Sept. 6, 2024 – A plaintiff’s failure to honestly and meaningfully address a question of appellate jurisdiction under 28 U.S.C. section 2107 rendered his appeal frivolous, the U.S. Court of Appeals for the Seventh Circuit has ruled in Upchurch v. O’Brien, 22-2541 (Aug. 6, 2024).

As a result, the Seventh Circuit held, sanctions under Federal Rule of Civil Procedure (FRCP) 38 were appropriate.

The Great Outdoors

Timothy O’Brien and his wife Margaret owned a resort on Catfish Lake in Eagle River for 30 years. Timothy Upchurch lived in a cottage next to the O’Brien’s resort.

For years, Upchurch was adamant that his deed granted him an easement over the O’Briens’ property – an easement that guaranteed him lake access.

The O’Briens disputed Upchurch’s claim. They put up “No Trespassing” signs and surveillance cameras and took other measures to keep Upchurch off their land.

Harassment Campaign

Upchurch responded by harassing the O’Briens. Beginning in 2003, Upchurch sent hostile and profanity-laced letters to the O’Briens and their lawyer, Steven Lucareli.

In 2012, the Vilas County Sheriff’s Office told Upchurch that sending the letters to the O’Briens amounted to stalking and warned that he would be arrested if he persisted in sending them.

In 2013, footage captured on one of the O’Briens’ surveillance cameras showed Upchurch stealing a second camera put up by the O’Briens.

The Vilas County District Attorney charged Upchurch with theft, and he pled no contest.

Arrested for Stalking

The police later arrested Upchurch for stalking the O’Briens. He pled guilty to disorderly conduct and criminal damage to property.

In 2017, Upchurch filed grievances against Lucareli with the Office of Lawyer Regulation.

RICO Lawsuit

In 2018, Atty. Timothy Provis filed a lawsuit in the U.S. District Court for the Western District of Wisconsin on Upchurch’s behalf.

The lawsuit named the O’Briens, Lucareli, the Vilas County District Attorney, and three Vilas County Sheriff’s Office deputies as defendants.

Upchurch alleged that the defendants had violated the Racketeering, Influenced and Corrupt Organizations (RICO) Act.

The defendants moved to dismiss the lawsuit and moved for sanctions under FRCP 11.

Provis’s reply to the motions was limited to a declaration in which he conceded that Upchurch owned neither a deed nor an easement across the Obriens’ property.

Provis failed to serve initial disclosures and didn’t respond to discovery requests from the defendants.

The district court issued an order granting the O’Briens’ motion to compel. Provis failed to comply with the order and the O’Briens moved for additional sanctions under FRCP 37.

Provis then filed a notice of voluntary dismissal as to the O’Briens, Lucareli, and the district attorney. Several days later, Provis filed a stipulation to dismiss the case against the three sheriff’s deputies.

Lucareli then filed a motion for Rule 11 sanctions. The district court later granted each of the three sanctions motions.

On July 26, 2022, the circuit court awarded costs and attorney fees to the O'Briens and Lucareli.

On Aug. 4, 2022, the O'Briens asked the circuit court to enter judgment on the July 26 order. The circuit court did so later that day, and the entered judgment listed the same fee awards as the July 26 order.

Upchurch filed a notice of appeal on August 31. The O'Briens moved to dismiss the appeal as untimely and moved sanctions for filing a frivolous appeal under FRCP 38.

What Triggers Deadline?

Chief Judge Diane Sykes began her opinion by a three-judge panel by concluding that Upchurch's appeal must be dismissed for lack of jurisdiction.

Sykes noted that under 28 U.S.C. section 2107(c), a party must file an appeal of a judgment or order in a civil case within 30 days after the entry of the judgment, order or decree.

Under Seventh Circuit case law, Chief Judge Sykes explained, 28 U.S.C. section 2107(c) is a jurisdictional requirement.

Sykes pointed out that under Federal Rule of Appellate Procedure (FRAP) 4(a)(1)(A), the time for filing an appeal begins to run on "the entry of the judgment or order appealed from."

She also noted that when FRCP 58 requires the filing of a separate document to enter judgment, FRAP 4 specifies that the time for filing an appeal begins to run either when the separate document is filed or when 150 days have elapsed since the order or judgment was entered in the civil docket, whichever is earlier.

Where FRCP 58 does not require a separate document, Judge Sykes explained, FRAP 4(a)(7)A)(i) starts the appellate clock “when the judgment or order is entered in the civil docket.”

Separate Document?

Chief Judge Sykes noted that FRCP 58(a) generally requires that every judgment be set out in a separate document.

But the O'Briens and Lucareli argued that the July 26 order fit within an exception under FRCP 58(a)(3) for "an order disposing of a motion for attorney's fees under Rule 43."

The panel concluded that the circuit court’s July 26 order did not require a separate document under FRCP 58, and thus the time to file an appeal began to run from the date of that order.

“This means that Upchurch’s notice of appeal – filed on August 31 – was too late,” Sykes wrote.

Appeal was Frivolous

The panel concluded that Upchurch’s appeal was frivolous in several ways.

“Upchurch’s opening brief and reply, spanning fewer than eight combined pages, utterly failed to articulate a coherent argument on the jurisdictional issue,” Judge Sykes wrote.

“The lone reference to section 2107 is a misleading quotation suggesting that only a ‘judgment’ may start the appeals clock, even though the statute plainly states that an ‘order’ may do so too.”

As result, the panel concluded, sanctions under FRCP 38 were justified.

“After making the O'Briens and Lucareli spend time and money dealing with a lawsuit that ‘should never have seen the light of day,’ Upchurch and Provis prolonged this vexatious litigation by requiring them to defend a frivolous appeal challenging the district judge’s sanctions order – ‘the capstone of litigation that is hollow in every particular.’”