Ross v. Giacomo

• Citation: 635 P.2d 298,97 Nev. 550
• Decision Date: 29 October 1981
• Docket Number: No. 12142,12142
• Parties: Toni ROSS, Appellant, v. Carl A. GIACOMO, Administrator of the Estate of Anthony L. Giacomo, Deceased, Respondent.
• Court: Supreme Court of Nevada

Page 298

635 P.2d 298

97 Nev. 550

Toni ROSS, Appellant, v. Carl A. GIACOMO, Administrator of the Estate of Anthony L.

Giacomo, Deceased, Respondent.

No. 12142.

Supreme Court of Nevada.

Oct. 29, 1981.

R. Paul Sorenson and Patrick R. Doyle, Las Vegas, for appellant.

Fahrenkopf, Mortimer, Sourwine, Mousel & Sloane, Reno, for respondent.

OPINION

MOWBRAY, Justice:

Carl A. Giacomo, Administrator of the Estate of Anthony L. Giacomo, Deceased, brought this action against the appellant Toni Ross to recover monies which Anthony Giacomo had advanced to Ross as a down payment for the purchase by Ross of a house of prostitution in Fallon, Nevada. The case was tried to a jury that found in favor of the Administrator and against Ross who has appealed. We affirm.

THE FACTS

On July 27, 1977, Anthony Giacomo delivered $66,000 in cash to appellant Toni Ross. Giacomo was in poor health at the time; he died sixteen days later.

It is undisputed that Giacomo's money was to be used by appellant as a down payment in the purchase of the Lazy B. Ranch, a house of prostitution in Fallon, Nevada. A small portion of the money was spent for a business license investigation, attorney's fees, and escrow costs. The purchase never occurred, however, and after this action was commenced, the balance of the money was deposited with the court clerk.

Both appellant and respondent, the administrator of Giacomo's estate, claimed the money on deposit. Appellant alleged that Giacomo, a longtime friend, had made a gift of the money to her and that she had no obligation to return it. Respondent claimed that the money was a loan which appellant was obligated to repay. Alternatively, respondent Following a jury verdict in favor of Giacomo's estate, a judgment was entered on March 22, 1979. Notice of entry of judgment was mailed to appellant's attorney the same day. Four days later, on March 26, 1979, respondent mailed a second notice of entry of judgment, together with notice of filing of a memorandum of costs. On April 9, 1979, appellant filed a motion for judgment n. o. v. or, in the alternative, for a new trial. On May 1, 1979, the trial judge denied the motion as both untimely and lacking merit. This appeal from that order was commenced on May 24, 1979.

alleged that Giacomo had been unduly influenced by appellant and, that in any event, at the time of the transaction Giacomo lacked mental capacity to make such a gift.

Before addressing the merits, we first must resolve procedural issues regarding the timeliness of this appeal and the content of the notice of appeal.

THE TIMELINESS OF THE APPEAL

An appeal must be filed within 30 days after service of written notice of entry of the judgment or order appealed from. NRAP 4(a). This requirement is jurisdictional; an untimely appeal may not be considered. Culinary Workers v. Haugen, 76 Nev. 424, 357 P.2d 113 (1960); Rogers v. Thatcher, 70 Nev. 98, 255 P.2d 731 (1953). The 30-day period is extended by a timely filing of a motion for new trial or for judgment n. o. v. NRAP 4(a). In order to be timely, these motions must be filed within 10 days after service of written notice of entry of the judgment. NRCP 50(b). ¹ Untimely motions for new trial or judgment n. o. v. must be denied. Hunter v. Sutton, 45 Nev. 427, 195 P. 342 (1922); Yates v. Behrend, 280 F.2d 64 (D.C.Cir.1960); cf. Oelsner v. Charles C. Meek Lumber Co., 92 Nev. 576, 555 P.2d 217 (1976). Likewise, untimely motions for new trial or for judgment n. o. v. do not toll the 30-day period in which a notice of appeal must be filed. NRAP 4(a).

In this case, respondent sent two separate notices of entry of judgment. Appellant claims she never received the first notice. She relied on the second notice, and her alternative motion for judgment n. o. v. or for new trial is timely if dated from the second notice. ² Respondent argues that the motion for judgment n. o. v. or for new trial had to be filed within 10 days of the first notice and that, therefore, this appeal must be dismissed as untimely. ³

Under our rules, the respondent starts the appeal time running by serving notice of entry of judgment on the potential appellant. Here, by sending two separate notices on different dates, respondent created a confusing situation. While there is no indication that respondent intended to deceive appellant, we do not believe it would be in accord with principles of due process of law to allow respondent to benefit by the confusion he created, albeit inadvertently. Cf. Kotecki v. Augusztiny, 87 Nev. 393, 487 P.2d 925 (1971). By sending the second notice, we believe respondent was, in effect, admitting that something was wrong with the first notice and that it was, in fact, no notice at all. We, therefore, hold that the second notice vitiated the first notice, thus rendering it nugatory. See Storey v. Castner, 306 A.2d 732 (Del.1973). ⁴ We conclude We emphasize that there is no evidence in the record of collusion by the parties to extend the time within which an appeal may be filed. On the contrary, respondent now strenuously contends that this appeal must be dismissed as untimely. Accordingly, our holding in this case in no way affects our continuing adherence to the rule announced in Culinary Workers v. Haugen, supra, that the parties may not stipulate to extend the time within which an appeal may be filed.

that the motion for judgment n. o. v. or for a new trial was timely, and we decline to dismiss this appeal.

