Bresky Law Successfully Obtains Leave to Add New
Issues to Initial Brief on Appeal After Opposing Counsel Threatens Sanctions*
Bresky Law represented a former homeowner in the Fourth District Court of Appeal in an appeal from a final judgment of foreclosure. Our office filed an Initial Brief on the homeowner’s behalf that raised two issues for the appellate court’s consideration. Opposing counsel served a “21-day letter” under section 57.105., Fla. Stat. threatening to file a motion for sanctions under that statute if we did not amend the Initial Brief to omit the first issue.
Our office decided after careful consideration that the first issue in the Initial Brief was not frivolous and did not form a proper basis for sanctions. However, we concluded that the issue was likely harmless error that would not result in reversal. Additionally, the re-evaluation of the case by our office revealed two new issues that we decided to attempt to include in the Amended Initial Brief. The issues had not been addressed before due to our office having been supplied incorrect information regarding the existence of certain hearing transcripts.
We therefore filed a motion in the appellate court explaining the situation, including opposing counsel’s 57.105 letter, and seeking leave to file an Amended Initial Brief that dropped the first issue but included the two new issues. We included the Amended Initial Brief with the motion. Opposing counsel opposed the motion for leave to file the Amended Initial Brief by arguing that Appellant had no right to amend the Initial Brief to include new issues, that it was Appellant’s counsel’s obligation to obtain transcripts, and that transcripts were immaterial to the new issues.
The court of appeal granted our motion to file the Amended Initial Brief, and deemed the Amended Initial Brief, including the new issues, filed as of the date of the court’s order granting the motion. This ruling benefits our client and should serve as a warning to appellate practitioners about the potential negative consequences of overzealous use of sanctions threats under section 57.105, Fla. Stat.
*The case is still pending in the appellate court as of this writing.