July 23, 2019

Colorado Court of Appeals: Briefs Stricken and Appeal Dismissed for Uncivil Language and Failing to Comply with Appellate Rules

The Colorado Court of Appeals issued its opinion in Martin v. Essrig, and Concerning Carroll on August 4, 2011.

Civility—C.A.R. 38(d) and (e)—CRS § 13-17-102—Attorney Fees—Sanctions.

Paul Essrig (tenant), a former tenant of a residence owned by Bernie Martin (owner), appealed the district court’s denial of his C.R.C.P. 60(b)(3) motion challenging as void a judgment in owner’s favor on a claim that tenant had breached the parties’ lease. Tenant and his counsel, David Carroll, also challenged the district court’s award of attorney fees incurred by owner in responding to the motion. The appeal was dismissed and the case was remanded with directions.

Owner argued that tenant’s briefs should be stricken, the appeal dismissed, and other appropriate sanctions imposed because tenant failed to comply with the appellate rules governing the form and content of briefs and because tenant’s opening brief contained “inappropriate and unprofessional commentary.” In rare cases, conduct in prosecuting an appeal is so contrary to court rules and so disrespectful of the judicial process and its participants that the right to appellate review is forfeited.

Here, Carroll filed briefs supporting this appeal, which largely failed to advance a coherent argument in support of the contention of error. Most troubling, however, was the tenor of the opening and reply briefs. They were suffused with uncivil language directed primarily against owner’s attorneys, and were filled with sarcastic and bombastic rhetoric. This was bad advocacy and in large part inconsistent with Carroll’s professional obligation to represent his client in a civil manner. Therefore, the opening and reply briefs were stricken, the appeal was dismissed, attorney fees and double costs were assessed against Carroll, and the case was remanded to the district court for a determination of the reasonable attorney fees owner has incurred on appeal.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on August 4, 2011, can be found here.

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