COMMON PITFALLS TO AVOID IN CIVIL CASES WHEN FILING
A NOTICE OF APPEAL TO THE SUPREME COURT OF NEVADA

By Micah S. Echols, Esq.

Mr. Echols is an associate attorney at Marquis & Aurbach in Las Vegas and can be reached at mechols@marquisaurbach.com or (702) 382-0711. Mr. Echols has handled numerous appeals involving issues of real estate, construction, probate and trust, insurance coverage, employment, and punitive damages.

I. INTRODUCTION.

Although filing a notice of appeal to the Supreme Court of Nevada in civil cases seems like a very basic task, the failure to follow the strict procedural requirements may result in a dismissal of the appeal. In Nevada, the timely filing of a notice of appeal is jurisdictional. See, e.g., Walker v. Scully, 99 Nev. 45, 46, 657 P.2d 94, 94–95 (1983); Zugel by Zugel v. Miller, 99 Nev. 100, 101, 659 P.2d 296, 297 (1983). Neither the district court nor the Supreme Court can extend the period in which to timely file a notice of appeal. Walker, 99 Nev. at 46, 657 P.2d at 94–95 (stating that the district court cannot extend the period in which to file a notice of appeal); NRAP 26(b) (“[T]he court may not enlarge the time for filing a notice of appeal.”) (referring to the Supreme Court). In order to comply with substantive requirements, the individual filing the notice of appeal should be familiar with the district court proceedings. Although the failure to strictly comply with substantive requirements is not jurisdictional, a notice of appeal that does not name each order appealed from may limit the issues that can be addressed on appeal. See Charmicor, Inc. v. Bradshaw Fin. Co., 92 Nev. 310, 313, 550 P.2d 413, 415 (1976) (quoting NRAP 3(c) and stating “only those parts of the judgment which are included in the notice of appeal will be considered by the appellate court”) (citation omitted). Cf. Ross v. Giacomo, 97 Nev. 550, 554–55, 635 P.2d 298, 301 (1981) (stating that the court has refused to require the notice of appeal to be a “technical trap for the unwary draftsman,” and allowing reasonable inferences in the notice of appeal as to which order is being appealed from), overruled on other grounds, Winston Prods. Co. v. DeBoer, 134 P.3d 726, 731 (Nev. 2006). The procedural and substantive requirements for the notice of appeal may change, however, if there are post-judgment motions filed in the district court. The relevant inquiry is whether the post-judgment motions toll the time to appeal, as listed in NRAP 4(a)(4), which include: “(i) a motion for judgment under [NRCP] 50(b); (ii) a motion under [NRCP] 52(b) to amend or make additional findings of fact; (iii) a motion under [NRCP] 59 to alter or amend the judgment; (iv) a motion for a new trial under [NRCP] 59.” See discussion, infra, Section IV. This article will provide basic information regarding the procedural and substantive requirements in civil cases for filing a notice of appeal to the Supreme Court of Nevada and will also discuss how post-judgment motions in the district court may affect these procedural and substantive requirements.

II. PROCEDURAL REQUIREMENTS.

A. FINAL JUDGMENT REQUIREMENT.
As a general rule, an appeal is usually taken from a final order or judgment. See NRAP 3A(b)(1) (“An appeal may be taken: From a final judgment in an action or proceeding commenced in the court in which the judgment is rendered.”). A final order adjudicates all the rights and liabilities of all the parties. Rae v. All Am. Life and Cas. Co., 95 Nev. 920, 922, 605 P.2d 196, 197 (1979). However, interlocutory appeals are available if the district court certifies an order or judgment as final under NRCP 54(b) or if a court rule or statute specifically authorizes an appeal from a specific type of order. For example, NRS 155.190 lists fifteen types of orders in probate proceedings that are independently appealable. Similarly, NRS 38.247 lists six types of orders in arbitration proceedings that are independently appealable. NRAP 3A(b)(2)(3) and (4) also list various types of interlocutory orders that are independently appealable, such as an order granting or denying an injunction, and an order appointing or refusing to appoint a receiver. So, unless there is a specific exception, an appeal must be taken from a final judgment or order.

