Winston Products Co. v. Deboer

• Decision Date: 25 May 2006
• Docket Number: No. 45754.,45754.
• Citation: 134 P.3d 726
• Parties: WINSTON PRODUCTS COMPANY, INC., Appellant, v. Susan DEBOER, Legal Guardian for Calvin Wright, an Adult Ward, Respondent.
• Court: Nevada Supreme Court

134 P.3d 726

WINSTON PRODUCTS COMPANY, INC., Appellant, v. Susan DEBOER, Legal Guardian for Calvin Wright, an Adult Ward, Respondent.

No. 45754.

Supreme Court of Nevada.

May 25, 2006.

Woodburn & Wedge and W. Chris Wicker, Reno, for Appellant.

Bradley Drendel & Jeanney and Joseph S. Bradley, Reno; William R. Kendall, Reno, for Respondent.

Before MAUPIN, GIBBONS and HARDESTY, JJ.

OPINION

HARDESTY, J.

In resolving this motion, we revisit the method used to compute the time for filing motions for judgment as a matter of law and for a new trial and the tolling period to file a notice of appeal when these motions are served by mail or electronic means. The Nevada Rules of Civil Procedure (NRCP) require these so-called tolling motions to be filed within 10 days from the date a judgment is filed and served. However, the 2004 amendments to the NRCP changed the computation of time where the prescribed period is less than 11 days to exclude Saturdays, Sundays and nonjudicial days. Where, as here, the time to file a tolling motion is 10 days, we conclude that the "period of time prescribed" in NRCP 6(a) does not include the 3-day allowance for service by mail under NRCP 6(e). Therefore, the filing period for a tolling motion is computed first under NRCP 6(a), and then 3 additional days are added under NRCP 6(e) when service was made by mail or electronic means. Using this computation method, we conclude that appellant's tolling motions were timely filed in the district court. Accordingly, we deny respondent's motion to dismiss this appeal. Further, although this issue was not addressed by the parties, we conclude that the tolling motions also tolled the time to appeal from the post-judgment order awarding attorney fees and costs.

FACTS

The final judgment after a jury verdict in favor of respondent was filed on April 18, 2005. Respondent served appellant with notice of entry of the district court's final judgment via facsimile and mail on April 21, 2005. Fifteen days later, on May 6, 2005, appellant moved the district court for judgment as a matter of law under NRCP 50(b) or for a new trial pursuant to NRCP 59. Respondent opposed appellant's motions in the district court, arguing, in part, that they were not timely filed.

Before resolving the motions, on June 9, 2005, the district court entered a post-judgment order awarding attorney fees and costs in favor of respondent. Notice of entry of the order was served on appellant on June 10, 2005. On June 27, 2005, the district court entered its order denying appellant's motion for judgment as a matter of law or for a new trial. The district court determined that appellant's motions had been timely filed but concluded that appellant was not entitled to any relief. On July 29, 2005, within 30 days after service of notice of entry of the June 27 order resolving the motions, appellant filed a notice of appeal from that order, the final judgment, and the post-judgment order awarding attorney fees and costs.

Respondent has filed a motion to dismiss the appeal, alleging that appellant's motions for judgment as a matter of law and for a new trial were not timely and therefore did not toll the time to appeal. Appellant opposes the motion.

DISCUSSION

This court lacks jurisdiction to consider an appeal that is filed beyond the time allowed under NRAP 4(a).¹ A timely filed motion for judgment as a matter of law under NRCP 50(b) or for a new trial under NRCP 59 tolls the time for filing an appeal until no later than 30 days after a party serves written notice that the order resolving such motions has been entered.² A tolling motion under NRCP 50(b) or NRCP 59 is timely if it is filed within 10 days after a party serves written notice that a judgment has been entered.³ Three additional days are added to this filing deadline when service was made by mail or electronic means.⁴

In the motion to dismiss, respondent argues that our prior case law requires that the 3-day allowance for mailing be added directly to the 10-day period to file tolling motions before computing the filing deadline under NRCP 6(a). Employing this rationale subjects these tolling motions to a 13-day time period. Under NRCP 6(a), intermediate Saturdays, Sundays and nonjudicial days would be included in the computation of the 13-day period. Applying this approach to this case results in the thirteenth day from service of notice of entry falling on May 4, 2005. In this scenario, because appellant's motions were not filed until May 6, 2005, they would be untimely and would not effectively toll the time to appeal.

