WHEN DOING THE RIGHT THING IS THE WRONG THING[Posted February 18, 2007] History attributes to baseball manager Leo Durocher the quip, “Nice guys finish last.” That’s not exactly the way The Lip said it, but it’s close enough for today’s purposes.
On Friday, February 16, one appellate litigant learned the hard way the cost of abiding by a trial court’s order while simultaneously appealing it. In Roden v. Lerner, the Supreme Court dismisses an appeal as moot because the appellant did exactly what the trial court had directed.
The suit related to a limited liability company, and evidently sought an involuntary conveyance by Roden of his interest in the company, pursuant to something called a “push” letter. The trial court granted that relief and ordered Roden to convey his interest. Roden noted an appeal, but (evidently fearful of a contempt citation, and unwilling or unable to post a supersedeas bond) conveyed his rights in the company to the plaintiff.
That act, the court rules, make the appeal moot, since the object of the suit has been accomplished by the voluntary act of the appellant. The court has previously held that, in the case of a money judgment, the voluntary payment of the judgment by the defendant moots his appeal; this ruling merely applies that same concept to the voluntary compliance with an order for equitable relief.
Note the use of the word voluntary in the preceding paragraph; in either case, if the appellant had waited until the judgment creditor had initiated collection efforts (including, in Roden’s case, a show cause petition for a contempt citation), and had then complied with the trial court’s order, he would have been able to pursue the appeal. The only other alternative for appellants who do not want to risk the trial judge’s wrath (or a snap garnishment) is to file a supersedeas bond, which automatically suspends execution of the judgment until the appeal is resolved.
The decision is rendered in an unpublished order, and is not available on the court’s web site, or in any of the legal databases. Readers of this site who would like a copy may e-mail me to request one.