Green v. Lisa Frank, Inc. (CA2 1/20/09)

Appellate judges love to do this once in a while: write, a la Stanley Feldman,  a long opinion explaining why black is really white even though the statutes and the cases and the common law all thought it was black.

The case was a messy corporate/family dispute. In the course of it Green, a corporate officer, violated a court order prohibiting him from making off with corporate assets. Finding him in contempt, the trial court struck his pleadings and awarded the other side some injunctive relief. A judgment was entered, with Rule 54(b) language; damages were to be determined later.

The law has always been that civil contempt orders are not appeable; the remedy is by special action. The civil contempt statute has no provision for appeal, the common law does not allow appeal, and our Supreme Court has said that there is no appeal. It takes Joe Howard’s dissent only a couple of pages to point out law that the Court of Appeals has no power to change. The moral should be that you can’t make an order appealable just by dressing it up like a judgment.

But the majority decides that the order was an “interlocutory judgment” that could be appealed under 12-2101(G). What about the statute, cases, etc.? The long and short of the fifteen pages (in fairness to Judge Pelander, the rest of his 37-page opinion discusses the merits; in more fairness to him, he doesn’t try to hide the fact that the law is against him) is that they don’t really apply to this situation because this was, you see, a “judgment.” Why was it a judgment? It did award part of the relief sought in the action but this is hardly the first time contempt ever did that. In reading the majority opinion one can’t escape the feeling that the good judge  thought it was a judgment mostly because it says “Judgment.”

Reasonable people could argue that an order of this sort is enough like a judgment that it ought to be appealable. But the law is — or was — that it can’t be until the Legislature lets it be. That’s a step that shouldn’t be skippable.

What about the merits? Corporate-law types will want to read the case but the substance is pretty mushy: the trial court was right on some things, wrong on others, based on the sort of equitable “factors” that this court makes up and  the next will follow or ignore as it pleases.