How many times can someone appeal?

[windy1365]

This is a question for any lawyers out there - or anyone that might know. Please don''t give me the advice that I need to get a lawyer b/c I already have one - but, I don''t like him very much b/c everytime I talk to him on the phone, he has to tell me how great he is...which isn''t true.

Background: About three years ago, I broke up with my ex-boyfriend. He refushed to give me my belongings. Then, he started leaving threatening phone messages on my cell phone. He said if I didn''t get back with him, he was going to do really bad things to me (I won''t go into detail). He called and harrassed me and several of my friends. I took my cell phone to the police, and they listened to it. Based on this, they arrested him, and he spent three nights in jail. After that, it was supposed to go to court. But, he kept doing things to delay it and was going to supeno my boss and grandparents just to embarrass me in court. I had the DA drop the case, and I thought that would be the end of it.

Fast forward a year. I get engaged, and the engagement gets announced in the paper. All of a sudden, I am being sued by the ex-boyfriend. He can''t sue for false arrest b/c I didn''t put a warrant on him...the sheriff did based on the phone calls that they listened to. He can''t sue for verbal slander b/c it has been over a year - I didn''t like about anything anyway. So...his lawyer makes up some stupid reason - I breached my duty not to run around telling lies. Yes - that is exactly what was said in court. So..I had to hire a lawyer, which cost $600 at that point. So, we go to court and the judge tells his lawyer that he can''t come in there making up the law - but she gives him a chance to revise it. Thirty days later, I''m back in court. The judge then dismisses his case b/c it has no legal basis. Then, the ex-boyfriend appealed the judge''s decision.

So, then I had to pay my lawyer more money - for a total of $2,100 to represent me in appeal court. It just got dismissed again, but he is appealing it again.

How can someone sue me when I didn''t do anything? His case is frivilous, but he keeps appealing it. How long can this go on? What can I do about it? I now live out of the state where it is happening. I don''t want to call my lawyer b/c he will start asking me for more money that I don''t have. I am getting really depressed about this b/c I did nothing wrong. I just want this crazy guy to leave me alone.

Thanks for any advice anyone might have to help me.

 

[ame]

Sounds like he is doing this just to make you continue wasting money. Sounds like a revenge tactic to me, maybe he hopes that if he bleeds you dry and continually annoys you and your fiancee that you two will call it off and he can win you back

 

[windy1365]

I''m married now. He would no there would be no chance of reunion. I tried to end it as friends, but he said all or nothing.

It is revenge - but I don''t see how you can keep appealing a frivilous case. I don''t see how a lawyer can do that and waste court time. He is literally suing me for ''breached my duty not to run around telling lies''. It actually says that in the lawsuit. My lawyer thinks it is funny - but I don''t find it funny at all.

This is depressing. My husband tells me not to worry about it - just deal with it when I have to, but that is easier said than done.

 

[valeria101]

Date: 6/10/2005 9:22:09 PM
Author: windy1365

My husband tells me not to worry about it - just deal with it when I have to, but that is easier said than done.

Sorry to hear about these...

I am affraid I do not know the relevant local law which might apply to your question. Could it be that your current lawyer keeps touting his tallent in hope that you might sure for harassment ? Hopefully, you would find a way to field the threats (= appeals) in a costless way, so that you never get to court.

 

[windy1365]

Yea - do I really need a lawyer to represent me in appeals court?

 

[movie zombie]

get yourself another attorney.

are you in california?

if so, there is a type of restraining order you can get that has to do with financial harrassment. while i am not an attorney, this sounds like financial harrassment to me.

if you are not in california, check your state website under civil law to see if you have the equivalent.

nasty situation. i wish you luck.....

peace, movie zombie

 

[mightyred]

Alas you will have to fight fire with fire.

You don''t need to like your lawyer. You just need him/her to be effective for you.
You need a lawyer who says this man is a pest and if this case is dismissed again can you make him pay costs?

I''m not a lawyer so don''t know if this can be done..but regardless....you need to speak with your lawyer and say ''this is money from my bank for his frivolous case...lets take it out of his bank and I''ll recommend you to everyone I know!''

