Preparing your district court case for an appeal to the supreme court of nevada

By Micah S. Echols, Esq.

Ideally, from the time you open a new litigation file, you should prosecute or defend the case with the contemplation that the final judgment may possibly be appealed to the Supreme Court of Nevada. However, if you find yourself at the end of a case and a final judgment has already been entered, you should remember five main steps to properly prepare your District Court case for an appeal to the Supreme Court of Nevada, regardless of whether you are prosecuting or defending the appeal.

This article will provide a brief overview of these five main steps: (1) timing to execute upon or stay a judgment; (2) timing to file post-judgment tolling motions; (3) timing to file other post-judgment motions that are not tolling; (4) timing to file a notice of appeal; and (5) timing to file a cross-appeal. Following these five main steps will help you to avoid potentially waiving issues on appeal or a possible dismissal of your appeal.

1. TIMING TO EXECUTE UPON OR STAY A JUDGMENT

When you file a notice of appeal, the judgment is not automatically stayed. To avoid execution upon the judgment while the appeal is pending, you need to request a stay from the District Court. NRCP 62(a) allows for an automatic 10-day stay upon judgments which begins following service of notice of entry of judgment. If no additional stay has been ordered following the automatic stay, execution proceedings upon the judgment can begin immediately. If you are moving the District Court for a stay, under NRCP 62(d) you must demonstrate both that you are entitled to a stay and that the prevailing party’s interests will be protected—usually by a supersedeas bond for stays of monetary judgments.

The Supreme Court has allowed other collateral to substitute for a supersedeas bond so long as the prevailing party’s interests are adequately protected.¹ When district courts are faced with staying non-monetary judgments, such as the transfer of real property, the determination of an entitlement to a stay and the supersedeas bond amount can be more difficult. In fact, one court in the United States Bankruptcy Court for the District of Nevada has held that a stay pending appeal is not available for the transfer of real property.²

If you are unsuccessful in moving the District Court for a stay, follow the guidelines of NRAP 8 to seek a stay from the Supreme Court after you have filed the notice of appeal. There is no firm deadline to seek a stay from the Supreme Court, but you should file the motion for stay in enough time to prevent execution upon the judgment. Of course, depending on the type of judgment you are appealing, there may be no need to request a stay.

2. TIMING TO FILE POST-JUDGMENT TOLLING MOTIONS

Post-judgment tolling motions tend to be more effective following a jury trial since trial judges have the opportunity to review the jury’s findings for error instead of their own findings. A tolling motion can be a valuable tool to advance your client’s position on appeal even before the appeal has started. If your post-judgment tolling motion is timely-filed, the time to appeal from the final judgment is “tolled” until after the tolling motions are resolved. NRAP 4(a)(4) lists the only motions that are tolling: (1) a motion for judgment as a matter of law under NRCP 50(b); (2) a motion under NRCP 52(b) to amend or make additional findings of fact; (3) a motion under NRCP 59 to alter or amend the judgment; and (4) a motion for a new trial under NRCP 59. According to the stated rules, these motions must be filed within 10 days of service of the notice of entry of judgment to effectively toll the time to appeal the final judgment. The Supreme Court has clarified that the counting for the 10 days does not include intervening Saturdays, Sundays, and nonjudicial days according to NRCP 6(a).³ And, any additional time added for service is counted by calendar days after the initial 10 days.⁴ In addition to tolling the time to file a notice of appeal, a tolling motion also tolls the time to appeal from special orders made after final judgment, such as orders awarding attorney fees and costs.⁵

In the event that your tolling motion is not filed within the allowed 10 days, you should still file the motion, with the understanding that the time to appeal the final judgment is not tolled. If the District Court is inclined to grant your motion after a notice of appeal has been filed, the District Court does not technically have jurisdiction to enter an order dealing with subject matter that is pending on appeal, but the District Court may recommend its inclination to enter such an order to the Supreme Court.⁶ The Supreme Court then has the authority to remand the matter to the District Court to enter the order according to the District Court’s inclinations.⁷ So, if you have a legitimate legal argument to somehow change the judgment, you should raise it in the District Court even if your motion is late.

