Castl v. Pennymac Holdings, Llc ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
TRACY LEE CASTL, No. 82296
Appellant,
vs.
PENNYMAC HOLDINGS, LLC, FILED
Res ondent.
MAY 1 3 2022
ELIZABETH A. BROWN
CLERK OF SUPREME COURT
By -
DEP CL
ORDER DISMISSING APPEAL
This is an appeal from a district court final judgment in an
action relating to real property. Eighth Judicial District Court, Clark
County; Eric Johnson, Judge.
Appellant filed the notice of appeal pro se. On May 13, 2021,
appellant filed her first pro se motion for an extension of time, requesting
an additional 90 days to file the opening brief. Appellant represented that
she has serious medical issues and was in the process of engaging an
appellate attorney. This court granted the motion on May 24, 2021.
Appellant then filed a second pro se motion for extension of time to file the
opening brief, requesting a 60-day extension. Appellant asserted that she
was waiting for the production of requested transcripts; once the transcripts
were produced, she would be able to engage an appellate attorney.
Appellant also cited her serious medical issue. Respondent opposed the
motion, asserting that this was the seventh legal action filed to delay the
foreclosure on appellant's property. Respondent pointed out that prior to
the first extension motion, appellant filed a notice in this court stating that
she was not requesting any transcripts in this appeal. And it did not appear
that appellant had requested any transcripts from the court reporter.
SUPREME COURT Respondent also asserted that appellant has actively participated in this
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case despite her health conditions. Appellant filed a reply detailing her
medical condition. This court denied the motion, directing appellant to file
and serve an informal brief or an opening brief by October 4, 2021. The
order cautioned that failure to cornply could result in the imposition of
sanctions, including the dismissal of this appeaL
On October 4, 2021, attorney Byron Thomas filed a notice of
appearance on behalf of appellant as well as a third motion for an extension
of time (60 days) to file the opening brief. Mr. Thomas asserted that he
recently received the case file and needed more time to review the record
and prepare the brief. Respondent opposed the motion, arguing that
appellant waited 10 months after her district court counsel withdrew to
retain appellate counsel. Respondent contended that appellant only
retained counsel to further delay this rnatter. This court granted the motion
on October 21, 2021, giving appellant until December 3, 2021, to file and
serve the opening brief. Given that appellant had already received
significant extensions of time to file the opening brief, the order stated that
no further extensions of time would be granted absent demonstration of
extraordinary circumstances and extreme need. The order also cautioned
that failure to timely file the opening brief could result in the imposition of
sanctions, including the dismissal of this appeal. See NRAP 31(d).
On December 3, 2021, Mr. Thomas filed a fourth motion for an
extension of time (60 days). Counsel represented that appellant was unable
to pay for the transcripts until November 24, 2021, and they would not be
ready until December 29, 2021. On December 16, 2021, this court entered
an order noting that appellant previously filed a certificate stating that no
transcripts would be requested in this matter, counsel had not filed a
transcript request form in this court, and the district court docket entries
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did not indicate that a transcript request form had been filed in the district
court. Accordingly. this court was not convinced that appellant
demonstrated extraordinary circumstances and extreme need warranting
the requested extension. See NRAP 31(b)(3)(B). Nevertheless, because it
appeared that an extension of time was necessary, this court granted the
extension. giving appellant until December 23, 2021, to serve and file a
transcript request form, and until January 28, 2022, to file and serve the
opening brief. The order again stated that no further extensions of time
would be granted absent demonstration of extraordinary circumstances and
extreme need and cautioned that failure to timely file the opening brief
could result in the imposition of sanctions, including the dismissal of this
appeal. See NRAP 31(d).
Mr. Thomas timely filed the transcript request form in this
court but did not timely file the opening brief or otherwise communicate
with this court. On February 14, 2022, Mr. Thomas untimely filed a fifth
motion for an extension of time (30 days) to file the opening brief. Mr.
Thomas stated that the motion was untimely due to a calendaring error.