Good luck windy....you don''t half have some drama!!

 

[moremoremore]

You got that right! You don't need to like your attorney. Most attorneys think a bit too much of themselves (myself excluded of course LOL)...

It's unfortunate that this is happening to you...yes, you can act pro se (on your own) but that can be dangerous. I would contact your local bar association and see if they have any pro bono attorneys who can help you out. If not, you'll have to deal with your attorney and pay him but see if you can keep a tight leash on him. Just like other professionals, lawyers like to get paid for their work

It doesn't sound like your ex keeps appealing. He probably drafted a complaint and your attorney moved to dismiss it for failing to state a valid cause of action ...the judge gave him another bite at the apple (to amend the complaint)...then the judge dismissed it and *now* he might be 'making a motion' to re-argue. Then, if that's denied, *then* he can appeal to the next higher court (of course, that's how it's done in NY...I have no idea about CA)....

Well, I'm sure your attorney has thought of this but I'd ask him- Nothing hurts like a *counterclaim*... maybe move for sanctions for him commencing frivolous action... I'm sure this sounds like a daunting task...and there's a reason why you kind of have to go to law school (well, not really, bc law school is worthless...) but a reason why you have to practice law for this to come together)...

Call legal aid or your bar association! Good luck with this.

 

[windy1365]

Thanks, moremoremore. I did actually live in Georgia. That is where all of this lawsuit thing is happening. You are probably right about the ''motion to argue'' thing, and I just thought that was an appeal. I know he is appealing now, though.

Once this goes to the higher courts and gets shot down, can he then appeal again, or will it be over with? This has been going on for over a year and a half now!!

My lawyer is acting like he doesn''t want to get the other lawyer in trouble for going along with a frivilous claim b/c they both work in such a small town together.

 

[moremoremore]

So it''s definitely going to a higher court now?
Well, asking for sanctions when they''re not warranted can lead to sanctions...and lawyers are certainly reluctant to move against other attorneys.

I dunno about the GA court system. Here in NY, for ex, you can go from the supreme court to the appellate division to the ny court of appeals. To be honest, I don''t even really know, but I believe you may have to get some kind of leave of the court to go from the appellate divison to the court of appeals, i.e., they''re not going to here just any old appeal...but again, I''m not sure...maybe other ny attorneys with more experiance/any Ga attys can help.

You''re the client and you''re the boss. Assuming he agrees that the allegations are totally without merit, tell him he must do *something* in retaliation or you''re find another atty. I still think calling a GA bar association is a good idea.

Unfortunately, pleadings (a complaint) will be liberally construed so that as long as it states *some* cause of action, it can stand and the law suit continues...

 

[memsy]

Windy, i very rarely post on PS but I lurk.. and I just read your post and wanted to throw my two cents in. I am a lawyer, but I am not admitted in Georgia, and I know nothing about GA law. However, i believe the following general advice may be useful to you. I am not providing specific legal advice that you should rely on, and we are not creating an attorney client relationship. (Yes, it''s a disclaimer..)

There are often several levels of appeal, so yes, someone can appeal "more than once". This is why litigation is costly and time consuming. Unfortunately, litigation can take years.

It sounds like he sued you for defamation, or something similar. That can be hard to prove and the judge probably had a good basis upon which to throw his case out. However, Plaintiffs can be given a somewhat broad opportunity to ''redo'' their complaint, which is probably what has happened here.

My first major point is that it is possible that you can recover attorneys'' fees for an action in which a final decision is rendered in your favor. Again, this would depend upon the specific cause of action which your ex has plead. But your lawyer should know this.

As for your lawyer, you are his client and he needs to take direction from you. You should feel free to contact the local bar association (or state if the local is too much like an ''old boys club'') for help with this question. They probably have a website- google is your friend! I bet if you call them and tell them you have an ethics question, they will direct you to someone who can give you advice about whether what your attorney is doing is proper. Believe me, your attorney does NOT want to be sued by you for malpractice, so he should not be prolonging this case for his personal reasons. I would also suggest contacting a local law school to see if they have a clinic that could help you- you may be able to get free legal help and/or representation. Look on websites for the schools for help and phone numbers. Also, there may be a Public Interest law group that could help you (although these are more often for Plaintiffs rather than Defendants, but still worth a try). This would certainly be a cheaper option.

