James F. Lapinski v. St. Croix Condominium Association, Inc.

• Court: Court of Appeals for the Eleventh Circuit
• Decided: September 10, 2019
• Docket: 18-15157
• Status: Unpublished

Opinion

Case: 18-15157 Date Filed: 09/10/2019 Page: 1 of 4

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 18-15157 Non-Argument Calendar ________________________

D.C. Docket No. 6:16-cv-01418-PGB-GJK

JAMES F. LAPINSKI,

Plaintiff–Appellant,

versus

ST. CROIX CONDOMINIUM ASSOCIATION, INC., ESTATE OF DOUGLAS COOK, FIFTH DISTRICT COURT OF APPEALS OF FLORIDA, FLORIDA SEVENTH CIRCUIT COURT, STATE OF FLORIDA, et al.,

Defendants–Appellees,

STEPHEN J. GUARDINO, et al.,

Defendants. Case: 18-15157 Date Filed: 09/10/2019 Page: 2 of 4

________________________

Appeal from the United States District Court for the Middle District of Florida ________________________

(September 10, 2019)

Before WILSON, WILLIAM PRYOR and HULL, Circuit Judges.

PER CURIAM:

James Lapinski appeals pro se the award of attorney’s fees to St. Croix

Condominium Association, Inc., for its defense of an earlier appeal by Lapinski.

See Fed. R. App. P. 38. Lapinski abandons any challenge he could have made to

the award imposed for filing an appeal “utterly devoid of merit” contesting the

dismissal of his amended complaint against the Association, public officials and

entities, and others for unlawful conduct related to the construction of and

foreclosure on his condominium. Lapinski v. St. Croix Condo. Ass’n, Inc., 739 F.

App’x 519 (11th Cir. 2018). Instead, Lapinski accuses officers in Daytona Beach

Shores and in the Volusia County Jail of unlawful conduct that allegedly occurred

after he filed this appeal and he demands a jury trial and a “third appeal” on the

dismissed complaint. We affirm the award of attorney’s fees to the Association,

sanction Lapinski for this frivolous appeal, and remand for the district court to

determine a reasonable attorney’s fee for the defense of this appeal.

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Lapinski abandoned any challenge that he could have made to the award of

attorney’s fees to the Association. He asserts that the district court should have

reduced “the inflated, duplicate, non-responsive fees.” Lapinski’s “passing

reference to [the award] . . . is not enough [to preserve any error in the award], and

[his] failure to make arguments and cite authorities in support of [the] issue

waives” any challenge he could make to the award. See Hamilton v. Southland

Christian Sch., Inc., 680 F.3d 1316, 1319 (11th Cir. 2012).

Lapinski’s remaining arguments are not properly before us. We lack

jurisdiction to consider Lapinski’s claims against the officers. Lapinski filed an

amended notice of appeal that states he has a “New case: Police Brutality,” but he

identifies no appealable judgment or order in that new case that we can review. See

Whetsone Candy Co., Inc. v. Kraft Foods, Inc., 351 F.3d 1067, 1079-80 (11th Cir.

2003). And even if we treat Lapinski’s arguments for a jury trial and for another

appeal as a request for a writ of mandamus, he has no right to relief. See United

States v. Coy, 19 F.3d 629, 635 (11th Cir. 1994) (stating that a writ of mandamus

issues only if a party who has no other remedy available and has a clear and

indisputable right to relief). Lapinski is not entitled to a jury trial on a complaint

dismissed for lack of subject matter jurisdiction and for failure to state a claim, nor

is he entitled to a “third appeal” on a judgment we earlier affirmed.

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The Association requests that we sanction Lapinski for pursuing another

frivolous appeal. See Fed. R. App. P. 38. Rule 38 states, “If a court of appeals

determines that an appeal is frivolous, it may, after a separately filed motion or

notice from the court and reasonable opportunity to respond, award just damages

and single or double costs to the appellee.” Id. The Association argues that

Lapinski’s challenge to the award of attorney’s fees is “nonsensical” and that his

other claims lack merit. Lapinski has not responded to the motion. Rule 38 exists

“to assess just damages in order to penalize an appellant who takes a frivolous

appeal and to compensate the injured appellee for the delay and added expense of

defending the district court’s judgment.” Burlington N. R.R. Co. v. Woods, 480

U.S. 1, 7 (1987). Lapinski’s serial litigation warrants an award to the Association

of double costs and reasonable attorney’s fees in defending this appeal. We remand

this action for the district court to determine the amount of attorney’s fees

reasonably incurred by the Association and to assess that amount against Lapinski.

We AFFIRM the award of attorney’s fees to the Association in an earlier

appeal, we AWARD SANCTIONS to the Association under Rule 38 for this

appeal, and we REMAND for the district court to determine reasonable attorney’s

fees for the defense of this appeal.