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Nepanuseno v. Hansen11/23/2004
tice of appeal or an appellate brief certifies that, to the best of the attorney's knowledge, information, and belief after reasonable inquiry, the notice of appeal or brief is (1) well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law; and (2) not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. For a violation of the rule, the appellate court may impose sanctions upon the attorney. I.A.R. 11.1; Painter v. Potlatch Corp., 138 Idaho 309, 63 P.3d 435 (2003). In Painter, the Idaho Supreme Court concluded that the issues raised by the appellant had dubious factual or legal foundations, and that none might in good faith call for change or adjustment in existing law, but the Court nevertheless declined to award sanctions because the second prong of Rule 11.1--that the appeal was brought for an improper purpose--was not also satisfied. Id. at 315, 63 P.3d at 441. Accordingly, under Painter, a request for sanctions requires that this Court consider whether both prongs of Rule 11.1 have been violated.
The appeal in the present case is patently frivolous. Casual review of the record shows that the jury's verdict was abundantly supported by the evidence. Therefore Nepanuseno's challenge to the denial of his motion for a new trial is not well grounded in fact nor warranted by existing law, and Nepanuseno makes no argument for any modification or reversal of applicable law. With regard to the portion of the appeal challenging the district court's award of sanctions against counsel, the appellant's brief does not even address the district court's grounds for the award. Therefore, counsel's signature on the notice of appeal and briefs violated the first certification under Rule 11.1.
The second question is whether the appeal was interposed for an improper purpose. In his reply brief, Nepanuseno did not respond to Hansen's request for sanctions under I.A.R. 11.1, nor did he express any reason why we should not conclude that the appeal was brought for an improper purpose. We cannot attribute this meritless appeal to mere overzealous representation of the client; in our view, no reasonable attorney examining the record would come to the conclusion that bringing an appeal would appropriately serve the plaintiff. We cannot discern any proper purpose for this appeal. Therefore, we will award sanctions against Nepanuseno's counsel under I.A.R. 11.1 for costs and attorney fees incurred by Hansen on appeal.
III. CONCLUSION
The district court did not abuse its discretion in denying Nepanuseno's motion for a new trial nor in awarding sanctions against Nepanuseno's counsel for violation of the pretrial order. Accordingly, the order of the district court denying the motion is affirmed. Costs and attorney fees are also awarded on appeal against Nepanuseno and his counsel, Richard D. Vance.
Judge PERRY and Judge GUTIERREZ CONCUR.
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