When I first began reading this case, I was slightly disinclined to think that the appeal was frivolous and hence sanctionable, even though Justice Premo says on the first page that's where he's ending up. Meritless? Yes. Frivolous? Doubtful, I thought.
But when I read the opinion, I concluded that, yep, he's right. Plaintiff's appealing a loss at a bench trial on essentially factual issues, asserting that the trial court erroneously found that his written employment contract was subsequently modified. But not only, from what I can tell, is the defendant (and the trial court) probably correct on that issue, since it did indeed seem modified based on the evidence at trial -- and we grant lots of deference to trial court factual and credibility findings -- but the plaintiff didn't even include a transcript of the trial as part of the appeal. Given that fact, it does seem crazy to argue that the trial court's conclusion was erroneous; you can't prove that stuff without a transcript. So, as Yoda would say, frivolous the appeal is.
So in the end, I agree with Justice Premo. I also think the amount of the sanction seems right. Almost nine thousand in attorney's fees to the other side. More than reasonable; most appeals cost even more than that. Plus $6000 to the Court of Appeal, which is less than the average cost of $8500 for a published opinion. Spot on.
I'll nonetheless suggest one revision. Justice Premo sanctions the appellant, Foust. But Foust has a lawyer, and it's the lawyer -- not the client -- who's principally responsible for knowing that you've got to include a transcript if you're making this type of factual challenge on appeal. Maybe the client's responsible for that error as well since he hired the lawyer. But the lawyer's surely responsible as well. So I'd either sanction only the lawyer (on the theory that that's the one at fault) or the lawyer and client jointly and severally. I wouldn't just impose sanctions on the client. Particularly for an error like this.
