What's that old saying that a good lawyer can argue just about anything?  While that may be true, a recent decision by the Sixth District Court of Appeal demonstrates that some arguments are better left not taken.  Sometimes it's probably better to walk away. 

But if taken, a proper record should be designated, or what follows could be quite, well, unpalatable.  For failure to properly perfect the record on appeal can be viewed as evidence that the appeal is frivolous.  And if the Court of Appeal finds the appeal frivolous, it can award sanctions in the form of respondent's attorney fees and fines paid to the court.  That's exactly what happened in Foust v. San Jose Construction Companywhere appellant was ordered to pay $15,000 in sanctions. 

What went wrong?

Foust sued San Jose Construction for breach of an employment agreement.  During a three day bench trial, witness testimony was presented and exhibits admitted.  The trial court ruled against Foust, finding much of his testimony lacked credibility.  Foust appealed, but he failed to designate any reporter's transcripts.  The Court of Appeal had some thoughts on that:

"The fatal problem with this appeal is that Foust fails to provide us with a reporter's transcript from his court trial or any other adequate statement of the evidence."  The court also observed that although there was no way to be sure, it appeared that as many as 107 exhibits could have been admitted at trial, yet Foust designated only two.  After reiterating the presumption of correctness that applies to a judgment or order, the court stated, "If the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed." 

The court then turned to San Jose Construction's motion for sanctions for a frivolous appeal.  "We conclude that sanctions are warranted because Foust's appeal is indisputably without merit."  "The essence of Foust's appeal is that, based on these select documents and his self-serving assertion that he would never agree to modify the [employment] agreement, this court should reevaluate his credibility and [reverse]."  "Without a proper record, there is no way for this court to find that the trial court's conclusions were not supported by substantial evidence."  And "sanctions are also warranted because it appears that Foust has filed his appeal for the improper purpose of harassing San Jose Construction."

The result?  Sanctions including $8,743 in attorney fees payable to the opposing party and $6,000 payable to the court.  Not exactly an occasion for frivolity.