Third District Dismisses Appeal From Judgment As Untimely -- Appellant Should Have Appealed Trial Court's Alternative Decree
Yesterday, the Third District determined that the time for filing an appeal was triggered by the court's alternative decree regarding dissolution of the parties' limited liability company, rather than from the final judgment on plaintiff's dissolution complaint.
Sometimes the timing for filing a notice of appeal is trickier than one might think.
In Dickson v. Rehmke, one partner of a Limited Liability Company brought suit for dissolution of the company. Pursuant to California Corporations Code Section 17351 the court had three appraisers value the company and each partner's interest, then issued an alternative decree ordering plaintiff to either pay defendant for his share or the process of winding up the business and dissolution would commence. It's not entirely clear from the court's opinion how explicit the trial court's order was, yet, the court comments that the order should have been specifically worded as an alternative decree, but it wasn't. Regardless, the import of the order was that - if plaintiff paid defendant his share, the court would issue a judgment in favor of defendants on plaintiff's dissolution complaint -- Should plaintiff decided to forego payment and permit the process of dissolution and winding up to move forward, judgment on the complaint would issue at the conclusion of that process.
Plaintiff paid defendant for his interest and judgment was entered in favor of defendant. Plaintiff appealed from the judgment.
The court, however, ruled that the appeal was untimely -- That the order plaintiff should have appealed from was the order of decree itself pursuant to the language of Section 17351. According to the court, the issue of the valuation of the business (which was the subject of plaintiff's appeal) was decided by the alternative decree, not the judgment. The judgment was merely a way to "terminate the proceedings" following the court's valuation:
The timing of an appeal from valuation of a company pursuant to Section 17351 may not arise very often in your day-to-day practice. Yet, time and again, appeals are dismissed because attorneys automatically assume they can always appeal from the judgment, rather than from an interlocutory order. As the Dickson case illustrates, this is not always the case. Check and double check those rules. And, if your instincts tell you that an order issued by the court is irrevocable and finally decides a case against your client, check again. Your instincts are probably right that the time for an appeal is from the order, not from the judgment.
Sometimes the timing for filing a notice of appeal is trickier than one might think.
In Dickson v. Rehmke, one partner of a Limited Liability Company brought suit for dissolution of the company. Pursuant to California Corporations Code Section 17351 the court had three appraisers value the company and each partner's interest, then issued an alternative decree ordering plaintiff to either pay defendant for his share or the process of winding up the business and dissolution would commence. It's not entirely clear from the court's opinion how explicit the trial court's order was, yet, the court comments that the order should have been specifically worded as an alternative decree, but it wasn't. Regardless, the import of the order was that - if plaintiff paid defendant his share, the court would issue a judgment in favor of defendants on plaintiff's dissolution complaint -- Should plaintiff decided to forego payment and permit the process of dissolution and winding up to move forward, judgment on the complaint would issue at the conclusion of that process.
Plaintiff paid defendant for his interest and judgment was entered in favor of defendant. Plaintiff appealed from the judgment.
The court, however, ruled that the appeal was untimely -- That the order plaintiff should have appealed from was the order of decree itself pursuant to the language of Section 17351. According to the court, the issue of the valuation of the business (which was the subject of plaintiff's appeal) was decided by the alternative decree, not the judgment. The judgment was merely a way to "terminate the proceedings" following the court's valuation:
That a judgment will follow the alternative decree upon a tender does not mean the party making or accepting the tender who is dissatisfied with the valuation may await its entry to appeal that issue. This later entered judgment is on the underlying dissolution complaint for the purpose of terminating that proceeding through denying the requested relief. This judgment is not a vehicle for raising the issues of valuation on appeal, because the dissolution proceeding itself never embraced them.
The timing of an appeal from valuation of a company pursuant to Section 17351 may not arise very often in your day-to-day practice. Yet, time and again, appeals are dismissed because attorneys automatically assume they can always appeal from the judgment, rather than from an interlocutory order. As the Dickson case illustrates, this is not always the case. Check and double check those rules. And, if your instincts tell you that an order issued by the court is irrevocable and finally decides a case against your client, check again. Your instincts are probably right that the time for an appeal is from the order, not from the judgment.
