Huckabay Props., Inc. v. NC Auto Parts, LLC

• Decision Date: 27 March 2014
• Docket Number: Nos. 61024,61791.,s. 61024
• Citation: 322 P.3d 429,130 Nev. Adv. Op. 23
• Parties: HUCKABAY PROPERTIES, INC., a Nevada Corporation, Appellants, v. NC AUTO PARTS, LLC, a Nevada Limited Liability Company; and Steven B. Crystal, an Individual, Respondents. Huckabay Properties, Inc., a Nevada Corporation, and John Huckabay, Jr., Appellants, v. NC Auto Parts, LLC, a Nevada Limited Liability Company; and Steven B. Crystal, Respondents.
• Court: Nevada Supreme Court

322 P.3d 429
130 Nev. Adv. Op. 23

HUCKABAY PROPERTIES, INC., a Nevada Corporation, Appellants,
v.
NC AUTO PARTS, LLC, a Nevada Limited Liability Company; and Steven B. Crystal, an Individual, Respondents.
Huckabay Properties, Inc., a Nevada Corporation, and John Huckabay, Jr., Appellants,
v.
NC Auto Parts, LLC, a Nevada Limited Liability Company; and Steven B. Crystal, Respondents.

Nos. 61024, 61791.

Supreme Court of Nevada.

March 27, 2014.

[322 P.3d 430]

Hoffman, Test, Guinan & Collier and John A. Collier, Reno; McDonald Carano Wilson LLP and Debbie A. Leonard and Seth T. Floyd, Reno; Sterling Law LLC and Beau Sterling, Las Vegas, for Appellants.

Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno; Wm. Patterson Cashill, Reno, for Respondents.

BEFORE THE COURT EN BANC.

OPINION
By the Court, HARDESTY, J.:

These consolidated appeals were dismissed for failure to timely file the opening brief and appendix. In seeking the en banc court's reconsideration, appellants argue that dismissal of their appeals based on the missteps of their lead appellate attorney is contrary to this court's precedent recognizing public policy favoring dispositions on the merits. Appellants' dissatisfaction with their attorney's performance, however, does not entitle them to the reinstatement of their appeals, and their argument to the contrary is not consistent with general agency principles, under which a civil litigant is bound by the acts or omissions of its voluntarily chosen attorney. Although this court has a sound policy preference for deciding cases on the merits, that policy is not absolute and must be balanced against countervailing policy considerations, including the public's interest in expeditious resolution of appeals, the parties' interests in bringing litigation to a final and stable judgment, prejudice to the opposing side, and judicial administration concerns, such as the

[322 P.3d 431]

court's need to manage its sizeable and growing docket. We therefore disagree with appellants that precedential uniformity provides a basis to reinstate these appeals. As appellants' contentions fail to satisfy NRAP 40A's standards, en banc reconsideration is denied.

FACTS AND PROCEDURAL HISTORY

The appeal in Docket No. 61024 challenged a district court judgment following a bench trial in a real property contract action. The appeal in Docket No. 61791 challenged the same court's post-judgment orders awarding attorney fees and costs. The appeals were consolidated on December 12, 2012, and a briefing schedule was set, under which appellants' opening brief was due by no later than March 12, 2013.

Overdue opening brief

On appellants' motion, the brief's due date was extended to April 11, 2013. On April 12, 2013, appellants filed a motion seeking a second extension until May 13, 2013, to file the brief. Because appellants did not submit the brief by the May 13 requested deadline, appellants' motion for a second extension was denied as moot on May 24, 2013. Despite denying the motion, the May 24 order allowed appellants 11 more days, until June 4, 2013, to file and serve the opening brief and appendix, but the order warned that failure to do so could result in the appeals' dismissal. The brief and appendix were not filed by that deadline. Appellants had two attorneys of record in these appeals: Beau Sterling and John A. Collier. Mr. Sterling apparently was responsible for briefing the appeal and filing documents in this court. Mr. Collier, who was trial counsel, received copies of this court's notices and orders.

Motion to dismiss

On June 10, 2013, respondents filed a motion to dismiss these appeals. ¹ Appellants, through Mr. Sterling, opposed the motion and again asked for more time to file the brief, until June 12, stating that the “short amount of additional time is requested in order to help spread out the deadlines slightly on a number of matters, including this one, that all fell due around the same time, and most of which are similarly urgent.” Mr. Sterling also represented that he had recently filed briefs and prepared for oral argument in other matters and that he had a personal commitment. He stated that his motion for a third extension of time was filed late because he wanted to be sure he could complete the brief by any new deadline requested before making the motion.