Appellant encourages us to adopt the opposite approach to that suggested by respondent. Instead of first adding the 3 days for service by mail to reach a 13-day time period, appellant contends that sound judicial policy favors adding the 3-day allowance only after computing the 10-day filing period and excluding intermediate nonjudicial days under NRCP 6(a). Appellant argues that this method of computing the time period is consistent with federal court interpretation of the analogous federal rule, FRCP 6, and furthers the intent of NRCP 6(e) by allowing for more time when service is made by mail. Using this method in this case, appellant argues that its motions for judgment as a matter of law and for a new trial were timely filed and effectively tolled the time to appeal.

Rule 6 of the Nevada Rules of Civil Procedure governs time:

(a) Computation. In computing any period of time prescribed or allowed by these rules, by the local rules of any district court, by order of court, or by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included. The last day of the period so computed shall be included, unless it is a Saturday, a Sunday, or a nonjudicial day, in which event the period runs until the end of the next day which is not a Saturday, a Sunday, or a nonjudicial day, or, when the act to be done is the filing of a paper in court, a day on which weather or other conditions have made the office of the clerk of the district court inaccessible, in which event the period runs until the end of the next day which is not one of the aforementioned days. When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and nonjudicial days shall be excluded in the computation except for those proceedings filed under Titles 12 or 13 of the Nevada Revised Statutes.

. . . . (e) Additional Time After Service by Mail or Electronic means. Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper, other than process, upon the party and the notice or paper is served upon the party by mail or by electronic means, 3 days shall be added to the prescribed period.

(Emphases added.) This court has previously considered in two cases the issue of computing time periods under NRCP 6 when service was made by mail. In Ross v. Giacomo, this court concluded that in calculating the time to file a tolling motion, the 3-day allowance for service by mail is added directly to the 10-day period—resulting in a 13-day filing period.⁵ More recently, in Custom Cabinet Factory of New York v. District Court, a 2003 case involving the 30-day time period to file a request for trial de novo after arbitration, we affirmed the computation method employed in Ross and held that the 3-day allowance for service by mail "should be added to the time allotted by statute or rule first" and then the time period should be computed under NRCP 6(a).⁶ We reasoned that the alternative method of computing time under Rule 6(a) of adding the 3 days for service by mail after computing the filing deadline "would potentially result in an additional five to seven days to file motions" which was "complicated and absurd."⁷ Instead, we believed at the time that using the method of first adding the 3 days for service by mail to the time allotted by statute or rule and then computing the time period, was a simpler and speedier computation scheme.⁸

However, in 2004, after our decisions in Ross and Custom Cabinet, we amended NRCP 6 to be consistent with the 1985 amendments to the federal rule.⁹ That amendment made the exclusion of intermediate Saturdays, Sundays, and nonjudicial days applicable in computing time periods of less than 11 days.¹⁰ Before the 2004 amendment, NRCP 6(a) only excluded intermediate nonjudicial days in computing periods of less than 7 days. Several federal courts have considered the intent behind FRCP 6(e)'s 3-day mailing allowance in interpreting the 1985 amendment to the computation provision of FRCP 6(a).¹¹ In computing time periods in those cases, the federal decisions have focused on the "period of time prescribed" and determined that it does not include the 3 additional days for mailing under Rule 6(e). Those federal courts have therefore found that the less-than-11-day provision of Rule 6(a) is applicable to 10-day periods even when service is made by mail.

In the first seminal case after the 1985 amendment to FRCP 6, a federal district court in Nalty v. Nalty Tree Farm recognized that the amendment "was intended to extend the response time allowed under various rules prescribing ten day limits."¹² The Nalty court observed, however, that adding additional time for mailing under Rule 6(e) to create a 13-day time period ultimately resulted in the same amount of time that was allowed before the 1985 amendment because at that time, nonjudicial days were not excluded from the computation of 10-day periods.¹³ The court determined that "[s]uch a result cannot be consistent with the obvious intentions of the advisory committee" and declared that "[t]he mailing rule should provide three extra days, in addition to whatever period the party would otherwise have, to reflect the presumed lapse in notice because of service by mail."¹⁴ Th...