Rust v. Clark County School Dist.

• Decision Date: 31 December 1987
• Docket Number: No. 16338,16338
• Parties: , 44 Ed. Law Rep. 736 Dayle K. RUST, Appellant, v. CLARK COUNTY SCHOOL DISTRICT, Governmental Agency of Clark County; Board of Trustees of Clark County School District, Virginia Brooks Brewster, Donald R. Faiss, Robert Forbuss, Bendorf and Shirley Holst, in their capacities as School Board Trustees; Robert Wentz, in his capacity as Superintendent of the Clark County Schools, Respondents.
• Court: Nevada Supreme Court

Page 1380

747 P.2d 1380

103 Nev. 686, 44 Ed. Law Rep. 736

Dayle K. RUST, Appellant, v. CLARK COUNTY SCHOOL DISTRICT, Governmental Agency of Clark

County; Board of Trustees of Clark County School District,

Virginia Brooks Brewster, Donald R. Faiss, Robert Forbuss,

Bendorf and Shirley Holst, in their capacities as School

Board Trustees; Robert Wentz, in his capacity as

Superintendent of the Clark County Schools, Respondents.

No. 16338.

Supreme Court of Nevada.

Dec. 31, 1987.

Rehearing denied April 12, 1988.

[103 Nev. 687] Jones, Jones, Close & Brown and Will Kemp, Las Vegas, for appellant.

Thomas J. Moore, Las Vegas, for respondents.

OPINION

SPRINGER, Justice.

This is the second time this case has come before this court on appeal. The facts of this case are reported in our prior opinion in this matter. See Rust v. Clark County School District, 100 Nev. 372, 683 P.2d 23 (1984). In Rust, we concluded that, although appellant had been guilty of misconduct, the penalty imposed for his single unexcused absence was so severe that it amounted to an abuse of discretion. We therefore reversed the prior judgment of the district court, and remanded the case to the Board of Trustees "for imposition of a penalty consistent with the views expressed in [our prior] opinion." Id. at 376, 683 P.2d at 26. On remand, the Board of Trustees reinstated appellant, but reduced him from a principal to an assistant principal. The Board imposed an additional penalty of suspension of his pay and benefits during the period between his dismissal and his reinstatement. Appellant petitioned the district court for judicial review of the Board's decision.

On January 11, 1985, following a hearing, the district court stated its intention to affirm the decision of the Board of Trustees and also announced that it would not file a written decision. Appellant filed a notice of appeal on January 16, 1985. Thereafter, on March 6, 1985, the district court entered a written judgment affirming the decision of the Board of Trustees. Respondents served written notice of entry of this judgment on appellant on March 21, 1985. Appellant, however, failed to file a new notice of appeal. Respondents contend, therefore, that appellant's notice of appeal was premature, and that the premature notice failed to vest jurisdiction in this court. We agree.

Generally, a premature notice of appeal fails to vest jurisdiction in this court. See NRAP 4(a); Hill v. Warden, 96 Nev. 38, 604 P.2d 807 (1980); Paradise Palms v. Paradise Homes, 93 Nev. 488, 568 P.2d 577 (1977); Elko-Tuscarora Co v. Wines, 24 Nev. 305, 53 P. 177 (1898). There are sound reasons for this rule. First, the proper and timely filing of a notice of appeal is jurisdictional. See Mahaffey v. Investor's Nat'l Security, 102 Nev. 462, 725 P.2d 1218 (1986); Zugel v. Miller, 99 Nev. 100, 659 P.2d 296 (1983). Jurisdictional rules go to the very power of this court to act. They must, accordingly, be clear and absolute in order to give all fair notice of what is required to bring a matter properly before this court. Indeed, a timely notice of appeal divests the district court of jurisdiction to act and vests jurisdiction in this court. See Wilmurth v. District Court, 80 Nev. 337, 393 P.2d 302 (1964). Prior to the entry of a final judgment the district court remains free to reconsider and issue a written judgment different from its oral pronouncement. See Tener v. Babcock, 97 Nev. 369, 632 P.2d 1140 (1981); Lagrange Constr. v. Del E. Webb Corp., 83 Nev. 524, 435 P.2d 515 (1967); see also Rae v. All American Life & Cas. Co., 95 Nev. 920, 605 P.2d 196 (1979). The point at which jurisdiction is transferred must, therefore, be sharply delineated.

Appellant contends that the district court misled appellant and induced him to file a premature notice of appeal by announcing that it did not intend to enter a written judgment, and that respondents caused confusion by causing a written judgment to be entered. This argument is unpersuasive. An oral pronouncement of judgment is not valid for any purpose, NRCP 58(c); therefore, only a written judgment has any effect, and only a written judgment may be appealed. See Tener v. Babcock, 97 Nev. 369, 632 P.2d 1140 (1981); Fitzharris v. Phillips, 74 Nev. 371, 333 P.2d 721 (1958). The district court's oral pronouncement from the bench, the clerk's minute order, and even an unfiled written order are ineffective for any purpose and cannot be appealed. See Farnham v. Farnham, 80 Nev. 180, 391 P.2d 26 (1964); Musso v. Triplett, 78 Nev. 355, 372 P.2d 687 (1962). Appellant, rather than filing a premature notice of appeal, should have requested a written judgment from the district court. At the very least, appellant should have filed an amended notice of appeal after the written judgment was entered on March 6, 1985. Further, we are not persuaded that counsel for respondents acted improperly in any way by seeking a written order from the district court. Nothing precluded appellant from filing an amended notice of appeal after written notice of entry of the written judgment was served on him. See Stoermer v. Edgar, 104 Ill.2d 287, 84 Ill.Dec. 440, 472 N.E.2d 400 (1984).