B. AGGRIEVED PARTY REQUIREMENT.
NRAP 3A(a) requires an appealing party to be “aggrieved” by the order or judgment appealed from. An aggrieved party is a party that is adversely or substantially affected by a district court’s ruling. Valley Bank of Nev. v. Ginsburg, 110 Nev. 440, 446, 874 P.2d 729, 734 (1994) (citation omitted). For purposes of NRAP 3A(a), to be considered a party, the person or entity must have been served with process, appeared in the court below, and been named as a party of record in the trial court. Id.; 110 Nev. at 448, 874 P.2d at 735 (citation omitted). Although a person or entity that is not a party cannot appeal, relief may be available from the Supreme Court by way of extraordinary writ. Gladys Baker Olsen Family Trust by Olsen v. Olsen, 109 Nev. 838, 841–42, 858 P.2d 385, 387 (1993). As such, if the party filing the notice of appeal is not both a party and aggrieved by the district court’s decision, the appeal is subject to dismissal.

C. FILING AND SERVICE OF THE NOTICE OF APPEAL.
The notice of appeal must be filed in the district court within 30 days of service of notice of entry of the order appealed from, unless an applicable statute or court rule provides otherwise. NRAP 4(a)(1). Although service of the notice of entry of final order or judgment by mailing is acceptable, an appellant may file an untimely notice of appeal and argue that he never received the notice of entry of the final order or judgment. See Miller, 99 Nev. at 101, 659 P.2d at 297. Therefore, the suggested method of service of the notice of entry of final order or judgment is by certified mail or by acknowledgement. Id. If the Supreme Court determines that there is a factual issue regarding when the notice of entry of the final order or judgment was served, the case may be remanded to the district court for an evidentiary hearing, and the burden of proof is on the respondent. Id. Service of the notice of appeal should be made on all parties, or their counsel if represented, that have appeared in the district court. NRAP 3(d). However, if service is not made on all parties, the notice of appeal is, nevertheless, valid as to those parties upon whom service was made. See Bliss v. Grayson, 25 Nev. 329, __, 59 P. 888, 889 (1900).

D. FILING FEES FOR THE NOTICE OF APPEAL.
The filing fees for a notice of appeal are currently $250.00 for a cost bond on appeal made payable to the district court, as described in NRAP 7; $250.00 for a Supreme Court filing fee, for each notice of appeal, made payable to the Supreme Court and tendered to the district court, as described in NRAP 3(f); and any filing fee charged by the district court itself. The Eighth Judicial District Court currently charges a $24.00 filing fee for a notice of appeal. See NRS 19.013(1). Although the district court clerk is not obligated to file a notice of appeal without the proper filing fees, the clerk does have a duty to accept a notice of appeal, even without the proper fees, since the notice of appeal is effective on the day it is received by the clerk. Whitman v. Whitman, 108 Nev. 949, 951–52, 840 P.2d 1232, 1233–34 (1992).
In summary, a notice of appeal must comply with the final judgment and the aggrieved party requirements. The notice of appeal also must be timely and properly filed and served with the proper filing fees. The failure to comply with these procedural requirements may result in the dismissal of the appeal.

III. SUBSTANTIVE REQUIREMENTS.

A. APPEALABLE DETERMINATION REQUIREMENT.
NRAP 3A(b) identifies the substantive matters from which an appeal may be taken. Among the orders listed is “any special order made after final judgment.” NRAP 3A(b)(2). There is extensive case law on what kinds of orders constitute special orders made after final judgment, but no attempt will be made to enumerate those orders for purposes of this article. However, it is worthwhile to mention that the Supreme Court has identified a post-judgment order granting attorney’s fees and costs as a special order made after final judgment, and thus independently appealable. Thomas v. City of North Las Vegas, 127 P.3d 1057, at n.5 (Nev. 2006). Because a motion for attorney’s fees and costs may possibly not be adjudicated until after the time to file a notice of appeal on the underlying final judgment or order, there may be a need to file a separate notice of appeal. The substantive matters from which an appeal may be taken can also be identified by statute or court rule. Ginsburg, 110 Nev. at 444, 874 P.2d at 732–33 (citation omitted); see related discussion, supra, Section II.A. The Supreme Court has universally held that it is a court of limited jurisdiction and will only entertain an appeal when the appeal is authorized by statute or court rule. Id. Therefore, a notice of appeal must also identify a substantively appealable order for the Supreme Court to properly have jurisdiction over the appeal.

