In Carol DeVoy and Stephanie DeVoy, Co-Trustees of the Barnett Family Trust v. Carmen Lisek, SD39171, the Missouri Court of Appeals, Southern District, addressed the intersection of two important appellate principles: the need to timely seek a supersedeas bond to prevent execution on the judgment that is at issue on appeal and the rule that a party who voluntarily acquiesces in a judgment may lose the right to challenge that judgment on appeal.
The result was consequential. Because Appellants failed to seek a supersedeas bond before filing their notice of appeal and later surrendered property awarded to Respondents by the judgment, the Southern District held that Appellants acquiesced in the judgment’s validity. Consequently, their appeal was dismissed as moot.
The Underlying Trust Dispute
The case arose from a family trust created by Sarah Jo Barnett for the benefit of her three daughters. As Barnett’s memory and cognitive abilities deteriorated, her granddaughters Megan DeVoy and Carmen Lisek were added as co-trustees. After questionable transfers of trust funds by Lisek out of the Trust bank account, Lisek was removed as co-trustee. Stephanie DeVoy was later added as a co-trustee. Following additional concerns regarding the depletion of the Trust bank account, the DeVoys, as co-trustees of the Trust and under a power of attorney for Barnett, filed suit against Lisek, her husband, and daughter to recover the Trust assets appropriated.
The trial court ultimately found that Lisek and members of her family had exploited a confidential and fiduciary relationship with Barnett and exercised undue influence over her. Among other things, the trial court found that substantial trust funds were transferred to accounts controlled by Lisek, and that trust money was used to purchase a house in Republic, Missouri, and an expensive sewing machine. Based upon that evidence, the circuit court entered judgment for the Trust, ordered Appellants to return the Republic house and sewing machine to the Trust, and also entered a monetary judgment of $252,616.59 against Appellants.
The Critical Post-Judgment Mistake
Appellants filed a notice of appeal challenging the circuit court judgment but did not seek a supersedeas bond before filing their notice of appeal. After Appellants failed to convey the house and sewing machine to the Trust as ordered, Respondents initiated contempt proceedings in an effort to execute on the judgment. Only then did Appellants request a stay of the contempt proceedings and file a motion for a supersedeas bond.
Appellants’ failure to seek a supersedeas bond before filing their notice of appeal was damning because filing a notice of appeal does not stay enforcement of a judgment. Under Rule 81.09(a) and Missouri law, a request for a supersedeas bond must be made before the notice of appeal is filed in order to stay execution of the judgment at issue on appeal.
For that reason, the circuit court denied Appellant’s request for a stay of execution of the judgment because it lacked authority to grant that relief after the notice of appeal had been filed. To avoid being held in contempt, Appellants then delivered the sewing machine and executed a quitclaim deed transferring the Republic house to the Trust. Appellants proceeded with their appeal while the monetary portion of the judgment remained unpaid.
Acquiescence in a Judgment Can End an Appeal
On appeal, the Respondents argued that Appellants transfer of the sewing machine real estate to the Trust constituted the compliance with the underlying judgment which then barred Appellants from attacking the validity of the judgment on appeal.
The Southern District agreed with Respondents emphasizing that Missouri recognizes the acquiescence doctrine, a long-standing rule which holds that a party may not simultaneously accept or recognize the validity of a judgment and then challenge that same judgment on appeal. Undertaking a voluntary act that expressly or impliedly recognizes a judgment’s validity may estop the party from pursuing appellate relief. While Appellants argued that their surrender of the sewing machine and real estate was not truly voluntary because the transfer was made only under a threat of contempt, the Court rejected that distinction noting that Missouri precedent clearly establishes that compliance with a judgment to avoid the possibility of contempt does not render the compliance “involuntary” for purposes of the acquiescence doctrine.
The Unsatisfied Money Judgment Did Not Save the Appeal
Appellants further argued that their appeal remained viable despite the transfer of the sewing machine and real estate because Appellants had not paid the separate monetary judgment entered by the circuit court. In rejecting this argument, the Southern District conclude that the circuit court’s judgment arose from a single theory seeking recovery of trust assets that had been misappropriated—whether those assets remained identifiable property or had to be recovered through a money judgment. Notably, appeal, Appellants sought reversal of the entire judgment on appeal, and not only the monetary component of the judgment.
Under Missouri law, when Appellants transferred the house and sewing machine to the Trust, they voluntarily complied with material portions of the very judgment they claimed was invalid. That conduct was inconsistent with Appellants’ request that the appellate court reverse the circuit court judgment.
The Result
Because Appellants acquiesced in the judgment, they were therefore estopped from challenging its validity and the appeal was dismissed as moot.
Practice Takeaways
DeVoy v. Lisek provides several important reminders:
• Filing a notice of appeal does not automatically stay execution of the judgment.
• Compliance with a judgment while an appeal is pending may constitute voluntary acquiescence subjecting the appeal to dismissal as being moot.
• The desire to avoid contempt does not necessarily make compliance involuntary.
• Acquiescing in material portions of a judgment may still preclude an appellant from challenging the validity of the judgment as a whole.
The broader lesson is simple: Preserving an appeal may require action before the notice of appeal is even filed. Counsel considering appellate review should evaluate immediately not only the deadline for the notice of appeal, but also whether execution must be stayed to prevent post-judgment conduct from undermining the appeal.
