Bramble v. Bramble

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/02/2019 01:06 AM CDT
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
BRAMBLE v. BRAMBLE
Cite as 303 Neb. 380
James D. Bramble, appellee, v.
Lori A. Bramble, appellant.
___ N.W.2d ___
Filed June 21, 2019. No. S-18-682.
1. Judgments: Justiciable Issues. Justiciability issues that do not involve
a factual dispute present a question of law.
2. Moot Question: Jurisdiction: Appeal and Error. Although mootness
does not prevent appellate jurisdiction, it is a justiciability doctrine that
can prevent courts from exercising jurisdiction.
3. Justiciable Issues. A justiciable issue requires a present, substantial
controversy between parties having adverse legal interests susceptible
to immediate resolution and capable of present judicial enforcement.
4. Moot Question. Mootness refers to events occurring after the filing of
a suit which eradicate the requisite personal interest in the resolution of
the dispute that existed at the beginning of the litigation.
5. Moot Question: Words and Phrases. A moot case is one which seeks
to determine a question that no longer rests upon existing facts or
rights—i.e., a case in which the issues presented are no longer alive.
6. Moot Question. As a general rule, a moot case is subject to sum-
mary dismissal.
7. Contempt: Moot Question: Appeal and Error. An appeal challenging
a finding of civil contempt is rendered moot once the contemnor volun-
tarily purges the contempt.
8. Contempt: Appeal and Error. In a civil contempt proceeding, the con-
temnor has a choice once he or she is found to be in willful contempt
of court and a sanction and purge plan is put in place: The contemnor
can either seek a stay of the sanction pending an appeal or comply
with the purge plan and thereby purge the finding of contempt and end
the matter.
9. Moot Question: Appeal and Error. An appellate court may choose to
review an otherwise moot case under the public interest exception if it
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BRAMBLE v. BRAMBLE
Cite as 303 Neb. 380
involves a matter affecting the public interest or when other rights or
liabilities may be affected by its determination.
10. Moot Question: Words and Phrases. The public interest exception to
the mootness doctrine requires consideration of the public or private
nature of the question presented, the desirability of an authoritative
adjudication for future guidance of public officials, and the likelihood of
future recurrence of the same or a similar problem.
11. Moot Question: Appeal and Error. Application of the public interest
exception is inappropriate where the issues presented on appeal do not
inherently evade appellate review.
Appeal from the District Court for Douglas County: W.
Russell Bowie III, Judge. Appeal dismissed.
C.G. (Dooley) Jolly and Travis M. Jacott, of Adams &
Sullivan, P.C., L.L.O., for appellant.
Elizabeth Stuht Borchers and Steven J. Riekes, of Marks,
Clare & Richards, L.L.C., for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Stacy, J.
This appeal stems from civil contempt proceedings in a dis-
solution action. The primary question presented is whether a
contemnor’s full compliance with a purge plan renders moot a
subsequent appeal of the finding of contempt. We conclude it
does, and we dismiss the appeal.
BACKGROUND
In January 2016, after a trial, the district court for Douglas
County entered a decree dissolving the marriage of James D.
Bramble and Lori A. Bramble. Both parties moved to alter or
amend the decree, and the court thereafter entered an amended
decree on February 22, 2016.
As relevant to the issues on appeal, the amended decree
awarded the parties joint legal custody of their two minor
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BRAMBLE v. BRAMBLE
Cite as 303 Neb. 380
children, and Lori was awarded primary physical custody.
Regarding the marital home, the amended decree provided:
The real estate is awarded to [James] as is. The parties
have stipulated that the value of the house is $169,000.
There is $47,500 of marital equity. [James] shall refinance
the house within 60 days of the entry of the Amended
Decree to remove [Lori]’s name from the mortgage, and
pay [Lori] her share of the equity of $23,750.00. [Lori]
shall have until February 29, 2016, to vacate the resi-
dence. [Lori] shall leave the house in good condition,
and not remove any fixtures or major appliances (except
that [Lori] may remove either the clothes washer or the
clothes dryer), on her departure. [James] has been paying
the mortgage and all expenses since moving out of the
marital home, and shall continue to do so until after he
takes possession.