B. CONTENT OF THE NOTICE OF APPEAL.
NRAP 3(c) requires the notice of appeal to “specify the party or parties taking the appeal; . . . designate the judgment, order, or part thereof appealed from; and shall name the court to which the appeal is taken.” In describing the order or judgment appealed from, the Appendix of Forms in the Nevada Rules of Appellate Procedure suggests that the specific filing date of the order or judgment appealed from be noted in the notice of appeal. See Form 1. As discussed, the Supreme Court will not consider parts of the judgment which are not included in the notice of appeal. See Charmicor, Inc., 92 Nev. at 313, 550 P.2d at 415 (quoting NRAP 3(c) and stating “only those parts of the judgment which are included in the notice of appeal will be considered by the appellate court”) (citation omitted). However, so long as the notice of appeal reasonably puts the respondent on notice of what order is being appealed, the court will consider those parts of the judgment. See Ross, 97 Nev. at 554–55, 635 P.2d at 301 (stating that the court has refused to require the notice of appeal to be a “technical trap for the unwary draftsman,” and allowing reasonable inferences in the notice of appeal as to which order is being appealed from). In light of the requirement that a party can only appeal from substantively appealable orders, the Supreme Court has clarified that it will consider interlocutory orders which are not independently appealable when the appeal is taken from the final order or judgment. See Consolidated Generator-Nevada v. Cummins Engine Co., 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998) (stating “Although these orders are not independently appealable, since CGN is appealing from a final judgment the interlocutory orders entered prior to the final judgment may properly be heard by this court.”) (citation omitted). Therefore, the notice of appeal should strictly comply with NRAP 3(c) in providing the proper content of the notice of appeal, as well as NRAP 3A(b) in only specifying appealable orders.

IV. EFFECT OF POST-JUDGMENT MOTIONS.

A. TOLLING EFFECT OF CERTAIN POST-JUDGMENT MOTIONS.
NRAP 4(a)(4) lists the post-judgment tolling motions: “(i) a motion for judgment under [NRCP] 50(b); (ii) a motion under [NRCP] 52(b) to amend or make additional findings of fact; (iii) a motion under [NRCP] 59 to alter or amend the judgment; (iv) a motion for a new trial under [NRCP] 59.” These are the only post-judgment tolling motions. Although there are other post-judgment motions, they do not toll the time to appeal. For example, a motion for attorney’s fees and costs filed after the final judgment is a special order made after final judgment and does not toll the time to appeal a final judgment. Thomas, 127 P.3d at n.5. A motion for reconsideration is also not a tolling motion. Chapman Indus. v. United Ins. Co. of Am., 110 Nev. 454, 458, 874 P.2d 739, 741 (1994) (citation omitted). In order to effectively toll the time to file a notice of appeal, the tolling motion itself must be timely filed. See NRAP 4(a)(4). The Supreme Court recently clarified that the 10-day period in which to file a post-judgment tolling motion is calculated by counting only judicial days for the 10 days, and if service is accomplished by mailing or electronic means, an additional 3 calendar days are added after the 10 days. DeBoer, 134 P.3d at 731. When any post-judgment motion is timely filed, the 30 days to file a notice of appeal from the final judgment or order (or the post-judgment tolling motion itself, if it is appealable) stops, and the 30 days to file a notice of appeal is reset. NRAP 4(a)(4) & (5). DeBoer explained that a post-judgment tolling motion also tolls the time to file an appeal from a special order entered after judgment, such as an order granting attorney’s fees and costs. 134 P.3d at 732. The notice of entry of order resolving the final post-judgment tolling motion triggers the 30-day period in which to file a notice of appeal. Id.

