ST. LOUIS — The Missouri Court of Appeals’ Eastern District has affirmed sanctions against Frederich Construction Inc. and ruled that the company’s appeal was frivolous, ordering its appellate counsel to pay $5,000 each to law firms.
In a July 21 opinion, the three-judge panel upheld a St. Louis County trial court’s dismissal with prejudice of Frederich Construction’s counterclaims against the two law firms.
The trial court also ordered the company to reimburse the firms for attorney fees incurred in defending the counterclaims. The appeal did not challenge the monetary sanctions imposed by the trial court.
The appellate court concluded that Frederich Construction’s only argument for reversal rested on a false premise: that the law firms had filed, and the trial court had granted, a motion to dismiss under Missouri Supreme Court Rule 55.27. The record instead showed that the firms filed a motion for sanctions under Rule 55.03, seeking dismissal as a sanction.
Judge Michael E. Gardner wrote that the distinction was central to the case.
Frederich Construction argued that because the trial court considered documents outside the pleadings, it was required under Rule 55.27 to convert the matter into one for summary judgment.
But the court said the conversion provision applies to a motion to dismiss for failure to state a claim, not to a sanctions motion under Rule 55.03.
The law firms had argued that Frederich Construction’s counterclaims were frivolous, meritless and brought for an improper purpose.
They contended that the company had assigned to its bonding company the rights underlying the counterclaims and therefore had no legal or factual basis to continue pursuing them.
The trial court found, based on the documents attached to the sanctions motion, that Frederich Construction had assigned all rights to alleged sums and had no good-faith basis to pursue the claims.
The appellate panel said Frederich Construction had not objected in the trial court to consideration of the attached documents.
Its response to the sanctions motion acknowledged that it was brought under Rule 55.03, and the company itself relied on the same documents in arguing that it had not assigned all of its rights to a third party, the opinion said.
The court also declined to consider additional arguments raised later in the appeal.
Frederich Construction argued for the first time in its reply brief that the sanctions motion did not meet Rule 55.03’s pleading requirements, and at oral argument it asserted that a Rule 55.03 motion should be subject to the Rule 55.27 conversion provision.
The court said arguments raised for the first time in a reply brief would not be reviewed and noted that Frederich Construction conceded it had no authority supporting its oral-argument position.
The panel then agreed with the law firms that the appeal was frivolous under Rule 84.19. It found that the appeal challenged what the firms called a “fictitious event,” the granting of a Rule 55.27 motion to dismiss, even though the record showed the motion was brought and decided under Rule 55.03.
The opinion also cited several deficiencies in Frederich Construction’s appellate brief, including a statement of facts that omitted the nature of the trial court proceedings, insufficient record references, a point relied on that did not substantially follow the required form and an appendix containing emails and a proposed order that were not part of the appellate record.
The court said those deficiencies alone did not make the appeal frivolous but, together with the record, demonstrated a lack of a good-faith and professional effort to fairly present a meritorious position.
The court assessed the damages against Frederich Construction’s appellate counsel, Christopher S. Swiecicki, rather than the company.
The panel said there was no indication that counsel’s lack of candor was attributable to the client. The damages are judgments of $5,000 in favor of Louis J. Basso P.C. and $5,000 in favor of Pitzer Snodgrass P.C.
The underlying fee dispute began in 2017, when Pitzer Snodgrass sued Frederich Construction to recover unpaid fees.
That claim was later resolved by a consent judgment and was not part of the appeal. Presiding Judge Robert M. Clayton III and Judge Lisa P. Page concurred in the decision.
Missouri Court of Appeals, Eastern District, Division One case number: ED113973