[Lori] shall execute a Quitclaim Deed to [James]
releasing her interest in the marital residence, whether
said interest is marital, legal, equitable, contractual or
otherwise, to be held by her attorney, who shall release
the deed to the title company or lending institution to be
held in escrow pending the refinancing and payment of
the marital equity.
Contempt Proceedings
On March 14, 2016, James filed an application for an order
to show cause. As relevant to this appeal, James alleged Lori
improperly removed several fixtures and items of personal
property from the residence. A show cause order was issued,
and Lori entered a voluntary appearance.
After a continuance to permit mediation, the contempt appli-
cation was taken up on October 24, 2016, with both parties
represented by counsel. Evidence was adduced, and the mat-
ter was continued to January 10, 2017, so additional evidence
could be offered. On January 13, the court entered an order
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BRAMBLE v. BRAMBLE
Cite as 303 Neb. 380
finding that Lori had willfully violated the provisions of the
amended decree in the following respects:
[U]pon her departure, [Lori] removed both the clothes
washer and dryer, and replaced the dryer with another
unit. Further [Lori] admits to removing the ceiling fans,
the dishwasher, range, refrigerator and microwave upon
her departure, a direct violation of the Amended Decree,
and [Lori] is in [willful] contumacious contempt of
this provision.
The January 13 order established a purge plan, but did not
impose a sanction for the contempt. The pertinent portions of
the order provided:
IT IS THEREFORE ORDERED that [Lori] is in [will-
ful] contempt of court for violation [of] paragraph 9(f) of
the Amended Decree, and shall appear in Douglas County
District Court #504 . . . on Monday, March 13, 2017, at
10:30 a.m. for sentencing.
IT IS FURTHER ORDERED that [Lori] may purge
herself of contempt by paying the sum of $3,573.00 to
[James] no later than March 10, 2017.
IT IS FURTHER ORDERED that [Lori] shall pay
to the Clerk of the District Court of Douglas County,
Nebraska, the sum of $1,500.00 as an . . . attorney’s fee
for [James’] attorney, no later than March 10, 2017.
IT IS FURTHER ORDERED that the parties shall
inform the court by the close of business March 10,
2017, whether the sentencing hearing is necessary so that
the Douglas County Sheriff’s Office can allocate their
resources.
IT IS FURTHER ORDERED that any requested relief
not specifically granted is denied.
Lori filed a timely motion to alter or amend, arguing the
order was “not supported by the law or the evidence adduced
at trial.” She did not object to the procedure ordered by the
court or the imposition of a purge plan without a sanction.
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Nebraska Supreme Court A dvance Sheets
303 Nebraska R eports
BRAMBLE v. BRAMBLE
Cite as 303 Neb. 380
The court overruled the motion to alter or amend, and Lori
timely appealed.
First A ppeal
On appeal, Lori argued the district court erred by finding
her in contempt, by imposing a purge plan, and by awarding
attorney fees to James. James cross-appealed, assigning the
district court erred in not letting him reopen the evidence in
the dissolution trial.
In a memorandum opinion issued April 3, 2018,1 the
Nebraska Court of Appeals determined Lori had not appealed
from a final order and it dismissed the appeal. The opinion
noted that an order of contempt in a postjudgment proceeding
to enforce a previous final judgment is a final order,2 but that
“the law in Nebraska has long been that the finding of con-
tempt alone, without an order of sanction is not appealable.”3
Because the district court’s January 13, 2017, order did not
impose a sanction, the Court of Appeals concluded Lori had
not appealed from a final, appealable order. The opinion also
sympathized with Lori’s predicament:
In reaching this result, we are cognizant of the dif-
ficult position in which Lori is placed. When the district
court chooses to in essence impose a purge plan without a
sanction, [Lori’s] choice is to either (1) follow the direc-
tions of the court to avoid sentencing, even though she
believes the district court erred in its finding of contempt;
or (2) choose not to abide by the court’s directives and
risk a heavier sanction once sentence is imposed. Once
1
Bramble v. Bramble, No. A-17-264, 2018 WL 1614352 (Neb. App. Apr. 3,
2018) (selected for posting to court website).
