KDI Sylvan Pools, Inc. v. Workman

• Decision Date: 09 May 1991
• Docket Number: No. 21642,21642
• Citation: 810 P.2d 1217,107 Nev. 340
• Parties: KDI SYLVAN POOLS, INC., a Delaware Corporation, Appellant/Cross-Respondent, v. Dale WORKMAN, Respondent/Cross-Appellant, and Tango Pools, Respondent.
• Court: Nevada Supreme Court

Page 1217

810 P.2d 1217

107 Nev. 340

KDI SYLVAN POOLS, INC., a Delaware Corporation Appellant/Cross-Respondent, v. Dale WORKMAN, Respondent/Cross-Appellant and Tango Pools, Respondent.

No. 21642.

Supreme Court of Nevada.

May 9, 1991.

Jimmerson, Davis & Santoro and Lynn M. Hansen, Las Vegas, for appellant/cross-respondent.

McCullough & Ream, Las Vegas, for respondent/cross-appellant.

Marquis, Haney & Aurbach, Las Vegas, for respondent.

OPINION

PER CURIAM:

This is an appeal from an order of the district court granting respondents partial summary judgment. This is also a cross-appeal by respondent Dale Workman from an order of the district court staying execution of the summary judgment for a period of forty-eight hours. ¹ Because our preliminary review of the record revealed potential jurisdictional defects, this court ordered the parties to show cause why this appeal and cross-appeal should not be dismissed for lack of jurisdiction. We have now received the parties' responses.

On July 28, 1989, appellant KDI Sylvan Pools, Inc., (Sylvan) filed a complaint against respondents Dale Workman and Tango Pools. Sylvan alleged that Workman had entered into a contract with Sylvan for the construction of a pool, that Workman had breached that contract, and that Tango, with knowledge of the Sylvan-Workman contract, had entered into a contract to construct the pool for Workman. Sylvan alleged causes of action for breach of contract, interference with a business relationship and interference with a prospective economic advantage.

On September 1, 1989, Tango answered the complaint and denied liability. On September 25, 1989, Workman answered the complaint, denied liability, and filed a counterclaim against Sylvan. According to Workman, Sylvan's representative induced Workman to sign the contract in question by misrepresenting to Workman that the document was a non-binding estimate of the cost of constructing a pool. Workman claimed that Sylvan filed the complaint in order to extract an unfair settlement of Sylvan's false claim against Workman. Workman's counterclaim alleged causes of action for malicious, fraudulent and oppressive abuse of process, intentional infliction of emotional distress and defamation.

On August 17, 1990, the district court entered summary judgment in favor of Workman and Tango against Sylvan. The district court also awarded attorney's fees and costs to Workman and Tango. The district court's judgment did not resolve Workman's counterclaim against Sylvan. Sylvan filed a notice of appeal on September 6, 1990.

On September 12, 1990, the district court filed an order staying for a period of forty-eight hours execution of the attorney's fees and costs portion of the summary judgment. On September 21, 1990, Workman filed a document which he styled "Notice of Cross-Appeal." ²

Sylvan concedes that Workman's counterclaim remains pending below, but argues that the counterclaim was rendered moot by the district court's granting of summary judgment to Workman. Specifically, Sylvan argues incorrectly that Workman's counterclaim is an alternative defense to Sylvan's complaint which is "based on the theory that there was a valid contract that could be enforced against Workman." Sylvan further argues that Workman indicated in the court below that he does not intend to pursue his counterclaim.

Workman's counterclaim is based on a theory that no valid contract was entered into, and Workman's claims for damages based on Sylvan's fraudulent business practices have neither been dismissed nor rendered moot by the district court's order of partial summary judgment. The fact that Workman may not be inclined to pursue his counterclaim also does not render the counterclaim moot or operate as a formal dismissal of the claim. We conclude, therefore, that the district court's summary judgment of August 17, 1990, is not a final appealable judgment pursuant to NRAP 3A(b)(1), because it does not finally resolve the entire action pending below.

In response to this court's order to show cause, Sylvan sought and obtained from the district court an order certifying its judgment as final pursuant to NRCP 54(b). However, because the claims of Workman against Sylvan arise from the same set of facts and transactions that gave rise to Sylvan's claims against Workman, and are closely related to the claims resolved by the district court, the district court's summary judgment is not amenable to certification pursuant to NRCP 54(b). See Hallicrafters Co. v. Moore, 102 Nev. 526, 728 P.2d 441 (1986); see also Mid-Century Ins. Co. v. Cherubini, 95 Nev. 293, 593 P.2d 1068 (1979); Las Vegas Hacienda v. G.L.M.M. Corp., 93 Nev. 177, 561 P.2d 1334 (1977). Thus, the district court erroneously certified as final and appealable its judgment of August 17, 1990. See Taylor Constr. Co. v. Hilton Hotels, 100 Nev. 207, 678 P.2d 1152 (1984) (the district court, through certification of finality, cannot create finality when order is not amenable to certification). We conclude, therefore, that we lack jurisdiction to entertain this appeal, and we dismiss this appeal. ³

Next, no statute or court rule authorizes an appeal from an order of the district court staying execution of a summary judgment. The right to appeal is statutory; where no statutory authority to appeal is granted, no right to appeal exists. See Taylor Constr. Co. v. Hilton Hotels, 100 Nev. 207, 678 P.2d 1152 (1984); Kokkos v. Tsalikis, 91 Nev. 24, 530 P.2d 756 (1975); see also Brunzell Constr. v. Harrah's Club, 81 Nev. 414, 419, 404 P.2d 902, 905 (1965) (an order granting or denying a stay of proceedings is not appealable). We therefore conclude that we lack jurisdiction to entertain this cross-appeal, and we dismiss...