ANOTHER WAY TO FLOP ON APPEAL

February 28, 2013 § 4 Comments

Vinh Nguyen entered into a contract with Dustin and Roslyn Gifford to purchase real estate. When Vinh refused to purchase the property, the Giffords sued for breach of contract.

Vinh filed no responsive pleading to the suit and made no appearance, and the Giffords applied for entry of default. They obtained a default judgment in which the court ruled that the parties had entered into a valid contract, but that Vinh had failed to perform, so that the Giffords were entitled to specific performance, or $375,000, plus $2,000 earnest money, if Vinh failed to perform within thirty days, plus nearly $17,000 in attorney’s fees. The judgment was to be reduced if the Giffords sold the property.

Four months later Vinh filed a motion to set aside the judgment, which the court denied. The court did, however, reduce the judgment by $275,000, because the Giffords had sold the property.

Vinh appealed, raising four issues that certainly appear to have some meat on them:

  1. Whether Vinh’s contact with the Giffords’ lawyer to tell him that the claim was contested triggered the 3-day notice requirement of MRCP 55(b);
  2. Whether there was valid service of process on him;
  3. Whether a lawsuit was proper due to an arbitration agreement; and
  4. Whether Roslyn Gifford was entitled to a judgment since she never signed the contract.

Some quite pithy points, to be sure. Any of the first three could undoubtedly lead to a reversal and remand if upheld. So how did the appellate court resolve them?

Well, we’ll never know for sure, because Vinh’s brief on appeal cited no authorities at all. Not a single one. The COA, in a 9-1 decision, pointed out that “Failure to cite authority in support of claims of error precludes this Court from considering the specific claim on appeal.” The court found that it was procedurally barred from considering the unsupported issues on appeal, and affirmed the chancellor’s ruling.

It should go without saying that the purpose of an appeal is to persuade the learned appellate judges that the trial judge has made some error of law. To do that, one must cite some supportive case law, statute, regulation, court rule, learned treatise, or other recognized legal authority that bears up one’s position.

Without that authority, your client will go the way of Mr. Vinh, to that dark place where one goes to ponder the burden of a $117,000 judgment, with interest, and without further recourse, except against his own lawyer.  

 

Tagged: ,

§ 4 Responses to ANOTHER WAY TO FLOP ON APPEAL

  • thusbloggedanderson says:

    My first guess was “pro se.” But no.

    If it’s not legal malpractice to file a brief that cites no authorities, then I’m not quite sure what malpractice is. Not that I’m accusing the lawyer in question of malpractice. I’d just be curious why it’s NOT malpractice.

    (The MRAP that says you have to have a “table of authorities” is a big tipoff.)

    • Larry says:

      Not sure if malpractice, but what is the standard of practice for an appellant? Seems to me citing authority in a brief would be a basic criterion, but what do I know???

  • BowTieLawyer says:

    Ouch! I have seen the occasional argument in a brief devoid of authority, but never an entire brief. I wonder what a Writ of Cert with any authority whatsoever and new counsel would do…

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

What’s this?

You are currently reading ANOTHER WAY TO FLOP ON APPEAL at The Better Chancery Practice Blog.

meta

%d bloggers like this: