Forman v. Eagle Thrifty Drugs & Markets, Inc.

• Decision Date: 27 November 1973
• Docket Number: No. 7045,7045
• Parties: William FORMAN et al., Appellants and Cross-Respondents, v. EAGLE THRIFTY DRUGS AND MARKETS, INC., Respondent and Cross-Appellant.
• Court: Nevada Supreme Court

Page 1234

516 P.2d 1234

89 Nev. 533

William FORMAN et al., Appellants and Cross-Respondents, v. EAGLE THRIFTY DRUGS AND MARKETS, INC., Respondent and Cross-Appellant.

No. 7045.

Supreme Court of Nevada.

Nov. 27, 1973.

Rehearing Denied Jan. 15, 1974.

Stewart, Horton & McKissick, Reno, for appellants and cross-respondents.

Robinson & Cassas, Reno, for respondent and cross-appellant.

OPINION

ZENOFF, Justice:

This case is before us after protracted litigation in the lower court. The relevant facts are largely of a procedural nature.

Respondent Eagle Thrifty Drugs and Markets, Inc., owns a three and one-half acre parcel situated at the intersection of Mayberry Drive and Hunter Lake Drive in Reno, Nevada. In 1967 Eagle Thrifty sought a change in land use for the entire parcel to C--1b, which is neighborhood shopping center commercial. The land use change was denied by the city planning commission but later granted by the Reno City Council following appeal to that body. The action by the city council was by way of Ordinance Number 1880. Thereafter a class action was filed against Eagle Thrifty and the City of Reno alleging various causes of action which germinated from the adoption of this ordinance.

On August 28, 1970 the trial court granted the appellants' motion for summary judgment as to its first cause of action seeking to restrain construction of a supermarket on the rezoned parcel. The trial court found that the city council acted improperly by enacting the ordinance in question. Said summary judgment was entered on October 13, 1970 pursuant to NRCP 54(b). No appeal was taken.

Before judgment was entered the residents of the City of Reno approved Ordinance Number 1880 in a 'referendum' election and adopted by way of 'initiative' an amendment to the Reno zoning law providing that no industrial or commercial use be allowed within 300 feet of property used for elementary or junior high school purposes. The Eagle Thrifty property rezoned by Ordinance Number 1880 lies within 300 feet of a grammar school.

Following the election, on motion of the respondent, the trial court reopened the case to receive additional testimony and 'vacated' and set aside the October 13 summary judgment in favor of the appellants. After hearing additional testimony the trial court granted the respondent's motion for summary judgment on appellants' first cause of action, all other causes of action having been dismissed. Partial summary judgment was entered on July 29, 1971 and appellants were given leave to file an amended complaint attacking the referendum ordinance. Appellants filed a supplemental complaint and the matter proceeded to trial. Final judgment was entered in favor of the respondents on July 12, 1972.

1. Before we address the merits of the appellants' contentions we must dispose of an alleged procedural defect in the notice of appeal.

Appellants have appealed from a final judgment of the trial court entered July 12, 1972. In support of their appeal, however, appellants attack only the judgment of the district court entered on July 29, 1971 granting partial summary judgment to the respondent. There was no appealable determination of this order pursuant to Rule 54(b).

Former Nevada Rule of Civil Procedure, Rule 73(b) (now Rule 3(c) of the Nevada Rules of Appellate Procedure), required that 'the notice of appeal shall . . . designate the judgment or part thereof appealed from . . ..' The notice filed by the appellants fails to specify that appeal is taken from the July 29 judgment. However, for purposes of taking an appeal pursuant to NRCP 72(a) (now NRAP 3A(b)(1)), this judgment did not become a final judgment until July 12, 1972.

The filing of a simple notice of appeal was intended to take the place of more complicated procedures to obtain review and the notice should not be used as a technical trap for the unwary draftsman. Jones v. Chaney & James Construction Co., 399 F.2d 84 (5th Cir. 1968). A defective notice of appeal should not warrant dismissal for want of jurisdiction where the intention to appeal from a specific judgment may be reasonably inferred from the text of the notice and where the defect has not materially misled the appellee. Firchau v. Diamond Nat. Corp., 345 F.2d 269 (9th Cir. 1965); Donovan v. Esso Shipping Co., 259 F.2d 65 (3rd Cir. 1958), cert. denied 359 U.S. 907, 79 S.Ct. 583, 3 L.Ed.2d 572 (1958).

On August 3, 1972, within the thirty days allowed for filing notice of appeal, appellants filed with the court and served on the respondent a Statement of Points on Appeal which clearly revealed their intention to appeal from the July 29 judgment. There has been no showing that the respondent was materially misled by the notice.

In light of the foregoing discussion and the importance of the issues raised we decline to dismiss the appeal on this procedural technicality.

For reasons which will become apparent we need not discuss the propriety or the contentions of the cross-appeal.

2. Appellants contend that the lower court order entered July 6, 1971 granting summary judgment to the respondent was error for the following reasons: (a) that the City Ordinance Number 1880 referred to the voters by referendum was void and that its approval was a nullity, and (b) that in any event the initiative petition as adopted is inconsistent with the referendum measure and that the initiative petition must prevail since it passed by the larger number of votes. We hold that neither the referred measure nor the initiative proposal were proper subjects to be presented to the voters pursuant to the initiative and referendum provisions of the Nevada Constitution.

Initiative is that power reserved to the people to propose new laws; referendum, on the other hand, gives them the power to veto those laws passed by their representatives. The initiative and referendum powers granted to the citizens of this state are extremely broad, ¹ and are further reserved to the registered voters of each county and each municipality as to all local, special and municipal legislation of every kind. Nev.Const. Art. 19, Sec. 4.

3. It is apparent, however, that this plebiscite applies only to 'legislation' and that administrative acts are excepted from initiative and referendum.

In the city of Reno zoning changes are effected by city ordinance enacted by the Reno City Council. A municipal ordinance may be either legislative or administrative. Kleiber v. City of San Francisco, 18 Cal.2d 718, 117 P.2d 657 (1941). The decision in Denman v. Quin, 116 S.W.2d 783, 786 (Tex.Civ.App.1938), offers an oft-used test for drawing the distinction: 'An ordinance originating or enacting a permanent law or laying down a rule of conduct or course of policy for the guidance of the citizens or their officers and agents is purely legislative in character, and referable, but an ordinance which simply puts into execution previously-declared polices, or previously-enacted laws, is administrative or executive in character, and not referable.' This legislative-administrative dichotomy is often vague, but it is this very vagueness which has given the courts considerable leeway in balancing two competing interests: that of protecting government from unwarranted harassment and the equal interest in protecting benefits to be won through direct legislation. See Generally Comment, Stan.L.Rev. 497 (1951).

We think that whether or not the citizens of a state wish to embark upon a policy of zoning for the purpose of regulating and restricting the construction and use of buildings within fixed areas is a legislative matter subject to referendum. But when, as in the present case, such policy has been determined and the changing of such...