Associates’ Corner: Using Appellate Review to Stall the Litigation Process: Can You Fight Back?
By Kluger Kaplan February 28, 2013
By Jamie L. Zuckerman
Recently I have been involved in a couple of cases where the appellate process has been utilized to stall civil court proceedings. This usually involves the appeal of an interlocutory order or the appeal of a final judgment when post-judgment enforcement issues remain. Once your opponent moves to stay the trial court proceeding, the appeal can serve as a delay tactic.
These tactics can be used to exhaust the financial resources of your client, make the recollection of actual events less clear with the passing of time, and/or delay payment of an inevitable judgment. For example, in one case, on the eve of trial, our opponent filed three interlocutory appeals accompanied by a motion for stay and a motion to continue the trial. In another, we obtained a favorable verdict for our clients whose post-judgment proceedings have now been frustrated due to a pending appeal.
Effectively utilizing motion practice is a way to combat these roadblocks. If your opponent is appealing the enforcement of a money judgment, one of the first things you should do is file a motion to set bond. Civil litigants will have to post a bond or other security if they want to stay the enforcement of many types of trial court judgments while an appeal is ongoing, especially those involving monetary damages.
Where appropriate, you can move the appellate court for limited relief from stay in order to partially lift the stay in the trial court. This vehicle enables the appellate court to relinquish jurisdiction to the trial court so that it may hear issues unrelated to the appeal. But what if an appeal is filed and a stay is granted just before your trial date in an attempt to delay trial? When confronted with this very issue, I filed an emergency motion for limited relief from the stay order, which included a certificate of the existence and nature of the emergency. The appellate court granted the motion the next day and we were able to proceed with limited delay. In my experience the appellate courts are loath to allow the appellate process stall pending litigation. But be wary of filing emergency motions absent a true emergency as courts certainly frown on that conduct.
Another option to consider is moving the appellate court to expedite ruling. Although appellate courts are usually reluctant to find that an individual appeal should take precedence over others, certain cases merit an expedited review. Again, it is crucial to clearly articulate your grounds for such a request so that the appellate court understands your need for an expedited ruling.
It is important to remember that Florida lawyers have both ethical and statutory duties not to file actions — including appeals — that are not supported by the application of the governing law. The ethical duty prohibiting “frivolous” proceedings is imposed by Rule 4-3.1 of the Rules Regulating The Florida Bar. Florida Rule of Appellate Procedure 9.410 likewise provides:
“After 10 days’ notice, on its own motion, the court may impose sanctions for any violation of these rules, or for the filing of any proceeding, motion, brief, or other paper that is frivolous or in bad faith. Such sanctions may include reprimand, contempt, striking of briefs or pleadings, dismissal of proceedings, costs, attorneys’ fees, or other sanctions.”
Appellate review is essential to the proper functioning of the judicial system but its integrity is compromised by intentional attempts to stall proceedings. Litigants should know that they are not helpless in the face of manipulation as there are ways to combat these tactics and keep your case moving through the trial court.