3. TIMING TO FILE OTHER POST-JUDGMENT MOTIONS THAT ARE NOT TOLLING

If you prevail in the District Court, you should file a motion for attorney fees soon after the entry of judgment instead of waiting for the conclusion of the appeal so that post-judgment interest can accrue on the award of fees. And, you can also force the issue of execution upon the judgment for fees to require the opposing party to post a supersedeas bond. But, there are no specific time limits in which to request attorney fees from the District Court.⁸ However, if you prevail in the District Court, you cannot wait to request fees until after the time for the non-prevailing party to appeal has lapsed; otherwise, such an award of fees is deemed prejudicial.⁹ In other words, if the non-prevailing party decides not appeal the final judgment, your motion for fees must be filed within the time to appeal the final judgment. Otherwise, the non-prevailing party is left in the prejudicial position of not being able to appeal the final judgment but having an award of fees entered against him.

A motion for attorney fees must be supported by evidence of the fees incurred and must analyze the factors enumerated in Brunzell v. Golden Gate National Bank, 85 Nev. 345, 455 P.2d 31 (1969), which include the advocate’s professional qualities, the nature of the litigation, the work performed, and the result.¹⁰ Additionally, the order granting attorney fees must state a basis for granting the fees, or the award of fees is deemed an abuse of discretion.¹¹ So, after the litigation is complete, you should take the time to ensure that your written award of fees does not fail because of a procedural issue.

According to NRS 18.110(1), a memorandum of costs must be filed within 5 days of the entry of judgment. And, NRS 18.110(4) requires that a motion to retax costs must be filed within 3 days after service of the memorandum. The memorandum of costs must be supported by documentation substantiating the costs to withstand appellate review.¹² Since there is very little time to gather all the documents required to support your request for costs, it is a good idea to keep a separate costs folder in your file.

District Court Rule 13(7) allows litigants to file a motion for reconsideration upon leave of court. Other local rules, such as Eighth Judicial District Court Rule 2.24(b) and Second Judicial District Court Rule 12(8), require that a motion for reconsideration or rehearing be filed within 10 days of service of notice of entry of judgment. Although an order granting or denying a motion for reconsideration is not itself appealable, the Supreme Court will consider arguments raised in the motion for reconsideration so long as the District Court considers your motion for reconsideration on the merits, your notice of appeal is filed after the order disposing of the motion for reconsideration, and the motion for reconsideration and order are included in the record on appeal.¹³ Due to the short time you have to file a motion for reconsideration and have it properly preserve issues for your appeal, you should almost always have your motion for reconsideration heard on an order shortening time.

4. TIMING TO FILE A NOTICE OF APPEAL

The notice of appeal is a basic document that does nothing more than put the Supreme Court on notice of which District Court orders you believe were decided incorrectly. NRAP 4(a)(1) requires that a notice of appeal be filed in the District Court within 30 days after service of notice of entry of the order from which an appeal is taken. If a tolling motion has been timely filed, NRAP 4(a)(4) allows the notice of appeal to be filed within 30 days after service of notice of entry of the order disposing of the final tolling motion. The timely filing of a notice of appeal is jurisdictional in Nevada, and neither the District Court nor the Supreme Court has authority to extend the deadline to file a notice of appeal.¹⁴

Your appeal to the Supreme Court must be taken from an appealable order. NRAP 3A(b) lists many of the orders that can be appealed. Other appealable orders are found in NRS 155.190 and NRS 38.547. However, if the particular order to be challenged is not an appealable order, it can often be challenged within the context of an appeal from the final judgment.¹⁵ If you are unfamiliar with the basic rules for perfecting an appeal, prior to filing the notice of appeal you should consult the Supreme Court docketing statement, which can be downloaded from the Court’s website: www.nvsupremecourt.us. If you have not properly perfected your appeal, occasionally the jurisdictional defect can be corrected during the pendency of the appeal, depending on the type of jurisdictional defect.¹⁶ However, some jurisdictional defects, such as filing your notice of appeal late, cannot be corrected and will result in the dismissal of your appeal. As a general rule, if you are unsure whether an appeal is timely or whether the particular order is appealable, you should go ahead and file the notice of appeal since you may not actually have a jurisdictional defect.