THE NOTICE OF APPEAL

We next must determine whether this appeal can be treated as an appeal from the final judgment. The notice of appeal designates the order denying the motion for judgment n. o. v. or for new trial as the order appealed from. No mention is made of the final judgment. This, appellant asserts, is due to a typographical error.

The notice of appeal must designate the judgment, order or part thereof appealed from. NRAP 3(c). We have refused, however, to allow this notice requirement to be a "technical trap for the unwary draftsman." Forman v. Eagle Thrifty Drugs & Markets, 89 Nev. 533, 536, 516 P.2d 1234, 1236 (1973); see Grouse Cr. Ranches v. Budget Financial Corp., 87 Nev. 419, 488 P.2d 917 (1971). In Casino Operations, Inc. v. Graham, 86 Nev. 764, 476 P.2d 953 (1970), this court, relying on federal practice, held that an appeal from an order denying a motion for new trial is an appeal from the final judgment, if the same can be inferred from the notice of appeal, the designation of the record, and the posting of a supersedeas bond. Here, the entire record was designated. Although no supersedeas bond was filed, none was necessary, since the money in question was already in the possession of the court clerk.

Respondent contends that the portion of the district court order which denies judgment n. o. v. is not appealable. While an appeal normally does not lie from denial of a motion for judgment n. o. v., Associates Finance Corp. v. Scott, 3 Ariz.App. 1, 411 P.2d 174 (1966); State ex rel. Nilsen v. Shalimar, 28 Or.App. 61, 558 P.2d 1251 (1977), an appeal from the denial of an alternative motion for judgment n. o. v. or for a new trial may be viewed as an appeal from the final judgment. Gray v. General Motors Corp., 434 F.2d 110 (8th Cir. 1970). We conclude that appellant intended to appeal from the final judgment. We now turn to the merits.

THE SPECIAL VERDICT

Appellant contends that the district court committed reversible error by refusing to submit her proposed special verdict form to the jury. Subsequently, the jury rendered a general verdict in favor of respondent.

Whether to require a special verdict is a discretionary determination to be made by the trial court. See United Assn. Journeymen v. Stine, 76 Nev. 189, 220, 351 P.2d 965, 981 (1960). NRCP 49(a), which was taken verbatim from Fed.R.Civ.P. 49(a), provides in part: "The court may require a jury to return only a special verdict in the form of a special written finding upon each issue of fact." (Emphasis added.) In applying this rule, the federal courts have accorded the trial judge broad discretion in determining whether to require a special verdict. See, e. g., Kornicki v. Calmar Steamship Corporation, 460 F.2d 1134 (3d Cir. 1972); Judith Ann Liberian Transport Corp. v. Crawford, 399 F.2d 924

(9th Cir. 1968); 9 Wright and Miller, Federal Practice and Procedure § 2505, at 492-493 (1971). We have examined the special verdict form [97 Nev. 556] offered by appellant and find no abuse of discretion on the part of the district court in refusing to submit it to the jury.

THE INSTRUCTIONS

Appellant next contends that the district court gave an erroneous instruction regarding undue influence, one of respondent's theories at trial. Appellant argues that since a general verdict was rendered, it is impossible to determine what effect this alleged erroneous instruction had on the jury. Indeed, we have previously stated that where a general verdict is not accompanied by special interrogatories, substantial error in the charge of the trial court as to any of the alternative theories of liability or defense requires remand for another trial. Wood v. Southern Pacific Co., 88 Nev. 527, 501 P.2d 652 (1972); Otterbeck v. Lamb, 85 Nev. 456, 456 P.2d 855 (1969); Lightenburger v. Gordon, 81 Nev. 553, 579, 407 P.2d 728, 743 (1965) (Thompson, J., concurring).

In the present case, however, we are not convinced that the jury instruction in question was erroneous. The trial court instructed the jury as follows:

An alleged gift will be presumed secured by undue influence where the alleged donor is lacking in such mental vigor as to enable him to protect himself against imposition even though his mental weakness is not such as to justify his being regarded as totally incapacitated.

This instruction is supported by case law. See McDonald v. Hewlett, 102 Cal.App.2d 680, 228 P.2d 83 (1951); Gordon v. Bialystoker Center & Bikur Cholim, 59 A.D.2d 522, 396 N.Y.S.2d 896 (1977); see...