AA Primo Builders, LLC v. Wash.

• Citation: 245 P.3d 1190
• Decision Date: 30 December 2010
• Docket Number: Nos. 53983, 54471.,s. 53983, 54471.
• Parties: AA PRIMO BUILDERS, LLC, A Nevada Limited Liability Company, Appellant, v. Bertral WASHINGTON and Cheri Washington, Respondents. AA Primo Builders, LLC, A Nevada Limited Liability Company, Appellant, v. Bertral Washington and Cheri Washington, Respondents.
• Court: Nevada Supreme Court

245 P.3d 1190

AA PRIMO BUILDERS, LLC, A Nevada Limited Liability Company, Appellant,

v.Bertral WASHINGTON and Cheri Washington, Respondents.

AA Primo Builders, LLC, A Nevada Limited Liability Company, Appellant,

v.Bertral Washington and Cheri Washington, Respondents.

Nos. 53983, 54471.

Supreme Court of Nevada.

Dec. 30, 2010.

Gibbs, Giden, Locher, Turner & Senet LLP and Becky A. Pintar, Las Vegas, for Appellant.

Henness & Haight and Michael D. Haight and Jay A. Kenyon, Las Vegas, for Respondents.

Before HARDESTY, DOUGLAS and PICKERING, JJ.

OPINION

By the Court, PICKERING, J.:

Appellant AA Primo Builders, LLC appeals the dismissal of its suit to recover money allegedly due from respondents Bertral and Cheri Washington on a 2005 patio remodel job. The dismissal came in 2009, more than three years into the litigation. It was based on the Secretary of State having revoked AA Primo's charter to do business as a Nevada limited liability company, effective December 1, 2008. AA Primo asked thedistrict court for a stay to give it time to make the annual filings needed to reinstate its charter, but the district court refused, instead granting the Washingtons' summary judgment motion. AA Primo next filed a timely motion under NRCP 59 asking the district court to vacate the judgment of dismissal, because by then it had succeeded in reinstating its charter. Again, the district court refused relief, and it also awarded the Washingtons their fees and costs. This appeal followed.

We reverse. Dismissal was too harsh a penalty for AA Primo's default in annual fees and filings due the Secretary of State. Administrative revocation of a domestic limited liability company's charter suspends the entity's right to transact business, not its ability to prosecute an ongoing suit. See NRS 86.274(5); NRS 86.505. Under NRS 86.276(5), moreover, reinstatement retroactively restores the entity's right to transact business; it is "as if such right had at all times remained in full force and effect." Thus, AA Primo's suit should not have been dismissed and, having been dismissed, should have been reinstated once AA Primo's charter was. Finally, before dismissal, the district court should have given AA Primo the brief stay it requested to seek charter reinstatement.

I.

Before the merits, we must address the Washingtons' threshold challenge to the timeliness of AA Primo's appeal and, hence, our jurisdiction. AA Primo did not file its notice of appeal until the district court denied its "motion to amend order," asking to vacate the judgment of dismissal and reinstate the suit based on its reinstated charter.¹ If AA Primo's "motion to amend" qualified as "a motion under Rule 59 [ (e) ] to alter or amend the judgment," it tolled the time to file the notice of appeal, and AA's appeal is timely. NRAP 4(a)(4)(C). If AA Primo's motion did not qualify as an NRCP 59(e) tolling motion, the notice of appeal was untimely, and we lack jurisdiction. See NRCP 4(a)(1) ("Except as provided in [ NRAP] 4(a)(4), a notice of appeal must be filed ... no later than 30 days after [service of] written notice of entry of the judgment or order appealed from").

An NRCP 59(e) motion does not have to win on the merits to have tolling effect under NRAP 4(a)(4)(C). The formal requirements are minimal. "A motion to alter or amend the judgment [must] be filed no later than 10 days after service of written notice of entry of the judgment." NRCP 59(e). It must also satisfy NRCP 7(b) and be "in writing, ... state with particularity [its] grounds [and] set forth the relief or order sought." See United Pac. Ins. Co. v. St. Denis, 81 Nev. 103, 106-07, 399 P.2d 135, 137 (1965) (citing NRCP 7(b) and NRCP 59(e)); see Elustra v. Mineo, 595 F.3d 699, 707-08 (7th Cir.2010) (a single-sentence motion meeting Fed.R.Civ.P. 7's requirements and asking to vacate a judgment qualified as tolling under the federal counterparts to NRCP 59 and NRAP 4(a)(4)(C)). But beyond this, NRCP 59(e) does not impose limits on its scope.

NRCP 59(e) and NRAP 4(a)(4)(C) echo Fed.R.Civ.P. 59(e) andFed. R.App. P. 4(a)(4)(A)(iv), and we may consult federal law in interpreting them. See Coury v. Robison, 115 Nev. 84, 91 n. 4, 976 P.2d 518, 522 n. 4 (1999). Because its terms are so general, Federal Rule 59(e) "has been interpreted as permitting a motion to vacate a judgment rather than merely amend it," 11 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2810.1, at 119 (2d ed.1995), and as "cover[ing] a broad range of motions, [with] the only real limitation on the type of motion permitted [being] that it must request a substantive alteration of the judgment, not merely correction of a clerical error, or relief of a type wholly collateral to the judgment." Id. at 121, 976 P.2d 518 (citing Osterneck v. Ernst & Whinney, 489 U.S. 169, 109 S.Ct. 987, 103 L.Ed.2d 146 (1989); Buchanan v. Stanships, Inc., 485 U.S. 265, 108 S.Ct. 1130, 99 L.Ed.2d 289 (1988)). Among the "basic grounds" for a Rule 59(e) motion are "correct[ing] manifest errors of law or fact," "newly discovered or previously unavailable evidence," the need "to prevent manifest injustice," or a "change in controlling law." Id. at 124-27, 976 P.2d 518.