He represented that an extension of time was necessary because the
transcripts were not ready until January 20, 2022, and did not include the
requested exhibits. R.espondent opposed the motion. On February 22, 2022,
this court entered an order denying the motion. This court explained that
exhibits are properly obtained frorn the district court clerk, not the court
reporter, and appellant's failure to timely and properly request the exhibits
does not constitute extraordinary and compelling circumstances warranting
an additional extension of time. This court directed appellant to file and
serve the opening brief within 7 days, stated that any additional extensions
would be granted only on a showing of extraordinary circumstances and
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extreme need. see NRAP 31(b)(3)(B). and cautioned that failure to timely
file the opening brief could result in the imposition of sanctions, including
the dismissal of this appeal, see NRAP 31(d).
On March 1, 2022, Mr. Thomas filed a sixth motion for an
extension of time to file the opening brief (30 days) and to reconsider the
denial of the previous motion. Mr. Thomas asserted that he filled out the
request for transcript form but the form did not have a box to check for
exhibits and he was not informed that he needed to request exhibits
separately. He believed that the exhibits were not included with the
transcripts because an outside court reporter prepared the transcripts. Mr.
Thomas stated that the exhibits still had not been provided. Respondent
opposed the motion, citing appellant's history of delay. Respondent asked
that this appeal be dismissed for appellant's failure to timely file the
opening brief. This court denied the motions in an order entered on March
10. 2022. The order stated that although this court's prior order advised
appellant that exhibits were properly requested from the district court clerk
and not the court reporter, the current motion did not indicate that
appellant had contacted the court clerk to obtain copies of any necessary
exhibits. Accordingly, appellant did not demonstrate extraordinary
circumstances and extreme need warranting a sixth extension of time or
that reconsideration of the order denying her motion for a fifth extension of
time was warranted. This court directed appellant to file the opening brief
within 7 days. This court stated that any additional extensions would be
granted only on a showing of extraordinary circumstances and extreme
need. NRAP 31(b)(3)(B). This court denied respondent's motion to dismiss
this appeal but cautioned appellant that failure to timely file the opening
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brief could result in the imposition of sanctions, including the dismissal of
this appeal. NRAP 31(d).
Exactly 7 days later, Mr. Thomas filed a seventh motion for an
extension of time to file the opening brief (30 days) and to reconsider the
denial of the previous motion. Counsel stated that the exhibits were
obtained but an additional extension was necessary due to appellant's
medical condition, which was causing her serious difficulty with
concentration and memory. Respondent opposed the motion, again citing
appellant's history of delay. Respondent asked for the second time that this
appeal be dismissed for failure to timely file the opening brief. In an order
entered on March 29, 2022. this court denied both the extension motion and
the unopposed request to dismiss this appeal. This court directed appellant
to file and serve the opening brief within 7 days (by April 5, 2022). This
court noted that this appeal had been pending for over one year. Therefore,
failure to timely file and serve the opening brief would result in the
imposition of sanctions, including, but not necessarily limited to, monetary
sanctions and/or the dismissal of this appeal. See NRAP 31(d). No further
extensions of time would be granted absent demonstration of the most
extraordinary circumstance and extreme need. See NRAP 31(b)(3)(B).
Appellant did not timely file the opening brief or otherwise communicate
with this court.
On April 7, 2022, respondent filed a notice informing this court
that appellant had not filed the opening brief. Three days later, Mr. Thomas
untimely filed a motion for an eighth extension of time (30 days) to file the
opening brief and to reconsider the denial of the previous motion. Mr.
'Thomas also incorrectly asserted that the sixth extension motion was
denied because the clerk's office did not order the exhibits.
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Thomas explained that appellant has serious neurological issues due to
multiple surgeries and has serious difficulty with concentration and
memory. Mr. Thomas stated that he would bring in additional counsel who
is more fainiliar with appellant and can assist with communication. Mr.
Thornas also requested that this court refrain from imposing sanctions
because appellant's medical condition has caused her serious financial
issues and counsel is undertaking this appeal at reduced rates.
