  Her appeal is 95% new arguments and new "facts".

She also files exhibits with her appeal that were never filed in the trial court at trial. No, that's really not allowed either.

I point out to her that her appeal is totally wrong and a frivolous appeal and she can't wait a week to serve me with it while claiming to the court she served me a week before. She doesn't care.

So, I draft and file a motion on Wednesday pointing out all these issues to the court and ask her appeal to be dismissed for all these errors or at least all the documents with the errors be stricken which would do about the same thing.  

The court is currently requiring everyone to email for a hearing date rather than the next Wednesday as is normal.  I email after filing the motion Wednesday morning, and the Judge's Clerk replies back in the afternoon that he's working on an order and will get it to me soon.

An hour later, on Wednesday afternoon, I get an order from the Court.

The order does not set a hearing date. 

Instead, the Court issued an order completely dismissing her appeal without a hearing, using the proper caption for the appeal right from my motion.

This almost never happens. Normally, the other side gets to file a response and we argue it on the record.  Her appeal was so bad the Court had the authority to, and did, simply dismiss it out of hand after these issues were pointed out.

Wish I was a fly on the wall when she gets to explain to her lying client why her appeal was dismissed.


MrGarabaldi said...

Hey Aaron;

Can't you report her to the BAR association for questionable behavior? Just wondering...

Comrade Misfit said...

Could you have asked for an award of attorney's fees for the time it took to respond to her bullshit?

Aaron said...

MrGarabaldi: No unfortunately, being an idiot is not a grievable offense.

Comrade Misfit: I did indeed request attorneys fees, costs and sanction sunder the appellate rules as it fully fit the definition of a vexatious pleading. Court did not mention it in the order and so declined to award any fees.

Pigpen51 said...

For the sake of the legal system, it would seem that it would be helpful if this young lawyer learned her craft, quickly. Not to mention her clients.
I went through a divorce back in 1990. My ex and I actually agreed on most things, so I hired a lawyer, she went with me, and we set got a court date. My first mistake was in getting a female lawyer. I know, chauvinistic. But in this case, spot on. I asked the lawyer in our meeting if I could claim my 3 kids that I was paying child support for, on my income tax forms. She told me no, that was not legal. She was mistaken. My ex let me claim them for the first couple of years, until she remarried, then bam, no more.
Then my lawyer showed up to court late. After we were called, she acted like it was the Scopes monkey trial or something, while it took place in White Cloud, Mi, which you might know is a tiny little court house, with fairly down to earth people. The Judge of course was given due respect, but he really didn't need her to bow her head to him when she handed him my paperwork. It felt like I was living in London during the 1800's.
After everything was done, I also remarried a few years later. Just for fun, I took my judgement of divorce to a different lawyer, here in Muskegon. He looked at the paperwork, and quickly said two things.
" J.C. you sure got screwed." Only he used all of the colorful language. And then, " there is not a damn thing I can do for you."
As nothing but a plain foundry worker, since I had to work a lot of hours to support her and my 3 kids, so I really didn't have time to do much else, I ended up figuring out that I paid her over 137,000$ in child support. Over the course of 17.5 years. Plus giving her the entire equity of our home, and it's contents.
I learned my lesson. When my father passed away, around 7 years ago, with my being the executor, I hired the best lawyer I could find, with money not even being a part of the discussion. It was the biggest learning experience of my life. When it comes to legal advice, you always get what you pay for. This time, my lawyer was worth every single penny, and then some.