5. TIMING TO FILE A CROSS-APPEAL

If you have prevailed in the District Court, you may still want to file your own notice of appeal if you did not prevail on all of your client’s claims. NRAP 4(a)(2) allows you to file a cross-appeal within 14 days of service of the first notice of appeal or within the original time to appeal “whichever period last expires.” When you file a cross-appeal, it is properly designated as a “notice of appeal” instead of a “notice of cross-appeal.”¹⁷ A cross-appeal arises as an operation of law when multiple notices of appeal are filed.¹⁸ So, the cross-appeal is subject to all the same requirements of a notice of appeal, including the timely filing of a cross-appeal and properly identifying the orders from which an appeal is taken.¹⁹

If you are contemplating the filing of a cross-appeal, the relevant inquiry is whether your client has been aggrieved by the judgment.²⁰ In other words, a cross-appeal is proper if your client requested something in the District Court but did not receive it. If your client based its request on various alternative theories that the District Court rejected, but the District Court still awarded your client the total recovery requested, then technically your client is not aggrieved, and you should not file a cross-appeal.

CONCLUSION

After a final judgment is entered in the District Court, you should be aware of the various deadlines for challenging the judgment and preserving the issues for an appeal to the Supreme Court of Nevada. Whether you are prosecuting or defending an appeal, you should be familiar with the five main steps to properly prepare your case for an appeal: (1) timing to execute upon or stay a judgment; (2) timing to file post-judgment tolling motions; (3) timing to file other post-judgment motions that are not tolling; (4) timing to file a notice of appeal; and (5) timing to file a cross-appeal. By following these five main steps, you can avoid possibly waiving issues on appeal or possibly having your appeal dismissed.

¹ Nelson v. Heer, 121 Nev. 832, 122 P.3d 1252 (2005).

² In re Fullmer, 323 B.R. 287 (Bankr. D. Nev. 2005).

⁴ Id.

⁵ Id.

⁶ Mack-Manley v. Mack, 122 Nev. 75, 138 P.3d 525 (2006).

⁷ Id.

⁸ Farmers Ins. Exch. v. Pickering, 104 Nev. 660, 765 P.2d 181 (1988).

⁹ Collins v. Murphy, 113 Nev. 1380, 951 P.2d 598 (1997); Davidsohn v. Steffens, 112 Nev. 136, 911 P.2d 855 (1996).

¹⁰ Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 124 P.3d 530 (2005).

¹¹ Integrity Ins. Co. v. Martin, 105 Nev. 16, 769 P.2d 69 (1989).

¹² Bobby Berosini, Ltd. v. People for the Ethical Treatment of Animals, 114 Nev. 1348, 971 P.2d 383 (1998).

¹³ Arnold v. Kip, 168 P.3d 1050 (Nev. 2007).

¹⁴ Walker v. Scully, 99 Nev. 45, 657 P.2d 94 (1983); NRAP 26(b).

¹⁵ Consol. Generator-Nev. v. Cummins Engine Co., 114 Nev. 1304, 971 P.2d 1251 (1998).

¹⁶ Sustainable Growth Initiative Comm. v. Jumpers, LLC, 122 Nev. 53, 128 P.3d 452 (2006).

¹⁷ KDI Sylvan Pools, Inc. v. Workman, 107 Nev. 340, 810 P.2d 1217 (1991).

¹⁸ Id.

¹⁹ Mahaffey v. Investor’s Nat’l Sec. Co., 102 Nev. 462, 725 P.2d 1218 (1986).

²⁰ Ford v. Showboat Operating Co., 110 Nev. 752, 877 P.2d 546 (1994).