Jb Carter Prop. II, LLC v. Gashtili ( 2015 )

 JB Carter Properties II appealed, arguing that the district
court's refusal to grant its motion to reinstate its contract claims, which
had previously been disposed of on partial summary judgment, was in
error and that the district court erred in finding that Gashtili's
withdrawal of certain funds was covered by NRS 86.291(1) and that
Gashtili was not liable for breach of fiduciary duty.' We review an order
denying a motion to amend the pleadings or to reconsider for an abuse of
discretion. State, Univ. & Cmty. Coll. Sys. v. Sutton, 120 Nev. 972, 987-
88, 103 P.3d 8, 18-19 (2004); State Indus. Ins. Sys. v. Thomas, 101 Nev.
'We observe that appellant's briefs and the joint appendix do not
comply with the Nevada Rules of Appellate Procedure. NRAP 28(e)(1)
requires "[e]very assertion in briefs regarding matters in the record" to be
supported by a citation to the record. (Emphasis added.) Appellant's
briefs contain numerous unsupported assertions of fact. In this regard,
one record citation at the end of a paragraph is generally insufficient to
support all assertions contained in the paragraph, and assertions made in
the discussion section of the briefs must also be supported, even if
previously supported in the facts section. NRAP 30(c)(1) requires the
appendix pages to be consecutively numbered. This requires each volume
after the first to be consecutively numbered as well, beginning with the
page number after the last page number of the previous volume.
Beginning each volume with page number 1 does not comply with this
rule. Although we have considered the merits of this case, parties that do
not comply with the rules concerning briefs and appendices risk sanctions,
including having their appeal dismissed for non-compliance rather than
considered on the merits. Huckabay Props., Inc. v. NC Auto Parts, LLC,
130 Nev., Adv. Op. 23, 322 P.3d 429, 434-35 (2014) (dismissal); Thomas v.
City of N. Las Vegas, 122 Nev. 82, 95-96, 127 P.3d 1057, 1066-67 (2006)
(monetary sanctions).
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293, 296, 701 P.2d 1012, 1014 (1985). 2 We will uphold the district court's
factual findings "if not clearly erroneous and if supported by substantial
evidence." Weddell v. H20, Inc., 128 Nev., Adv. Op. 9, 271 P.3d 743, 748
(2012) (internal quotation marks omitted).
Regarding JB Carter Properties ll's contract claims, partial
summary judgment was initially granted in favor of Gashtili because no
evidence of an operating agreement existed. At trial, Bartus Carter (JB
Carter Properties II's principal), Gashtili, and Brown all testified that
they signed an operating agreement. Consequently, JB Carter Properties
II orally moved to conform the pleadings to the trial testimony or for
reconsideration of the partial summary judgment to reinstate its contract
claims, arguing that the three principals signed an operating agreement
and, therefore, one must exist. The district court orally denied the motion
when JB Carter Properties II was unable to provide the operating
agreement's terms On appeal, JB Carter Properties II argues that the
2 Respondent's argument that this court lacks jurisdiction to consider
the denial of appellant's motion to reconsider lacks merit. While we lack
jurisdiction to consider an appeal from a post-judgment order denying a
motion to reconsider because no rule or statute provides for an appeal
from such an order, see, e.g., Phelps v. State, 111 Nev. . 1021, 1022, 900 P.2d
344, 345 (1995), a party may challenge an order denying a motion to
reconsider on appeal from a final judgment, where "the reconsideration
order and motion are properly part of the record on appeal from the final
judgment," if the reconsideration motion was made after the final
judgment, Arnold v. Kip, 123 Nev. 410, 417, 168 P.3d 1050, 1054 (2007), or
where a reconsideration motion is made and then resolved by interlocutory
order before entry of final judgment, Consol. Generator-Nev., Inc. v.
Cummins Engine Co., 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998).
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district court abused its discretion in denying the motion, and it further
argues that the operating agreements that it attached to its opposition to
Gashtili's motion for partial summary judgment provided the terms of the
operating agreement.
But, as Gashtili responds, Carter testified that, while he
believes that an operating agreement existed, he had never seen a fully
executed operating agreement. Moreover, while Carter, Gashtili, and
Brown all testified that they signed an operating agreement, none of them
indicated that the version they signed was either of the versions provided
with JB Carter Properties II's opposition. And finally, when the district
court questioned JB Carter Properties II's counsel regarding the terms of
the operating agreement, counsel replied that no one had provided a
document with the terms. Under these circumstances, we conclude that
the district court did not abuse its discretion in denying JB Carter
Properties II's motion to conform the pleadings or for reconsideration. See
State, Univ. & Cmty. Coll. Sys., 120 Nev. at 987-88, 103 P.3d at 18-19;
State Indus. Ins. Sys., 101 Nev. at 296, 701 P.2d at 1014; see generally
Ware v. Rodale Press, Inc., 322 F.3d 218, 225 (3d Cir. 2003) (stating that,
in a breach of contract action, the plaintiff has the burden to prove the
existence and the essential terms of the contract).
JB Carter Properties II's other argument is that Gashtili's
surreptitious withdrawal of funds was a breach of fiduciary duty. The
evidence presented indicated that, while Gashtili withdrew certain funds
without informing Carter, Gashtili had the authority to withdraw the
funds. See NRS 86.291(1) (stating that, in the absence of an operating
agreement, the "management of a limited-liability company is vested in its
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members in proportion to their contribution to its capital"). Further,
Brown testified that the funds were withdrawn and applied to legitimate
Fastran expenses. Given the evidence provided in the record, we conclude
that substantial evidence supports the district court's finding that
Gashtili's withdrawals were not a breach of fiduciary duty. Weddell, 128
Nev., Adv. Op. 9, 271 P.3d at 748. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Saitfa
J.
14-"b11:iniy: Pickering
cc: Hon. Mark R. Denton, District Judge
Michael H. Singer, Settlement Judge
Michael R. Mushkin & Associates, P.C.
Greenberg Traurig, LLP/Las Vegas
Eighth District Court Clerk
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