Finally, it has been suggested that appellant's premature notice of appeal should be excused as a technical defect pursuant to Knox v. Dick, 99 Nev. 514, 665 P.2d 267 (1983). We disagree. Unlike the circumstances present in Knox, this case involves a notice of appeal that is truly premature. There is nothing technical about it. In Knox, a written judgment was appealed in a timely fashion; there was nothing wrong with the judgment other than the fact that the district court had not certified it as final pursuant to NRCP 54(b). Also, the judgment in Knox was unquestionably certifiable as final pursuant to NRCP 54(b). We concluded, therefore, that the prematurity of the notice of appeal in that case was purely technical. Contrarily, in this case, no written judgment was entered by the district court; and, consequently, there was no judgment to appeal from at the time appellant's notice of appeal was filed. As a result, appellant's premature notice of appeal did not divest the district court of jurisdiction to act at that time. See Wilmurth v. District Court, 80 Nev. 337, 393 P.2d 302 (1964).

Allowing a premature notice of appeal to be valid under the facts of this case would impose an unnecessary burden on this court to determine on an ad hoc basis whether we have power to act and would so obscure rules of jurisdiction as to be detrimental to the judicial process. For example, if notices of appeal filed after the oral rendition of judgment, but before a final written judgment is entered, are held to be valid, it would become difficult, if not impossible, to determine when or if a final oral judgment has been rendered. Under such circumstances, this court would be required to issue numerous orders, and to grapple with fine and nonexistent distinctions between valid and invalid premature notices of appeal. Also, it would be difficult to determine when the thirty-day appeal period began to run under NRAP 4(a), whether post-judgment motions were timely and whether they would toll the appeal period that may or may not have commenced to run. Such a rule would render uncertain the validity of findings of fact, conclusions of law and a written judgment filed after a "timely" notice of appeal had been filed. Also, such a rule would ignore the possibility (and the possibility is not remote) that no judgment would ever be properly entered. In addition, questions would arise as to when a notice of cross-appeal would be due under such a flexible rule of jurisdiction. In light of these and other considerations, we decline to adopt such a rule in this state.

Other states have held that a premature notice of appeal is ineffective to vest jurisdiction in an appellate court to review a subsequently entered final judgment. ¹ See Stoermer v. Edgar, 104 Ill.2d 287, 84 Ill.Dec. 440, 472 N.E.2d 400 (1984); Mangus v. Progress Quarries, Inc., 290 Or. 377, 622 P.2d 319 (1981); Glass v. Windsor Navigation Company, 81 Wash.2d 726, 504 P.2d 1135 (1973); Vassallo v. Texaco, Inc., 73 A.D.2d 642, 422 N.Y.S.2d 747 (1979). Also, in analogous cases, where a notice of appeal was filed during the pendency of a timely post-trial motion, the notices have been held to be premature and of no effect. See Pessolano v. George R. Price & Associates, 159 Ga.App. 340, 283 S.E.2d 317 (1981); Rutledge v. Vonfeldt, 564 P.2d 350 (Wyo.1977); see also Gulf Oil Co. v. Mantegna, 167 Ga.App. 844, 307 S.E.2d 732 (1983); Blanchette v. Martell, 52 Ill.App.3d 1029, 10 Ill.Dec. 863, 368 N.E.2d 458 (1977). We conclude that the result of these authorities is sound.

We conclude that we lack jurisdiction to entertain this appeal. Accordingly, we dismiss this appeal. ²

GUNDERSON, C.J., and YOUNG and ZENOFF, JJ., concur.

MOWBRAY, Justice, dissenting:

Respectfully I dissent.

This appeal is focused on the 1979 dismissal of appellant Dayle K. Rust, a longtime Clark County School District employee and a principal of over twenty years satisfactory service. The School District dismissed Rust for insubordination. That insubordination consisted of visiting Rust's son who was completing a two-year religious mission in Europe. Rust's plans to visit his son were known to and approved by the School District. They were predicated upon a standard policy of the School District which allowed liberal use of earned leave days. Rust had first discussed his trip with the School District's Associate Superintendent for Personnel eight months before his departure. Rust spent many evenings and numerous weekends making the necessary arrangements for the trip so that his school would run smoothly during his absence. The school did so.

Sixteen days before Rust's scheduled departure on October 3, 1979, the School District changed its leave policy. It limited administrators' use of earned leave to...