What can go wrong with an appeal?

      In a recent unpublished opinion, Charles Virzi Construction, Inc. v. Studer, #G044326, Justice Ikola addressed what can go wrong with an appeal.  While attorneys may make one or two mistakes, this opinion reads as an encyclopedia of what not to do, leaving the Court to conclude that plaintiff "Virzi's briefs and the record on appeal are voluminous, but fundamentally inadequate."  (Opn., pg. 2) 

This appeal was brought by a construction company that was suing Studer  for the balance due on a remodel of a home in San Clemente.  The owners cross-complained, alleging Virz breached the contract by his negligent performance. The trial court issued a 17-page statement of decision finding for the homeowner, awarding Studer $150,000 in compensatory damages.  With costs and fees, the total judgment came to $566,210. 

            The appeal court granted Virzi's request to file an oversized opening brief, which Justice Ikola opined, "In hindsight, that may have been improvident."  (Opn., pg. 10.)  The appellants' opening brief was 138 pages with "64 separately numbered issues, sub-issues, sub-sub-issues, and sub-sub-sub-issues."  Whoa!  If you think the brief containedeverything, including the kitchen sink, you would be wrong.  So, what was it missing? 

            How about a "concise statement of facts supporting the judgment."  (Opn., pg. 10; emphasis added.)  Virzi was challenging the judgment on substantial evidence grounds, but failed to include all of the relevant evidence supporting the trial court's findings on three out of four elements of a breach of contract action.  The court stated, "Reading only those pages, one would conclude Virzi built the perfect home." (Id.)   Studer's evidence was scattered about the rest of the brief.  The court said, "This is woefully inadequate."  (Id.)  

            Appellants frequently rely on their evidence in a substantial evidence challenge, ignoring the respondent's evidence or the evidence as a whole.  Not good enough, according to Justice Ikola.   The court highlighted some of the defects in Virzi's performance, including fire hazards or code violations.  

            Next?  The appellants did not transmit the trial exhibits, even though they heavily relied on them and referred to 28 exhibits in their briefs, ignoring California Rules of Court, rule 8.224(a)(1) and (b)(1).  If the exhibits are not transmitted, the appellate court will presume they do not undermine the judgment.  (Opn., pgs. 11-12.) 

            Let's say the exhibits were transmitted.  When referring to exhibits, especially those that are voluminous, a party must include the page number.  In a footnote, the court wrote, "'Counsel is obligated to refer us to the portions of the record supporting his or her contentions on appeal.'"  (Opn., pg. 11, fn. 3.) 

            The court noted that Virzi was improperly attempting to retry the case on appeal.  But the appellate courts do not reweigh the evidence or consider the credibility of a witness.  They are not, as Justice Ikola noted, "'a second tier of fact.'"  (Opn., pg. 12.) 

            Could matters get any worse?  Well, if you attack the statement of decision, but fail to appropriately address the trial court's actions, you might have a bit of a problem.  Not only did Virzi tear apart the statement of decision, but they raised the court's failure to address Virzi's 22-page request, which the appellate court found to be "ineffective," because it "improperly sought 'an inquisition, a rehearing of the evidence' by asking for findings on 86 separately numbered issues.'"  (Opn., pg. 13.) 

            To make matters worse - as if it could be done - Virzi attacked contract formation, even though it conceded the damages would have been the same under either possible version of the contract, thus lacking any real significance.  

            The appellate court also found Virzi waived the right to challenge certain costs but that waiver was done at the trial level.  (Opn., pg. 21)  Oh, but the same attorney who handled the trial also handled the appeal. 

            Then, to cap it all off, Virzi argued the trial court was without jurisdiction to award certain costs because a notice of appeal was filed.  But guess what?  The notice was premature.  Virzi did not appeal from a judgment that was final. 

            What did Virzi get for all his attorney's fine work?  The judgment as to the award of attorney's fees was reduced $17,020 to $549,190.85.  Given the ongoing interest and costs and fees in handling appeal, this effort was hardly worth it, except to provide some classic textbook examples of what not to do in handling an appeal.