Reno Hilton Resort Corp. v. Verderber, No. 41645.

• Docket Nº: No. 41645.
• Citation: 106 P.3d 134, 121 Nev. 1
• Case Date: February 24, 2005
• Court: Supreme Court of Nevada

106 P.3d 134
121 Nev. 1

RENO HILTON RESORT CORPORATION, D/B/A Reno Hilton, A Nevada Corporation; Park Place Entertainment Corporation, A Delaware Corporation; and FHR Corporation, A Nevada Corporation, Appellants,
v.
Diane VERDERBER, on Behalf of Herself and All Others Similarly Situated, Respondent

No. 41645.

Supreme Court of Nevada.

February 24, 2005.

Lionel Sawyer & Collins and Dan C. Bowen, David N. Frederick and Samuel S. Lionel, Las Vegas, for Appellants.

Arrascada & Arrascada, Ltd., and John L. Arrascada, Reno; Lyle & Murphy and Robert E. Lyle, Reno; Walkup Molodia Kelly & Echeverria and John P. Echeverria, San Francisco, California, for Respondent.

Before ROSE, GIBBONS and HARDESTY, JJ.

106 P.3d 135

OPINION

PER CURIAM.

This is an appeal from a district court order denying a new trial as to Phase I of a bifurcated class action. Respondent has moved to dismiss the appeal for lack of jurisdiction, contending that an order denying a new trial is not appealable when, as in this case, it is interlocutory and does not follow the final judgment. Appellants oppose the motion and argue that the language in the rule permitting an appeal from an order granting or denying a new trial is unqualified, and so jurisdiction is proper. We conclude that the rule permits an independent appeal only from a post-judgment order granting or denying a new trial, and so we dismiss this appeal.

FACTS

The underlying class action arose from an outbreak of a Norwalk-like virus at the Reno Hilton in May and June of 1996. The district court divided the action into two phases. The first phase consisted of a jury trial on the issues of liability and class-wide punitive damages. The jury found that appellants' policy of unpaid sick leave for its employees proximately caused the outbreak. The jury further imposed over $25 million in punitive damages. Phase II, which has not yet taken place, will consist of individual hearings for each class member to assess compensatory damages.

Following the Phase I trial's conclusion, appellants moved for judgment notwithstanding the verdict, or alternatively, a new trial. The district court denied the motion, and appellants filed a notice of appeal from the order denying a new trial. Respondent then moved to dismiss the appeal for lack of jurisdiction.

DISCUSSION

To resolve the motion to dismiss, we must determine whether NRAP 3A(b)(2), which provides that an appeal may be taken from a district court order "granting or refusing a new trial," permits this appeal. Respondent argues that the rule applies only to post-judgment orders denying a new trial, not to an interlocutory order entered in the midst of bifurcated proceedings. Appellants assert that the plain language of the rule permits this appeal.

Respondent argues that our previous decisions favor looking beyond the label of an order or motion, and instead, focusing on what the order or motion actually does or seeks.¹ Respondent further emphasizes language in our previous opinions that disfavors piecemeal review.² According to respondent, interpreting NRAP 3A(b)(2) in light of these policies means that an interlocutory order denying a new partial trial is not independently appealable.

In support of her position, respondent cites an Oklahoma case, LCR, Inc. v. Linwood Properties.³ In LCR, the trial court had granted summary judgment as to some, but not all, issues in the case.⁴ The trial court at first denied, but then on reconsideration granted, the respondent's motion for a new trial, and the appellant appealed.⁵ The Supreme Court of Oklahoma dismissed the appeal for lack of jurisdiction.⁶

The court recognized that the summary judgment was not a final judgment because it resolved only some of the issues in the case, and accordingly the summary judgment was simply an intermediate order, not a true judgment.⁷ "No judgment may arise from a ruling that disposes of but a portion of an entire claim and leaves unresolved other issues joined by the pleadings."⁸ The court then reasoned that a new trial motion addressed

106 P.3d 136

to an intermediate order could not result in an appealable order.⁹

Appellants argue that LCR should be distinguished. They assert that the motion in that case was not really for a "new trial" since no trial at all had occurred; rather, the motion was actually a motion for reconsideration of the summary judgment. In appellants' view, LCR is not persuasive here because Phase I was in fact a jury trial lasting over two weeks.

Appellants correctly point out the factual differences between this case and the situation presented in LCR. But as discussed above, the Oklahoma Supreme Court's reasoning was not based on the fact that there had been no actual trial. Instead, the court concluded that no appeal could be taken from an order resolving a new trial motion addressed to an intermediate order. ¹⁰ The court recently reaffirmed its holding in Chandler U.S.A., Inc. v. Tyree.¹¹

Also, other courts have reached the same conclusion on facts more similar to this case. For...