Nolan v. Wolfson ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
RICKY NOLAN, No. 83616
Appellant,
vs.
STEVEN WOLFSON; MARY K.
HOLTHUS; JAMES R. SWEETIN;
FILE
SARAH OVERLY; CLARK COUNTY JAN 2 8 2022
DISTRICT ATTORNEYS OFFICE;
ELIZABETH A- BROWN
FRANK R. LOGRIPPO; STEFANY CLERliggPREME COURT
BY
MILEY; AND KATLYN BRADY, DERRY114-4-41
CLER .11.
C 1 1-
Res s ondents.
ORDER DISMISSING APPEAL
This is a pro se appeal from an August 11, 2021, district court
order dismissing appellant's complaint, denying a motion to appoint
counsel, and denying a motion for reconsideration. Eighth Judicial District
Court, Clark County; Jessica K. Peterson, Judge.
A notice of appeal in a civil case must generally be filed in the
district court within 33 days of service of notice of entry of the order
challenged on appeal. See NRAP 4(a)(1); NRCP 6(d); NRAP 26(c). Here,
the certificate of service attached to the notice of entry of the August 11,
2021, order states that the notice of entry was served on appellant by mail
on August 19, 2021. Each of appellant's four notices of appeal were
'Appellant also identifies a district court minute order in his notices
of appeal, but such a minute order is not appealable. See State, Div. of Child
and Family Serv's v. Eighth Judicial Dist. Court, 120 Nev. 445, 454, 92 P.3d
1239, 1245 (2004) (```` [Djispositional court orders that are not administrative
in nature, but deal with the procedural posture or merits of the underlying
controversy, must be written, signed, and filed before they become
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untimely filed in the district court more than 33 days later. See NRAP 6(a)
(regarding computation of time).
Apparently recognizing that the notices of appeal were
untimely filed, appellant asserted in his notices of appeal and his docketing
statement that the district court clerk did not timely serve him with notice
of the minute order and seemed to assert that he never received notice of
the written order. Appellant also filed an unopposed motion for clarification
in which he again asserted that the clerk's office did not timely notify him
of the minute order denying his complaint and did not serve him with the
written order.
Service by mail is complete upon mailing. See NRCP 5(b)(2);
NRAP 25(c)(3). However, when an "appellant avers that he did not receive
the notice of entry of judgment, there is a legitimate question of fact as to
whether the notice was ever mailed." Zugel v. Miller, 99 Nev. 100, 101, 659
P.2d 296, 297 (1983). Appellant's assertions regarding his receipt of notice
of the district court's decision appeared to raise a genuine issue of fact as to
whether the notice of entry of the August 11, 2021, order was actually
mailed to appellant on August 19, 2021. Therefore, this court remanded
this matter to the district court to determine whether respondents mailed
the notice of entry of order to appellant on August 19, 2021, as indicated in
the certificate of service. See id. ("This court is not a fact-finding tribunal.");
NRCP 58(e) (providing that notice of entry of order must be served by a
party in cases that do not involve family law).
The district court has now filed a response to this court's order.
The response does not contain express findings of fact but states that notice
of entry of the court's order was mailed to appellant on August 19, 2021,
and recounts the testimony of two witnesses who testified that the notice of
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entry was mailed to appellant on August 19, 2021. This court construes
the response as a determination that the notice of entry was mailed to
appellant on August 19, 2021.
As the notice of entry of the August 11, 2021, order was mailed
to appellant on August 19, 2021, appellant had until September 23, 2021,
to file the notice of appeal in the district court or deliver the notice of appeal
to a prison official for mailing. See NRAP 4(d), 6(a). Appellant's earliest-
filed notice of appeal was not filed in the district court until October 4, 2021,
and was dated September 26, 2021, after the time to file a notice of appeal
expired. This court has steadfastly recognized that the appeal period under
NRAP 4(a)(1) starts from the date notice of entry of order is served; thus,
the date appellant received the notice of entry of order is irrelevant. See,
e.g., Healy v. Volkswagenwerk Aktiengesellschaft, 103 Nev. 329, 331, 741
P.2d 432. 433 (1987); Walker v. Scully, 99 Nev. 45, 46, 657 P.2d 94, 94-95
(1983); Zugel. 99 Nev. at 101, 659 P.2d at 297 (considering a claim that
appellant did not timely receive the notice of entry of judgment and
remanding to the district court for a factual finding as to whether notice
was actually mailed, not whether notice was actually received). Because
the notice of appeal was untimely filed, this court lacks jurisdiction to
consider this appeal, see Healy, 103 Nev. at 331, 741 P.2d at 433, and
ORDERS this appeal DISMISSED.
Silver
, J. Pick.7
Pickering
, J.
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cc: Hon. Jessica K. Peterson, District Judge
Ricky Nolan
Clark County District Attorney/Civil Division
Eighth District Court Clerk
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