2
See id., citing Smeal Fire Apparatus Co. v. Kreikemeier, 279 Neb. 661,
782 N.W.2d 848 (2010), disapproved on other grounds, Hossaini v.
Vaelizadeh, 283 Neb. 369, 808 N.W.2d 867 (2012).
3
Id. at *3.
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BRAMBLE v. BRAMBLE
Cite as 303 Neb. 380
the sanction is imposed, she could then seek a stay of its
imposition pending appeal. [Citation omitted.] While we
cannot say it was error for the district court to give Lori
an opportunity to comply with its order prior to imposing
a sanction with a formalized purge plan, the court’s order
does place Lori in a difficult situation. In any event, her
efforts to appeal immediately are premature and we have
no alternative other than to dismiss her appeal for lack
of jurisdiction.4
Regarding James’ cross-appeal, the Court of Appeals found the
record on appeal was insufficient to support the assignment
of error and affirmed the district court’s order. The Court of
Appeals’ mandate issued May 9, 2018.
Proceedings on R emand
On May 18, 2018, the district court ordered Lori to appear
on June 11 “for sentencing on a previous finding of . . . con-
tempt.” At the June 11 hearing, James’ attorney asked the court
to reopen the record for the purpose of including additional
attorney fees as part of the purge plan.
In an order entered June 11, 2018, the district court reiter-
ated its prior finding of contempt and sentenced Lori to 10
days in jail, ordering her to self-surrender no later than 8 a.m.
on Friday, June 15. The order provided that Lori could purge
herself of contempt by paying to the clerk of the Douglas
County District Court the sum of $5,073 no later than close
of business on June 14. The order further provided that if Lori
failed to pay the purge amount and failed to self-surrender, a
warrant would be issued for her arrest. Finally, the order over-
ruled James’ request to reopen the record to submit additional
evidence of attorney fees.
Two days later, on June 13, 2018, Lori filed what she cap-
tioned as a “Notice of Compliance With Purge Order; and
4
Id. at *4.
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BRAMBLE v. BRAMBLE
Cite as 303 Neb. 380
Application for Order.” In this filing, Lori stated that at the
time of her first appeal, she deposited a $5,000 supersedeas
bond with the clerk of the district court and she represented
that sum was still on deposit with the clerk. Lori also alleged
that on June 12, she paid an additional $73 into the clerk of
the district court. Lori asked that the funds deposited with the
clerk, totaling $5,073, be used to purge her contempt.
The next day, on June 14, 2018, the district court entered
a stipulated order for distribution directing the clerk of the
district court to “release to [James] the sum of $5,073” and
to “record this transaction in complete satisfaction” of the
purge order.
Second A ppeal
On July 10, 2018, Lori filed a notice of appeal, purporting
to appeal from the contempt orders of January 13, 2017, and
June 11, 2018. After Lori filed her opening brief, James moved
to summarily dismiss the appeal, arguing it was rendered moot
when Lori satisfied the conditions of the contempt order and
purged the finding of contempt. Lori opposed summary dis-
missal, arguing alternatively that (1) the appeal still presents
legally cognizable interests or (2) the public interest exception
to the mootness doctrine should apply.
The Court of Appeals overruled the motion for summary
dismissal and directed the parties to address the mootness issue
in the remaining briefing. After briefing was complete, we
moved the case to our docket.5
ASSIGNMENTS OF ERROR
Lori assigns, slightly restated, that the district court erred
in (1) finding her in contempt, (2) making insufficient factual
findings to support a finding of willful contempt, (3) finding
her in contempt of provisions in the amended decree that were
5
See Neb. Rev. Stat. § 24-1106 (Cum. Supp. 2018).
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BRAMBLE v. BRAMBLE
Cite as 303 Neb. 380
vague, (4) awarding attorney fees to James, and (5) not award-
ing attorney fees to Lori.
