Austin solo practitioner Omar Rosales, who already had been hit with more than $175,000 in sanctions for making false and abusive statements about opposing counsel during Americans with Disabilities Act litigation, faces additional sanctions.

In a May 4 decision in Phil's Icehouse Inc., et al. v. Jon R. Deutsch, a three-judge panel the U.S. Court of Appeals for the Fifth Circuit awarded $60,522.91 in attorney fees and expenses to six defendants who had been sued by Deutsch, who has been represented Morales. That amount is for the cost of defending the appeal.

Clark Richards, an appellate attorney representing the six defendants, said that in his experience, an appellate court awarding such sanctions is fairly rare.

“I have never had it happen in a case I've worked on,” Richards, a partner in Austin-based Richards Rodriguez & Skeith, said.

The panel noted in its per curiam opinion that under Federal Rule of Appellate Procedure 38, a court of appeals “may award 'just damages and single or double costs' for an appeal that is frivolous, meaning the result is obvious or the arguments of error are wholly without merit'.”

As the panel further noted, “Although it might have been possible for Rosales to raise genuine legal arguments, he has not done so. Instead, his appeal was plagued with references to unrelated areas of law, mischaracterizations of the record and the law, and missing citations.”

In December 2016, U.S. Magistrate Judge Mark Lane of the Western District of Texas had sanctioned Rosales in six ADA lawsuits after finding that he had “defamed opposing counsel with false and abusive statements, attempted to derail the administration of justice with frivolous motions and submitted fabricated evidence” to subvert proceedings in the federal district court. U.S. District Judge Lee Yeakel of the Western District concluded that Rosales acted in “bad faith” in a March 2017 decision.

In his brief to the Fifth Circuit, Rosales wrote: “Counsel posits that the Magistrate and District Court were engaging in extreme judicial activism in an attempt to stop and chill ADA litigation.”

The Fifth Circuit affirmed the sanctions against Morales in March of this year, noting there “was no serious doubt” that requirements for the district court's sanctions were met.

In its May 4 opinion, the Fifth Circuit wrote: “It is not simply the fact of the appeal, but the manner in which Rosales conducted it, that merits sanctions.” For that reason, it directed that Rosales, not Deutsch, is liable for these sanctions, the panel wrote in a footnote.

Clark said the Fifth Circuit's opinion affirming the trial court's original sanctions noted that Rosales had misstated the law and the facts in his brief.

“That was a signal to us they might grant sanctions,” he said.

Rosales responded to a request for comment with the following emailed statement:

“I will be filing an appeal to the Supreme Court of the United States. Needless to say, I am disappointed with this decision. I have filed over 65 appellate briefs at the Fifth Circuit, with four victories. Three of those victories involved ADA cases. And none of my appeals have ever been deemed frivolous.”