B. EFFECT OF TIMELY-FILED NOTICE OF APPEAL.
When a notice of appeal is timely filed, the district court cannot enter any orders regarding the issues that are pending before the Supreme Court. See Mack-Manley v. Mack, 122 Nev. 75, __, 138 P.3d 525, 529–30 (2006). However, the district court is free to make orders on collateral issues that are not pending before the Supreme Court. Id. In the event that a district court enters an order on an issue pending before the Supreme Court after the district court has been divested of jurisdiction, the district court’s order is void, but the district court may hear such a matter and certify to the Supreme Court how it intends to rule. Smith, 109 Nev. at 740–41, 856 P.2d at 1388. Upon a party’s motion filed in the Supreme Court, the Supreme Court then has discretion to remand to the district court to decide the particular issue. Mack, 122 Nev. at __, 138 P.3d at 530. The district court’s decision on remand then becomes an appealable order itself, and an aggrieved party has the option of filing a notice of appeal. Id. This process of allowing the district court to decide an issue currently pending before the Supreme Court, upon the Supreme Court’s approval and remand, was first adopted in Huneycutt v. Huneycutt, 94 Nev. 79, 575 P.2d 585 (1978) and is known as the Huneycutt procedure. See, e.g., Smith, 109 Nev. at 740–41, 856 P.2d at 1388–89; Mack, 122 Nev. at __, 138 P.3d at 530.

C. EFFECT OF PREMATURELY-FILED NOTICE OF APPEAL.
In the event that a notice of appeal is filed during the pendency of any post-judgment tolling motion, or after the oral pronouncement of an order but before the written order, the notice of appeal is considered premature. See NRAP 4(a)(6). Although a notice of appeal usually divests the district court of jurisdiction, a premature notice of appeal does not divest the district court of jurisdiction. Id.; see also Smith v. Emery, 109 Nev. 737, 740, 856 P.2d 1386, 1388 (1993) (citation omitted). There are certain exceptions to this general rule that the district court is divested of jurisdiction; for example, a motion for stay according to NRCP 62(d) can be made “at or after the time of the filing of the notice of appeal.” And, a motion for correction or modification of the record according to NRAP 10(c) must be submitted to the district court if a difference arises concerning the district court record. According to the former NRAP 4(a)(2), the Supreme Court treated a premature notice of appeal as untimely, and consistently held that such a notice of appeal “shall have no effect.” See, e.g., Rust v. Clark County School Dist., 103 Nev. 686, 688, 747 P.2d 1380, 1382 (1987). However, on December 16, 2004, the Supreme Court issued an order amending NRAP 4(a), stating that it was “unduly harsh” to disallow premature appeals, especially when such appeals present meritorious issues. See Order Amending Rule 4(a) of the Nevada Rules of Appellate Procedure, ADKT 381 (Dec. 16, 2004). The current NRAP 4(a)(6) now states that a notice of appeal filed after the pronouncement of a decision or order but before the written entry will automatically be considered as filed “on the date of and after entry of the order, judgment or written disposition of the last-remaining timely motion” (so long as the Supreme Court does not dismiss the deficient notice of appeal in the interim). Additionally, NRAP 4(a)(7) allows a party to file an amended notice of appeal to cure any such deficiency without incurring any additional filing fees. Regardless of the timing of the notice of appeal, an amended notice of appeal may be necessary to identify any post-judgment tolling motions from which an appeal may be taken.
In summary, post-judgment motions may affect the time to file a notice of appeal if the motion is defined as tolling. The listed post-judgment tolling motions stop the time to file a notice of appeal as to any final order judgment, the tolling motion itself, and any special orders entered after judgment. Additionally, premature notices of appeal do not divest the district court of jurisdiction, but a timely filed notice of appeal may divest the district court of jurisdiction if the matter before the district court is currently on appeal to the Supreme Court. Even then, the Huneycutt procedure can be followed to allow a district court to decide an issue upon remand that is pending before the Supreme Court.

V. CONCLUSION.

Although the notice of appeal is a relatively basic document, it must comply with certain procedural and substantive requirements discussed in this article. The failure to comply with these requirements may result in a dismissal of the appeal or a limitation of the issues that can be presented in the appeal. The timing of the filing of the notice of appeal must also take into account whether the time to appeal has been tolled by post-judgment motions. Because of these strict requirements, an adequate amount of time should be given to reviewing the district court proceedings to ensure proper compliance before filing the notice of appeal.