Westside Charter Service, Inc. v. Gray Line Tours of Southern Nevada

• Decision Date: 09 June 1983
• Docket Number: No. 13722,13722
• Citation: 664 P.2d 351,99 Nev. 456
• Parties: WESTSIDE CHARTER SERVICE, INC., a Nevada Corporation, and Public Service Commission of Nevada, Appellants, v. GRAY LINE TOURS OF SOUTHERN NEVADA, a Nevada Corporation, Respondent.
• Court: Nevada Supreme Court

Page 351

664 P.2d 351

99 Nev. 456

WESTSIDE CHARTER SERVICE, INC., a Nevada Corporation, and Public Service Commission of Nevada, Appellants, v. GRAY LINE TOURS OF SOUTHERN NEVADA, a Nevada Corporation, Respondent.

No. 13722.

Supreme Court of Nevada.

June 9, 1983.

Darrell Lincoln Clark, Las Vegas, for Westside Charter service.

Zev Kaplan, Carson City, for Public Service Com'n of Nev.

Beckley, Singleton, DeLanoy & Jemison, Las Vegas, Crowell, Crowell & Crowell, Carson City, for respondent.

OPINION

PER CURIAM:

Appellants Westside Charter Service, Inc. (Westside), a corporate motor carrier, and Public Service Commission of Nevada (PSC) seek relief on appeal from adverse judgments entered in favor of the respondent Gray Line Tours of Southern Nevada (Gray Line). We find no basis for disagreement with the district court and accordingly affirm its rulings.

In April, 1979, Westside applied to PSC for a certificate of public convenience and necessity for on-call transportation of passengers and sight-seeing services in Clark County. Gray Line was permitted to intervene in Westside's application. After a hearing, PSC agreed to issue the certificate to Westside.

Thereafter, Gray Line filed a complaint in district court, requesting that the PSC grant of authority be vacated. At the district court trial on the matter, only counsel for Gray Line and PSC appeared. Counsel for PSC and Gray Line then entered into a stipulation which formed the basis for the district court's judgment. In its findings of fact and conclusions of law accompanying judgment, the court concluded that the evidence introduced before the PSC did not support the broad grant of authority to Westside. The district court therefore vacated that portion of the Westside tariff permitting the transfer of passengers and their baggage between McCarran Airport and the hotels and motels in Las Vegas. The court then delimited Westside's authority to the providing of nightclub tours of the northwest and westside of Las Vegas and tours of Mount Charleston, which could only be conducted from midnight until 2:00 a.m.

Westside ultimately moved for relief from judgment under NRCP 60(b) on the basis of surprise. Westside supported its motion by the contention that it had been in the process of changing counsel immediately prior to trial, and neither it nor its counsel had notice of the trial until the day it was held. In denying Westside's motion, the district court found that because the record contained a Notice to Set for Trial, with a properly executed certificate of mailing and an affidavit of Westside's counsel which admitted that trial statements from the other parties had been received 17 days before the trial date, Westside had sufficient notice of the trial. Judgment was stayed pending appeal. Since Westside's appeal was timely only as to the dismissal of its motion for relief from judgment, and not the underlying judgment itself, we consider only the propriety of the denial of the motion. Smilanich v. Bonanza Air Lines, 72 Nev. 10, 291 P.2d 1053 (1956); Smilanich v. Bonanza Air Lines, 72 Nev. 212, 298 P.2d 819 (1956).

Some time after the district court's order denying 60(b) relief had been entered, Westside again submitted a tariff application to PSC. PSC issued an order granting certain tariffs, including authority to operate downtown city tours, modified city tours, main nightclub tours, late nightclub tours, Hoover Dam-Lake Mead tours, and to transport passengers and baggage to and from McCarran International Airport and Union Pacific Stations. Gray Line thereafter filed a motion to enforce the earlier judgment, and to obtain sanctions. Gray Line asserted that PSC lacked jurisdiction to issue any further order concerning the case once it had filed its action in district court regarding the initial PSC grant to Westside.

In its order granting Gray Line's motion, the district court held, in part, that Gray Line's original challenge to the PSC action stayed further action by PSC until the matter had finally been resolved on appeal. The court then vacated the tariffs, stating that PSC's actions in granting the tariffs contravened the earlier district court judgment. Both Westside and PSC have appealed from this order. We consider these appeals together with Westside's earlier appeal from the district court's denial of the NRCP 60(b) motion.

Westside's appeal from the denial of its motion for relief from judgment pursuant to NRCP 60(b) is without merit. From the findings filed by the court and our review of the record on appeal, it is apparent that the court had before it sufficient evidence to find that Westside was on notice of the upcoming trial. Under these circumstances, we affirm the trial court's judgment. Jacobson v. Best Brands, Inc., 97 Nev. 390, 632 P.2d 1150 (1981); Clark Co. Sports v. City of Las Vegas, 96 Nev. 167, 606 P.2d 171 (1980); Blanchard v. Nevada State Welfare Dep't, 91 Nev. 749, 542 P.2d 737 (1975).

We further sustain the trial court's decision granting Gray Line's motion to enforce the May 22, 1981 judgment. Because PSC was without jurisdiction to...