STANDARD OF REVIEW
[1] Justiciability issues that do not involve a factual dispute
present a question of law.6
ANALYSIS
Before we address James’ argument that this appeal of
a civil contempt order is moot, we discuss the nature of
civil contempt proceedings generally. We have explained that
“[c]ivil contempt proceedings are ‘“instituted to preserve and
enforce the rights of private parties to the suit and to compel
obedience to orders and decrees made to enforce the rights
and to administer the remedies to which the court has found
them to be entitled . . . .”’”7 Civil contempt proceedings are
often described as “remedial and coercive in their nature.”8 As
such, courts in civil contempt proceedings have broad remedial
power, including the power to order “compensatory relief that
is limited to a complainant’s actual losses sustained because
of a contemnor’s willful contempt”9 and the power to order
equitable relief.10
Historically, Nebraska did not permit appeals to be taken
from civil contempt orders imposing only civil, coercive sanc-
tions.11 But in the 2010 case of Smeal Fire Apparatus Co. v.
6
Blakely v. Lancaster County, 284 Neb. 659, 825 N.W.2d 149 (2012).
7
Smeal Fire Apparatus Co., supra note 2, 279 Neb. at 672, 782 N.W.2d at
860 (emphasis omitted).
8
Id. (emphasis omitted).
9
Id. at 676, 782 N.W.2d at 862.
10
Smeal Fire Apparatus Co., supra note 2.
11
See, e.g., Dunning v. Tallman, 244 Neb. 1, 504 N.W.2d 85 (1993),
overruled, Smeal Fire Apparatus Co., supra note 2; State ex rel. Kandt
v. North Platte Baptist Church, 225 Neb. 657, 407 N.W.2d 747 (1987),
overruled, Smeal Fire Apparatus Co., supra note 2.
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BRAMBLE v. BRAMBLE
Cite as 303 Neb. 380
Kreikemeier,12 we held that “a party may appeal from a final
order of contempt, regardless whether the court’s sanction is
labeled criminal or civil.”
With this framework in mind, we address James’ argument
that this appeal is moot because Lori has purged herself of the
civil contempt finding she now seeks to challenge.
A ppeal Is Moot
[2,3] Although mootness does not prevent appellate jurisdic-
tion, it is a justiciability doctrine that can prevent courts from
exercising jurisdiction.13 A justiciable issue requires a present,
substantial controversy between parties having adverse legal
interests susceptible to immediate resolution and capable of
present judicial enforcement.14
[4-6] Mootness refers to events occurring after the filing of a
suit which eradicate the requisite personal interest in the reso-
lution of the dispute that existed at the beginning of the litiga-
tion.15 A moot case is one which seeks to determine a question
that no longer rests upon existing facts or rights—i.e., a case in
which the issues presented are no longer alive.16 As a general
rule, a moot case is subject to summary dismissal.17
James argues that because Lori voluntary and fully com-
plied with the purge order, she has purged herself of contempt
and this appeal is moot. We considered a similar argument
in McFarland v. State.18 In that case, a county court judge
12
Smeal Fire Apparatus Co., supra note 2, 279 Neb. at 707-08, 782 N.W.2d
at 882.
13
Blakely, supra note 6.
14
Professional Firefighters Assn. v. City of Omaha, 282 Neb. 200, 803
N.W.2d 17 (2011).
15
Blakely, supra note 6.
16
Id.
17
Putnam v. Fortenberry, 256 Neb. 266, 589 N.W.2d 838 (1999).
18
McFarland v. State, 165 Neb. 487, 86 N.W.2d 182 (1957).