My last question for you is- do you have homeowners'' insurance? There is a possibility that you may have some coverage for this kind of claim. If you do, speak with your insurance broker about how to file a claim.

I hope that this helps. Feel free to PM me- i will try to remember to log in, I usually don''t.. GOOD LUCK!

 

[moremoremore]

Memsy! OMG! I couldn't remember that it was YOU that had this wonderful avatar! This sounds a bit odd, but Will Farrel (sp?) was recently the host of SNL and he played with Queens of the Stone Agw (I think that's who they were) and HE PLAYED THE COW BELL!!!!! LOL.....

Sorry for the tangent. You have given some good advice Memsy!

And If you are being sued for defamation, well, the attorney for him SHOULD be sanctioned....A plaintiff has to prove special damages were caused to him and it would be nearly impossible

P.S. I'd check locally b/c here in NY that attorney's fees are almost never recoverable....available in only *very* limited situations....where they are authorized by statute, contract or court rule. You can always get your *costs* back...but those are the ones authorized by statute/rule to be a few hundred bucks....

 

[windy1365]

That''s what I''m saying... his case is frivilous. His lawyer should never have entertained it. And, to carry it on this far is ridiculous!

The first time in court, he tried to reference a case about a bowling alley selling alcohol to a minor. It had NOTHING at all to do with what he was trying to sue for... which was ''my breach of duty not to run around town telling lies''. Which, also has no weight b/c it had been well over a year since the whole incident. I never went around telling anyone anything... I just took my cellphone to the cops.

Will bringing up sanctions against the other lawyer help my case, or will it just cause more drama and problems?

 

[afrodyt2000]

Didn't read everyone else's response but I would advise you to file a claim against him for filing a frivilous claim and your lawyer should file a claim against his lawer for Civ Pro Rule 11 (I believe) and several professional rules of conduct violations. An attorney should not take a case that he/she believes lacks merit and if there is no basis in the law or could plausibly be an extention of existing case law or legislation. I am sorry you are going through this. It sounds like an extremely difficult situation. At least you have an understanding husband by your side.

ETA: I hope you find a good lawyer and everything gets resolved soon.

 

[ame]

My cousin''s husband told me this "countersue him and add that you want damages for time and lawyers fees" because apparently you can put this all to bed if you countersue and it''s again thrown out by a judge in appeals court and you might win your money back from him.

 

[codex57]

Briefly scanned the other responses.

Your lawyer sounds like he sucks. I''d give him some marching orders and see how he proceeds before firing him tho.

Many appeals: What likely happened is that the judge dismissed the complaint without prejudice. That means, he can fix what''s wrong and file it again (costing you money each time to respond, otherwise you get an automatic judgment against you). He can appeal every time that judge dismisses his case. You need to get your attorney to convince the judge to dismiss w/out prejudice.

I''d start by telling your lawyer to start asking for sanctions. Cross-complaint is good too. Malicious prosecution comes to mind. And yeah, I''d start filing stuff against the other attorney. Complaints to the state bar, etc.

You need to stop being on the defensive and start taking aggressive action.

 

[movie zombie]

you pay your attorney; therefore, he is supposed to work for you. his ongoing relationship with the opposing attorney is his problem. get yourself another attorney if this one isn''t going represent you.

its not a question whether the other guy''s attorney should do something or not. its his job to represent his client for better or worse. and it appears he''s doing a better job of representing the jerk than your guy is in representing you.

attorneys are merely hired guns to do what they can do for their client whether that client is a murderer, theif, getting a divorce, etc. it is the attorney''s job to use the law to the benefit of his or her client, regardless of guilt, etc.

ok, end of that rant.

i''d also check into frivilous lawsuit possibilities....

a guy like this jerk isn''t going to understand anything other than fighting fire with fire.

peace, movie zombie

 

[fire&ice]

I''m not an attorney. The point has been raised to countersue. I''ve always heard that is the best way to get a case to go away. You may want to talk to your attorney - or another legal clinic.