Respondents opposed any additional time and argued that because this court denied appellants' second motion for an extension of time as moot in the May 24 order, the 11–day grace period allowed in that order for filing the brief could not “possibly have lead Mr. Sterling to believe the court would grant another extension or that the 11–day time limit in the order could be ignored.” Respondents also stated that Mr. Sterling misrepresented that he attempted to contact respondents to confer on a third extension of time.

On June 14, 2013, appellants electronically filed in this court a “certificate of service” for the opening brief and appendix, indicating that on June 12, 2013, they submitted to this court and served on respondents by United States mail the opening brief and appendix. The brief and appendix, however, were not submitted to this court for filing with the certificate of service. They were subsequently provisionally received in this court by mail on June 17, 2013. Based on the failure to file the brief and appendix by the June 4 deadline and failure to comply with

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court rules and directives, the appeals were dismissed by order of this court on June 25, 2013.

Motion for reconsideration and petition for rehearing

Through newly retained counsel, appellants filed a motion for reconsideration and a petition for rehearing to reinstate their appeals, arguing that they had no knowledge of Mr. Sterling's pattern of disregard for this court's orders, and relying on this court's stated policy favoring merit-based consideration of appeals. They also stated that Mr. Sterling and respondents' counsel failed to notify Mr. Collier about respondents' motion to dismiss, which “prevented Mr. Collier from taking steps to salvage the appeal[s].”

Respondents opposed the motion and rehearing petition, arguing that Mr. Collier was aware of the briefing deadlines and was served with this court's notices and order regarding missed deadlines and warning about possible dismissal for failing to file documents. Respondents argued that this awareness, along with the fact that Mr. Collier never received a draft copy of the opening brief from Mr. Sterling at any time before the briefing deadline expired, should have made it clear to Mr. Collier that the appeals were not being managed properly. In that regard, they pointed out that Mr. Sterling contacted Mr. Collier on June 4, 2013, requesting copies of the transcripts from Mr. Collier, which should have alerted Mr. Collier that Mr. Sterling could not have possibly already prepared the brief because he did not have the necessary transcripts even on the brief's final due date, June 4. Respondents also argued that even though Mr. Collier was not served with a copy of the motion to dismiss, which was filed on June 10, 2013, the opening brief was overdue by that date and this court could have sua sponte dismissed the appeals pursuant to its May 24 order, a copy of which was provided to Mr. Collier.

The motion for reconsideration and petition for rehearing were denied. SeeNRAP 31(b)(3) (requiring a motion for an extension of time to be filed before the filing deadline expires); NRAP 31(d) (explaining consequences for failing to file briefs, including dismissal); Weddell v. Stewart, 127 Nev. ––––, 261 P.3d 1080 (2011) (addressing counsel's repeated failures to follow court rules and directives and declining to reconsider an order dismissing an appeal based on such failures); NRAP 40(c) (setting forth rehearing standards). This petition for en banc reconsideration followed.

DISCUSSION

In seeking to reinstate their appeals, appellants contend that reconsideration is necessary to maintain uniformity in the court's jurisprudence and to preserve public policy favoring a decision on the merits and disfavoring a “deprivation of appeal rights based solely on the missteps of counsel,” ² Appellants further contend that since Mr. Collier was not served with the motion to dismiss or Mr. Sterling's motions for extensions of time, they were deprived of their constitutional right to receive proper service (on Collier).

En banc reconsideration is disfavored, and this court will only order reconsideration when necessary to preserve precedential uniformity or when the case implicates important precedential, public policy, or constitutional issues. NRAP 40A(a). Neither of those standards have been met here.

[322 P.3d 433]

Precedential uniformity does not mandate reinstatement of these appeals

In seeking reconsideration, appellants argue that Hansen v. Universal Health Services of Nevada, Inc., 112 Nev. 1245, 924 P.2d 1345 (1996), demands that these matters be heard on their merits, but we are not persuaded that it does.³

In Hansen, the court noted its concern with appellant's counsel's failure to comply with court rules and orders, but nevertheless declined to grant respondents' motion to dismiss the appeal. Id. at 1247, 924 P.2d at 1346. The appellant in Hansen was a patient who alleged that he was permanently disabled as a result of the respondents' actions in implanting an experimental device in appellant's spine. Id. at 1246, 924 P.2d at 1345–46. In the district court, appellant sought over $2,000,000 in damages, and when he lost at trial and judgment was entered against him, he appealed alleging numerous reversible trial errors. Id. Appellant's attorney, however, failed to have the record transmitted from the district court to this court despite being given several extensions of time to accomplish that rule-mandated task. Id. at 1246–47, 924 P.2d at 1346. Respondents moved to dismiss the appeal, and the court denied the motion, explaining that

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