By these standards, AA Primo's post-judgment "motion to amend order" qualifies as an NRCP 59(e) motion to alter or amend judgment with tolling effect under NRAP 4(a)(4)(C). The motion was in writing, invoked NRCP 59, asked to vacate the judgment of dismissal, and appended proof that the charter, for want of which AA Primo's suit was lost, had been restored. It urged the district court to consider NRS 86.276(5), which provides that reinstatement of an administratively revoked charter "relates back to the date on which the company forfeited its right to transact business ... as if such right had at all times remained in full force and effect." And it argued that NRS 86.276(5) and AA Primo's reinstated charter provided a "compelling legal basis ... to amend" the judgment and avoid "manifest injustice."

It is hard to imagine a post-judgment motion that would qualify for tolling under NRCP 59(e) and NRAP 4(a)(4)(C) if AA Primo's did not. Nonetheless, the Washingtons dispute whether, as "a thinly-veiled motion for reconsideration," the motion tolled for AA Primo. As support, they quote the last sentence of local EDCR 2.24(b), which provides, "A motion for reconsideration does not toll the 30-day period for filing a notice of appeal from a final order or judgment." But the Washingtons' own authority defeats them. They ignore the first sentence of EDCR 2.24(b), which restricts the "motion[s] for reconsideration" the rule covers to motions "seeking reconsideration of a ruling of the court, other than any order which may be addressed by motion pursuant to NRCP 50(b), 52(b), 59 or 60." (Emphasis added.) Thus, by its terms, EDCR 2.24(b) excludes motions for reconsideration under NRCP 59(e) and has no effect on NRAP 4(a)(4)(C). Indeed, as a local district court rule it could not be otherwise, since NRCP 83 prohibits local rules that are inconsistent with the NRCP, while NRCP 81(a) provides that the NRAP govern "[a]ppeals from a district court to the Supreme Court of Nevada."

The Washingtons' argument does find a foothold, however, in the Nevada cases opining that a motion for reconsideration, even though timely seeking substantive alteration of a judgment, may not qualify as an NRCP 59(e) tolling motion. Compare Able Electric, Inc. v. Kaufman, 104 Nev. 29, 31-32, 752 P.2d 218, 220 (1988) ("We are not persuaded by [respondent's] attempt to convert [appellant's] motion to alter or amend into a non-tolling motion for rehearing"; oddly basing this determination on the fact that "[t]he district court did not consider any new evidence in arriving at its decision to deny [appellant's] motion to alter or amend"), with Alvis v. State, Gaming Control Bd., 99 Nev. 184, 186 n. 1, 660 P.2d 980, 981 n. 1 (1983) ("A review of the [post-judgment] motion ... reveals that [appellant] merely sought reconsideration of the district court's earlier order dismissing the petition for judicial review. It cannot reasonably be construed as a motion to alter or amend the judgment pursuant to NRCP 59(e)."); see Nardozzi v. Clark Co. School Dist., 108 Nev. 7, 8 n. 1, 823 P.2d 285, 286 n. 1 (1992) (citing Alvis, 99 Nev. at 186 n. 1, 660 P.2d at 981 n. 1, and enlarging its holding to this: "A motion for rehearing cannot reasonably be construed as a motion to alter or amend the judgment pursuant to Rule 59(e)."). But these cases do not explainthe features that distinguish a motion to alter or amend from one to reconsider a judgment, much less the rationale for the distinction. And tracing the cases back to their source, Whitehead v. Norman Kaye Real Estate, 80 Nev. 383, 395 P.2d 329 (1964), cited in Alvis, 99 Nev. at 186 n. 1, 660 P.2d at 981 n. 1, only adds to the mystery, because in Whitehead, NRCP 59(e) was neither argued nor addressed; both Whitehead and its follow-along case, Arrate v. Nevada National Bank, 89 Nev. 55, 56, 506 P.2d 86, 86 (1973), concerned the predecessor to local EDCR 2.24(b), discussed above, and its relationship to then-NRCP 73(a), a predecessor to NRAP 4. See Whitehead, 80 Nev. at 384-85, 395 P.2d at 329-30; Arrate, 89 Nev. at 56, 506 P.2d at 86 (citing Whitehead ).

To some extent, the distinction may have been result-driven, spurred by the desire to save an appellant who filed the notice of appeal too early or too late for jurisdiction to attach under the unforgiving appellate rules formerly in place. Until we adopted what is now NRAP 4(a)(6),² a party who filed a notice of appeal before decision of a tolling motion needed to file a second notice of appeal once the motion was decided; if this wasn't done, the notice of appeal was untimely unless the post-judgment motion was deemed nontolling. See Nardozzi, 108 Nev. at 8 n. 1, 823 P.2d at 286 n. 1. On the other hand, a party who waits to file the notice of appeal until a...