November 30, 2019

Neither a Permanent Injunction nor a Contempt Finding Support Appellate Jurisdiction; DuSablon v. Jackson County Bank

Category: Indianapolis Law Club | Author: | Share:

A preliminary issue in any appeal is whether the appellate court has jurisdiction to hear the appeal. An appealing from the wrong order can result in a dismissal.

Jackson County Bank sued DuSablon, arguing that he breached a noncompete agreement with the Bank. After a fact-finding hearing, the trial court granted the Bank a preliminary injunction. Two weeks later, the trial court found DuSablon in contempt for discovery violations, awarded sanctions to the Bank, and allowed the Bank to file a fee petition. DuSablon appealed these orders.

After he appealed, DuSablon did not seek to stay proceedings in the trial court. The trial court converted the preliminary injunction to a permanent injunction, and found DuSablon in contempt of the preliminary injunction order. The trial court noted that sanctions for this second contempt were “deferred for further hearing.” And it modified its earlier sanctions award by awarding $5,734 in fees. DuSablon appealed these orders, too.

On appeal, the Court addressed whether it had jurisdiction over the various orders DuSablon appealed. First, it held that the preliminary injunction was not appealable. For while App. R. 14(A)(5) permits an appeal from such an order, that order “no longer exists” since the preliminary injunction was converted into a permanent injunction.

The Court next noted that neither the permanent injunction nor the second contempt findings were appealable. The Rules do not render a permanent injunction appealable as of right. And the trial court had not yet entered sanctions on the second contempt order.

This left the first contempt order, and the fees the trial court awarded. This was appealable, but

DuSablon does not actually challenge the October Fees Order on appeal. Rather, he argues only that the entirety of the proceedings before the trial court were so infused with the trial judge’s bias for the Bank that “all orders entered against DuSablon” are invalid as a matter of law.

The Court found that this was an improper “attack [on] the trial court proceedings as a whole and without regard to the order on appeal.” Without something more than a “passing reference” regarding any impropriety in the payment of money compelled by the October fees order, there was no “cogent reasoning” supporting an appeal of that order. Thus, the Court found “nothing to review” and dismissed the appeal.

Finally, the Court noted that DuSablon was sanctioned for discovery violations, was found in contempt for refusing to comply with the preliminary injunction, was sanctioned for improperly attempting to remove the case to federal court, appealed many non-final orders, and submitted appellate briefs “riddled with impertinent attacks on opposing counsel and the trial court.” It obviously found this course of events
problematic and specifically noted that it was referring DuSablon’s attorney to disciplinary counsel.

Lessons:

1. There is no right to appeal from either a permanent injunction or an order finding contempt without imposing a sanction.
2. An appeal of a specific order is not a proper vehicle to attack the trial court proceedings as a whole.
3. The Court of Appeals will dismiss an appeal if the appellate argument is not directed at an appealed order.