by Mark Ritchie, Law Office of Mark Ritchie, P.C.

The question of how best to deal with frivolous appeals is a persistent one. For decades, commentators and practitioners alike have bemoaned the prevalence of such appeals, noting with dismay their habit of “consuming [scarce] judicial resources, delaying justice, increasing costs, and wasting the time of courts and litigants alike.” Identifying the Frivolous Appeal, 10 App. Advoc. 11, 11 (Feb. 1997). Despite this, our state has shown relatively little interest in minimizing the impact of such appeals. No doubt this is at least partially due to a tacit understanding that appellate practitioners will hold themselves to more exacting standards, not wasting the courts’ precious time with arguments that are weak, silly, or otherwise ridiculous. Cf. Warren D. Wolfson, Oral Argument: Does It Matter?, 35 Ind. L. Rev. 451, 454 (2002) (discussing in the context of oral argument the necessary, unspoken agreement that lawyers “must not argue weak, silly, or frivolous issues [which only] dilute the strength of serious matters”).

Given that the total number of appellate filings has dropped in recent years, the issue of frivolous appeals may not seem a particularly pressing issue. See Annual Statistical Report for the Texas Judiciary: FY 2015, at 54 (noting that the number of new cases filed in the courts of appeals was at a 20-year low, with a four percent drop in the total number of filings compared to the previous year). However, the current approach tends toward a crude, all-or-nothing effort to weed out appeals that are entirely frivolous, with relatively little attention being focused on the more common practice of including frivolous arguments on appeal.

The Current Focus – Entirely Frivolous Appeals

Texas Rule of Appellate Procedure 45, which was adopted nearly 20 years ago, is the current rule explicitly addressing frivolous appeals. The language of the rule is surprisingly succinct (a mere 67 words in total) and is set forth below in its entirety:

If the court of appeals determines that an appeal is frivolous, it may–on motion of any party or on its own initiative, after notice and a reasonable opportunity for response–award each prevailing party just damages. In determining whether to award damages, the court must not consider any matter that does not appear in the record, briefs, or other papers filed in the court of appeals.

By adopting Rule 45, the subjective requirement of bad faith was eliminated under Texas law, leaving only the objective merits to be considered by the courts of appeals. E.g., Glassman v. Goodfriend, 347 S.W.3d 772, 782 (Tex. App.—Houston [14th Dist.] 2011, pet. denied). Under the rule, an appeal is deemed frivolous when the court’s review of the record reveals no reasonable grounds for belief that the case could be reversed on appeal. E.g., Becker-White v. Goodrum, 472 S.W.3d 337, 341 (Tex. App.—Houston [14th Dist.] 2015, pet. denied).

This shift to a completely objective standard is certainly an improvement, as litigants no longer have to prove that the appellant was motivated by subjective bad faith in deciding to take the appeal. See Glassman, 347 S.W.3d at 782 (discussing requirements under former Texas Rule of Appellate Procedure 84). However, cases interpreting Rule 45 indicate that sanctions are appropriate only when the entire appeal is found to be frivolous, i.e., the appellant fails to raise any issue providing an arguable basis for reversal. See, e.g., Becker-White, 472 S.W.3d at 341 (holding that record must reveal no reasonable grounds for belief that case could be reversed). Arguably, then, no relief is available under Rule 45 to an appellee forced to counter multiple frivolous arguments so long as the appellant makes sure to brief a single legitimate issue in the process. A particularly unscrupulous appellant might abuse this safe harbor by deliberately including weak arguments, padding out the brief in an effort to put the appellee to additional effort and expense.

Frivolous Appeals v. Frivolous Arguments

I think it is fair to assume that my experience is not unique, and that sooner or later most appellate lawyers will find themselves dedicating substantial time and effort to refuting arguments that are simply, inexcusably, breathtakingly wrong. This is more or less de rigueur when dealing with a pro se litigant, but I have often found myself sifting through inscrutable and, at times, wholly incoherent arguments written by experienced attorneys who really ought to know better. While it is probably not too much to ask that we address the occasional weak, throwaway argument without complaint, there should be consequences for appellants who force other parties and our courts to spend hours deciphering page after page of what can only be described as unadulterated nonsense.

At the very least it seems reasonable to revise Rule 45 to prohibit both frivolous appeals and the inclusion of discrete frivolous arguments on appeal. Admittedly, there is already a mechanism for seeking sanctions against an attorney who includes frivolous arguments, as they are prohibited by Rule 3.01 of the Texas Disciplinary Rules of Professional Conduct. See Tex. Disciplinary Rules Prof’l Conduct R. 3.01 cmt. (discussing prohibition against asserting a frivolous position on appeal); Edward L. Wilkinson, If One Is Good, Two Must Be Better: A Comparison of the Texas Standards For Appellate Conduct and The Texas Disciplinary Rules of Professional Conduct, 41 St. Mary’s L.J. 645, 671 (2010) (noting the applicability of Rule 3.01 to discrete issues on appeal). While such relief is at least theoretically available, in practice the courts of appeals are unwilling to impose such sanctions in all but the most extreme cases. See, e.g., Baker Hughes Oilfield Ops., Inc. v. Hennig Prod. Co., 164 S.W.3d 438, 448 (Tex. App.—Houston [14th Dist.] 2005, no pet.) (explaining that appellate sanctions are discretionary, and are imposed “only under those circumstances we find truly egregious”).

The historic restraint exhibited by the courts is both understandable (given that more frequent use of sanctions would almost certainly spawn more argument over their imposition) and admirable (in light of the general reluctance to deprive any party of access to appellate review). Still, the issue of frivolous arguments on appeal should be carefully considered. It’s time to develop a less binary approach, one that minimizes waste by eliminating opportunities for abuse.