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(respondent) refused to sign an order fixing a time, date, and
place for a probate hearing, believing such an order already
had been issued. A mandamus action was filed against the
respondent in district court, and a peremptory writ of man-
damus issued. When the respondent did not comply with
the peremptory writ, an alias peremptory writ of mandamus
issued, commanding the respondent to comply with the previ-
ous writ by signing the order setting a time, date, and place
for the probate hearing. When the respondent again refused,
he was found in contempt and ordered committed to jail until
he purged himself of contempt by signing the order. The
respondent then complied with the purge provision and filed
a notice of such compliance with the district court. The dis-
trict court thereafter noted the respondent’s compliance with
the alias writ of mandamus and suspended execution of the
jail sentence. The respondent appealed to challenge the prior
commitment order, and a question was raised about whether
the appeal was moot. We found it was, and dismissed the
appeal, reasoning:
[I]t is self evident that no issue remains to be decided
here. Nothing could be gained by our holding that the
commitment was improper for respondent is no longer
in jail. He has not been found guilty of criminal con-
tempt, in which case he would be entitled to have his
conviction reviewed. Here the purpose of the order to
jail was to coerce respondent to comply with the manda-
mus order of the court. Whether or not [the mandamus]
order is correct can properly be determined in an appeal
taken therefrom.19
[7] Although McFarland was decided before Smeal Fire
Apparatus Co. recognized the right to appeal a civil contempt
order, the mootness analysis in McFarland is consistent with
19
Id. at 493-94, 86 N.W.2d at 186.
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BRAMBLE v. BRAMBLE
Cite as 303 Neb. 380
that of other courts to have considered the issue.20 We agree
with those state21 and federal22 courts which hold that an
appeal challenging a finding of civil contempt is rendered
moot once the contemnor voluntarily purges the contempt.
Such appeals do not present a justiciable issue because, given
the coercive nature of civil contempt proceedings, once a
finding of contempt has been fully purged and obedience with
the order has been accomplished, there is no remaining con-
troversy between the parties and no effective relief that can
be afforded on appeal.
20
See Annot., 33 A.L.R. 3d 448 § 26 (1970 & Supp. 2019) (and cases cited
therein).
21
See, e.g., Belt v. Cabinet for Families, 520 S.W.3d 406 (Ky. App. 2017)
(appeal of contempt proceedings arising out of failure to pay child
support rendered moot when contemnor paid full purge amount); Union
Hill Homes Ass’n v. RET Development, 83 S.W.3d 87 (Mo. App. 2002)
(appeal of contempt order rendered moot when contemnor fully complied
with purge order and thus purged itself of contempt); Central Emergency
Med. v. State, 332 Ark. 592, 966 S.W.2d 257 (1998) (appeal of contempt
order moot where contemnor purged itself of contempt by paying fine
imposed); Yeager v. Yeager, 622 S.W.2d 339 (Mo. App. 1981) (husband’s
appeal of contempt order in dissolution action rendered moot when he paid
amounts due and purged himself of contempt); Herring v. Herring, 236
Ga. 43, 222 S.E.2d 331 (1976) (civil contempt appeal rendered moot when
contemnor paid entire purge amount); Clement v. Clement, 295 Minn. 569,
204 N.W.2d 819 (1973); Reap’s Appeal, 88 Pa. Super. 147 (1926) (civil
contemnor has choice to either appeal finding of contempt or purge it by
voluntarily paying fine and thus ending matter).
22
See, e.g., Marshall v. Whittaker Corp., Berwick Forge, etc., 610 F.2d 1141
(3d Cir. 1979) (appeal from civil contempt is moot once civil contempt has
been purged); Securities and Exchange Commission v. Sloan, 535 F.2d 679
(2d Cir. 1976) (appeal from order of contempt is moot where contemnor
purges himself of contempt and no live controversy remains); Matter of
Berry, 521 F.2d 179 (10th Cir. 1975) (where contemnor has complied
and contempt has been purged, appeal of contempt order is moot); United
States v. Watson Chapel School District No. 24, 446 F.2d 933 (8th Cir.
1971) (when parties comply and have purged themselves of contempt,
there is no justiciable controversy and appeal must be dismissed).