Good luck.

 

[windy1365]

Thanks for all of the advice. I''m going to get in touch with my lawyer and tell him that I want to bring up sanctions against the other lawyer for filing a frivilous case. Then I want to sue the ex! If my current lawyer can''t do this, then I will get another one.

I do have one more question. I paid the lawyer to represent me in appeals. What is he tries to say that I owe him more money if I tell him that I''m getting a different lawyer? Can he do this? I didn''t agree to pay him any more. He did this to me once before. I paid him the $600, and he said that I owed him more money. We never discussed that I would owe him more money up to that point.

 

[codex57]

Oops, I noticed a MAJOR boo boo in my post. You want the judge to dismiss the case WITH prejudice. I meant to say that the judge did it without prejudice, but you need to convince him to do it with prejudice. That means he can't bring it again.

I dunno about Georgia or Illinois, but Cali's Code of Professional Responsibility says we're supposed to lay out IN WRITING our fee structure. If it's flat fee, contingency, hourly, what's included in all that, etc.

That $600 told me plenty. He's not doing much b/c you're not paying him much. Lawsuits are VERY expensive (which is why I suggested countersuing to jack up your ex's cost and hopefully convince him that his money is better spent bothering some other person). Since you're not paying him much, he's not going to take care to cross every T and dot every eye.

I'd have a chat with him again. What state are you in again? I'd check out the state website and see if there's a consumer section. See what it says about fees and what to expect. Then, talk with your lawyer and have him lay out all your costs. If you want a flat fee, then ask him what he'll do for that flat fee.

Did you sign something with him so that he'd represent you? Should have. It'd be interesting to read what he wrote. You're really going to have to have a chat with him and figure out your strategy and if he's willing to do it for you. He may not know how and is hoping to make some quick cash off you in hopes that the other side will drop the case and go away. Your bargaining chip is that he may have done something unethical by not explaining what he's doing for you and you may be able to report him to the bar.

 

[Lord Summerisle]

aye, i was going to say can you counter sue the ex for being an insufferable prat

 

[windy1365]

I actually paid my lawyer an additional $1,500 to represent me in appeals court, so I paid him a total of $2,100. I pulled out all my documents. He did try to get the case thrown out with prejudice. The judge ended up throwing it out for the reason that it had no legal basis.

It has taken them six months to file the appeal. I thought it was going to take six months to go to appeal court. Now, my lawyer said that it will take another three to six months to get to the court. He said that I don''t owe him anything else for this process... thank goodness!! He is going to send me a copy of the appeal - he said that it looks like a second grader wrote it. The lawyer is even trying to bring in new stuff that had nothing to do with the first case.

I told my lawyer that I wanted to bring sanctions against the other lawyer. He is going to now do this after the case is thrown out in appeals court. I can also sue for all my lawyers fees since the case was determined to have no legal basis. I can''t sue for anything else b/c I would have to prove that I had other damages, which I can''t prove. I wanted to sue for malicious litigation (like someone suggested), but I guess I can''t.

But... I do have to wait six more months before this drama is over!! I know that the case will get dropped... but what''s to stop this guy from suing me for some other frivilous reason?

I live in Arkansas now, so if he files another lawsuit against me in Georgia, how would he even serve it to me??

Anyway... I feel much better now after talking to my lawyer. Thanks for all the advice.

 

[moremoremore]

I''m glad you spoke to the atty and have some resolution (at least about what his next steps are and what you owe him).... I think you should find your ex and leave a flaming bag of dog poop in his car LOL J/K

You''ll have to be served in your state, not his..unless you plan on being there for other reasons and they happen to find you provided you weren''t in court at the time

 

[codex57]

The new facts are good news. You''ve paid a reasonable sum for your lawyer to take this all the way through. Well, it is bad for you in that, yeah, I believe you''re gonna have to wait some months for it to all play out. The wheels of justice move... slowly.

If he sues again, you can always bring up this old case. Show how it was dismissed before. Sue for malicious prosecution, abuse of process, etc.

I can''t remember service rules very well but I believe he''s gotta serve you in person and that he''s gotta serve you in Georgia to make it valid.