Hansen v. Universal Health Services of Nevada, Inc.

• Decision Date: 22 October 1996
• Docket Number: No. 25848,25848
• Citation: 924 P.2d 1345,112 Nev. 1245
• Parties: Richard HANSEN, Appellant, v. UNIVERSAL HEALTH SERVICES OF NEVADA, INC., dba Valley Hospital Medical Center; John Thalgott, M.D., and John Thalgott, M.D., Inc., Respondents.
• Court: Nevada Supreme Court

Page 1345

924 P.2d 1345

112 Nev. 1245

Richard HANSEN, Appellant, v. UNIVERSAL HEALTH SERVICES OF NEVADA, INC., dba Valley Hospital Medical Center; John Thalgott, M.D., and John Thalgott, M.D., Inc., Respondents.

No. 25848.

Supreme Court of Nevada.

Oct. 22, 1996.

Robert D. Walker and Gerald F. Neal, Las Vegas, for Appellant.

Pearson & Patton, Las Vegas, for Respondent Universal Health Services of Nevada, Inc.

Galatz, Earl & Bulla, Las Vegas, for Respondents John Thalgott, M.D., and John Thalgott, M.D., Inc.

OPINION

PER CURIAM:

Respondents have moved to dismiss this appeal and for the imposition of appropriate sanctions based on grounds of multiple procedural derelictions and dilatory pursuit of the appeal.

Appellant sued respondents for more than $2,000,000 in special damages arising from respondents' actions in implanting an "experimental" device in appellant's spine, which appellant contends caused him permanent disability. After the trial of this matter was completed, the district court entered judgment in favor of respondents on October 28, 1993. Thereafter, appellant filed a motion for a new trial in the district court. The district court denied the motion. This is an appeal from the October 28, 1993, judgment. Specifically, appellant claims that the district court made numerous errors with regard to evidentiary rulings, jury instructions, and proceedings involving the jury.

Appellant was served with the notice of entry of the order denying the motion for a new trial on January 27, 1994, and filed a notice of appeal and designation of the record on appeal in the district court on February 2, 1994. To date, however, the record on appeal has never been transmitted.

On July 18 and 27, 1994, respondents moved to dismiss this appeal based on appellant's failure to cause timely transmission of the record on appeal. Appellant opposed the motions and requested an extension of time to transmit the record. By order entered January 19, 1995, we denied respondents' motions and granted appellant an extension of thirty days from the date of the order within which to cause transmission of the record on appeal. We imposed a $500 sanction, however, against appellant's counsel, attorney Robert D. Walker, for failure to comply with our procedural rules.

On February 15, 1995, appellant moved for a second extension of time to transmit the record. By order entered June 14, 1995, we granted appellant another thirty-day extension to cause transmission of the record. Due to the inordinate delay in the processing of this appeal, however, we cautioned attorney Walker that additional sanctions might be imposed for continued dilatory conduct.

Noting that appellant failed to transmit the record by the extended due date, respondents filed this second motion to dismiss appeal on August 4, 1995. Appellant opposes the motion, asserting that the delay was caused by counsel's "calendaring error and engagement in other trials." Additionally, appellant requests yet another extension of time to transmit the record based on the unavailability of the trial transcript. This request is opposed.

We note that appellant's counsel paid the transcript preparation fees in February 1995, but thereafter failed to contact the court reporter for a status update until he was served with the second motion to dismiss in August 1995. We further note that the principal reason proffered by appellant's counsel for the delay, i.e., a "calendaring error and engagement in other trials," is identical to the reason for delay given the previous year in the August 4, 1994, opposition to the first motion to dismiss appeal. Indeed, the two-page "Points and Authorities" accompanying the August 10, 1995, opposition is merely a replication of certain portions of the August 4, 1994, opposition.

We stated in our order of January 19, 1995, that we were "gravely concerned by counsel's failure to comply with our appellate rules." Further, while we granted relief at that time, we imposed sanctions against counsel and cautioned counsel that additional extensions would be granted only upon a showing of extreme and unforeseeable circumstances. We conclude that counsel's calendaring error, preoccupation with other trials and failure to contact the court reporter do not constitute extreme or unforeseeable...