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BRAMBLE v. BRAMBLE
Cite as 303 Neb. 380
An example is the case of Clement v. Clement.23 In that case,
the father was found to be in contempt of court for failing to
make court-ordered child support payments. He was ordered
committed to jail for 45 days unless he purged himself by
making an arrears payment of $1,450. A stay of enforcement
was ordered for a period of 30 days to permit the father to
appeal, but he neither appealed nor paid the purge amount. He
was later apprehended, and, the same day, he purged himself
of contempt by making the required payment. He then sought
appellate review of the order finding him in contempt. The
Minnesota Supreme Court dismissed the appeal as moot, rea-
soning “[t]here is nothing before this court to pass on. [The
father] paid monies as he was ordered to do to purge himself
of the contempt.”24
[8] Like the contemnor in Clement, Lori was presented with
a choice once she was found to be in willful contempt of court
and a sanction and purge plan was put in place: She could
either seek a stay of the sanction pending an appeal or comply
with the purge plan and thereby purge herself of contempt and
end the matter.25 She chose the latter, and fully purged her-
self of contempt by paying into the clerk of the district court
the sum of $5,073, which has since been disbursed to James.
The purpose of the civil contempt proceeding—to preserve
and enforce the rights of the parties and to compel obedience
to the decree26—has been accomplished. On these facts, we
23
Clement, supra note 21.
24
Id. at 569, 204 N.W.2d at 819.
25
See, e.g., In re Crystal Palace Gambling Hall, Inc., 817 F.2d 1361,
1365 (9th Cir. 1987) (“[i]f the appellants believed that the district court
incorrectly issued an order, their remedy was to appeal and request a stay
pending the appeal”); In re Marriage of Crow & Gilmore, 103 S.W.3d 778
(Mo. 2003) (in response to civil contempt order, contemnors have two
options: They may purge contempt by complying with order rendering
case moot or may appeal contempt order).
26
See Smeal Fire Apparatus Co., supra note 2.
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find Lori’s appeal seeking to overturn the finding of contempt
presents no justiciable issue and is moot.
No Legally Cognizable
Interest R emains
Lori does not dispute that she voluntarily and completely
complied with the purge order, but she nevertheless urges us
to find that she still has a legally cognizable interest in over-
turning the finding of contempt. Specifically, she argues that
because she was “deemed a contemnor”27 that could have impli-
cations if she is involved in future contempt proceedings.
Because Lori has fully purged herself of contempt, she is
seeking, in essence, an advisory appellate opinion on whether
the contempt order was correct, to use in a future contempt
action that may never occur. Our mootness analysis might be
different in an appeal where the purge provision has not yet
been fully satisfied, but that is not the case here. On these
facts, Lori has no legally cognizable interest in this appeal and
it is moot.28
Public Interest Exception
Inapplicable
[9] Lori argues that even if her appeal is moot, we should
nevertheless review it under the public interest exception to the
mootness doctrine. An appellate court may choose to review
an otherwise moot case under the public interest exception if
it involves a matter affecting the public interest or when other
rights or liabilities may be affected by its determination.29 This
is not such a case.
[10] The public interest exception to the mootness doctrine
requires consideration of the public or private nature of the
27
Reply brief for appellant at 3.
28
See Professional Firefighters Assn., supra note 14.
29
Nesbitt v. Frakes, 300 Neb. 1, 911 N.W.2d 598 (2018).
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question presented, the desirability of an authoritative adjudi-
cation for future guidance of public officials, and the likelihood
of future recurrence of the same or a similar problem.30 Lori’s
appeal challenges the trial court’s interpretation of specific
terms in her dissolution decree, and findings regarding the
parties’ particular actions. The questions presented are private,
not public, in nature, and the likelihood of the same or similar
issues recurring in another case is remote.31
[11] Moreover, application of the public interest excep-
tion is inappropriate where, as here, the issues presented
on appeal do not inherently evade appellate review.32 As
explained above, Lori had an opportunity to challenge the
district court’s finding of contempt by seeking a stay pending
appeal, but instead, she chose to purge herself of contempt and
comply with the order. The public interest exception has no
application on these facts.
CONCLUSION
This appeal is moot, because Lori has fully and voluntarily
purged herself of the civil contempt finding she seeks to over-
turn. No legally cognizable interest continues to exist, and the
public interest exception to the mootness doctrine does not
apply. We therefore dismiss this appeal because it presents no
justiciable issues.
A ppeal dismissed.
30
Id.
31
See Putnam, supra note 17 (public interest exception does not apply when
appeal presents issues that rest on terms of particular sale and particular
deeds and bequests, because highly unlikely another case could present
similar factual situation).
32
See id.