On April 18, 2022, this court entered an order denying the
eighth extension motion and conditionally imposing sanctions on Mr.
Thomas. This court explained that while it is sympathetic to appellant's
medical issues, this appeal had been pending for over 15 months. Appellant
cannot indefinitely delay the briefing of this appeal. And counsel did not
adequately explain how appellant's medical issues caused him to fail to
comply with the briefing deadline or otherwise timely communicate with
this court. This court ordered Mr. Thomas, by May 2, 2022, to pay the sum
of $250 to the Supreme Court Law Library and provide this court with proof
of such payment. This sanction was conditional—it would be automatically
vacated if the opening brief and any appendix were filed and served by April
25. 2022. If the opening brief was not timely filed, the sanction would no
longer be conditional and must be paid. This court cautioned that failure to
comply with the order or any other filing deadlines in this matter would
result in the dismissal of this appeal. Further, because it appeared that Mr.
Thomas conduct in this appeal may constitute violations of RPC 1.3
(diligence). 3.2(a) (expediting litigation), and 8.4 (misconduct), failure to
comply with this order or any other filing deadlines could also result in his
referral to the State Bar of Nevada for investigation pursuant to SCR 104-
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105. Appellant did not timely file the opening brief or otherwise
communicate with this court.
On April 27, 2022, respondent filed a motion to dismiss this
appeal. Respondent again cites appellant's history of delays. It points out
that this court's April 18, 2022, order stated that failure to timely file the
opening brief would result in the dismissal of this appeal. Pursuant to that
order, respondent argues, this appeal must be dismissed.
On May 2, 2022, Mr. Thomas filed proof of payment of the $250
sanction to the Supreme Court Law Library. Therein, Mr. Thomas
indicates that he was unable to file the opening brief due to a fundamental
disagreement with appellant. On May 4, 2022, Mr. Thomas obtained a
telephonic extension of time, until May 18, 2022, to file a response to the
motion to dismiss.
This court has repeatedly stated that it expects all appeals to
"be pursued in a manner meeting high standards of diligence,
professionalism, and competence." Guzdey v. State, 103 Nev. 575, 578, 747
P.2d 233, 235 (1987); czccord Polk v. State, 126 Nev. 180, 184, 233 P.3d 357,
359 (2010): Barry v. Lindner, 119 Nev. 661, 671, 81 P.3d 537, 543 (2003);
State, Nev. Ernp't Sec. Depit v. Weber, 100 Nev. 121, 123, 676 P.2d 1318,
1319 (1984). It is incumbent upon Mr. Thomas, as part of his professional
obligations of competence and diligence to his clients, to know and comply
with all applicable court rules. See RPC 1.1; RPC 1.3. These rules have
been implemented to promote cost-effective, timely access to the courts; it
is imperative that he follow these rules and timely comply with this court's
directives. Weddell v. Stewart, 127 Nev. 645, 650, 261 P.3d 1080, 1084
(2011). Mr. Thomas is "not at liberty to disobey notices, orders, or any other
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directives issued by this court." Id. at 261 P.3d at 1085. Under the
circumstance of this case, as described above, this court declines to wait for
a response to the current motion to dismiss. The motion is granted and this
appeal is dismissed. See NRAP 31(d).
Finally, because it appears that Mr. Thomas conduct in this
appeal may constitute violations of RPC 1.3 (diligence), 3.2(a) (expediting
litigation), and 8.4 (misconduct), this court refers Mr. Thomas to the State
Bar of Nevada for investigation pursuant to SCR 104-105. Bar counsel
shall, within 90 days of the date of this order, inform this court of the status
or results of the investigation and any disciplinary proceedings in this
matter.
It is so ORDERED.
%„iztmiA)
.
Silver
, J.
Cadish
cc: Hon. Eric Johnson, District Judge
Law Offices of Byron Thomas
Byron E. Thomas
Maurice Wood
Akerman LLP/Las Vegas
Eighth District Court Clerk
Bar Counsel, State Bar of Nevada
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