Lytle v. Rosemere Estates Property Owners Ass'n ( 2013 )

129 Nev., Advance Opinion 18
IN THE SUPREME COURT OF THE STATE OF NEVADA
JOHN ALLEN LYTLE AND TRUDI LEE No. 60657
LYTLE, AS TRUSTEES OF THE LYTLE
TRUST,
Appellants,
vs.
FILED
ROSEMERE ESTATES PROPERTY DEC 2 6 2013
OWNERS ASSOCIATION, A NEVADA
IRA
NONPROFIT CORPORATION, CLE
Respondent. BY
F DEPUTY CLERK
JOHN ALLEN LYTLE AND TRUDI LEE No. 61308
LYTLE, AS TRUSTEES OF THE LYTLE
TRUST,
Appellants,
vs.
ROSEMERE ESTATES PROPERTY
OWNERS ASSOCIATION, A NEVADA
NONPROFIT CORPORATION,
Respondent.
Jurisdictional screening of consolidated appeals from a final
judgment in an action concerning homeowners' association dues and
governance (Docket No. 60657) and from a post-judgment order awarding
supplemental attorney fees (Docket No. 61308). Eighth Judicial District
Court, Clark County; Rob Bare, Judge.
Briefing reinstated.
Sterling Law, LLC, and Beau Sterling, Las Vegas,
for Appellants.
Leach Johnson Song & Gruchow and Sean L. Anderson and Ryan W.
Reed, Las Vegas,
for Respondent.
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/5 39075//
BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.
OPINION
PER CURIAM:
NRCP 59(e) allows a party to move the district court to alter
or amend a "judgment." The timely filing of an NRCP 59(e) motion may
toll the period in which a notice of appeal from the judgment must be filed
until the motion is resolved. NRAP 4(a)(4). Here, however, appellants
filed a motion to alter or amend a post-judgment order awarding
supplemental attorney fees. We asked the parties to address whether an
NRCP 59(e) tolling motion is properly directed at a post-judgment order or
whether that rule is limited to final judgments.
NRCP 54(a) defines judgment to include "any order from
which an appeal lies." Based on this definition, we conclude that tolling
under NRAP 4(a)(4) applies to an NRCP 59(e) motion to alter or amend
directed at an appealable special order after final judgment. As a result,
the notice of appeal from this order was timely filed and the appeal may
proceed.
FACTS AND PROCEDURAL HISTORY
In a dispute concerning unpaid homeowners' association
(ROA) dues, the district court concluded that the HOA fees were proper,
dismissed appellants' claims to the contrary, and awarded respondent
HOA the unpaid fees and attorney fees. Although appellants prematurely
filed a notice of appeal before the district court's final judgment was
entered, their appeal from that order was deemed timely and proper once
the order was filed. NRAP 4(a)(6). Thus, there is no jurisdictional issue
as to the appeal from the final judgment.
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Meanwhile, however, respondent moved for and was awarded
supplemental attorney fees for its counsel's additional services in the court
below. The supplemental attorney fees award's notice of entry was served
by mail on August 14, 2012. Appellants did not immediately file a notice
of appeal, but instead timely filed an NRCP 59(e) motion to alter or amend
the order. After the district court denied the motion to alter or amend in a
written order entered on January 16, 2013, appellants filed a notice of
appeal from the supplemental attorney fees award on January 30, 2013,
well beyond 30 days from the supplemental attorney fees award's notice of
entry. Because it was unclear whether appellants' motion to alter or
amend the post-judgment order awarding supplemental attorney fees
tolled the period for filing the notice of appeal, this court issued an order
to show cause whether the notice of appeal was timely filed. The parties
timely responded.
DISCUSSION
A notice of appeal must be filed within 30 days following
service of the notice of entry of the judgment or appealable order. NRAP
4(a)(1). An additional 3 days are added to the 30-day appeal period under
NRAP 26(c) to allow for service of the notice of entry, unless the paper is
delivered on the date of service.
Here, the district court's order awarding supplemental
attorney fees qualifies as a special order after final judgment, and is
therefore an appealable order. NRAP 3A(b)(8); Winston Prods. Co. v.
DeBoer, 122 Nev. 517, 525, 134 P.3d 726, 731 (2006). As service of the
order's notice of entry was by mail, appellants had only 33 days from
August 14, 2012, to file their notice of appeal, unless the appeal period
was tolled. NRAP 4(a)(1), 26(c). Generally, the time for filing a notice of
appeal may be tolled if one of several different enumerated motions is
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filed, including a motion to alter or amend the judgment under NRCP 59.
NRAP 4(a)(4). But because NRCP 59 provides for a motion to alter or
amend the judgment, it is unclear whether the motion was properly
applied to a post-judgment order. See, e.g., Ex parte Troutman Sanders,
LLP, 866 So. 2d 547, 550 (Ala. 2003) (stating that a motion to alter or
amend "may be made only in reference to a final judgment or order"
(internal quotation omitted)). Thus, the question in this appeal is whether
the rule allows only for motions directed at final judgments, or whether a
party can move to alter or amend other orders entered by the district court
as well.'
In resolving this issue, we turn to the definition of judgment
as outlined in NRCP 54(a), which states that Thludgment' as used in these
rules includes. . . any order from which an appeal lies." See also Lee v.
GNLV Corp., 116 Nev. 424, 426-27, 996 P.2d 416,417 (2000) (recognizing
that this definition pertains to the Nevada Rules of Civil Procedure). As
this definition specifically states that it applies whenever the term
"judgment" is used in the Nevada Rules of Civil Procedure, we must apply
this definition when construing the language of NRCP 59(e) allowing for a
"motion to alter or amend the judgment." Applying the definition that
judgment includes any appealable order, a motion to alter or amend is
'In Winston Products Co., 122 Nev. at 525-26, 134 P.3d at 731-32,
this court held that a tolling motion directed at a final judgment could also
serve to toll the time to appeal from a special order after final judgment.
Our holding in Winston Products does not resolve the jurisdictional issue
raised here, however, as the tolling motion in the present case was not
directed at a final judgment, but instead was directed solely at the special
order after final judgment.
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permitted as to any appealable order, not just final judgments. And, as a
result, a motion to alter or amend any appealable order will generally toll
the time to appeal from that order.
The Tenth Circuit Court of Appeals reached this same
conclusion when it addressed the issue under the federal rules of civil and
appellate procedure, which are similar to Nevada's rules in this regard.
Autorama Corp. v. Stewart, 802 F.2d 1284, 1286-87 (10th Cir. 1986); see
also Moseley v. Eighth Judicial Dist. Court, 124 Nev. 654, 662-63, 188 P.3d
1136, 1142 (2008) (recognizing that this court may look to the
interpretation of similar federal rules when construing a Nevada Rule of
Civil Procedure). In Autorama Corp., the court faced the same
circumstances that exist in the present case, as the appellants there had
filed a motion equivalent to a motion to alter or amend directed at a post-
judgment order denying attorney fees. 802 F.2d at 1286. The Autorama
Corp. court held that the tolling provision under the federal counterpart to
NRAP 4(a)(4) applied to the motion to alter or amend, even though it was
directed at a post-judgment order, and therefore the time for filing the
notice of appeal was tolled until after the lower court resolved the motion.
Id. at 1286-87; see also Marie v. Allied Home Mortg. Corp., 402 F.3d 1, 6-8
(1st Cir. 2005) (addressing the federal rules analogous to NRCP 54(a) and
NRAP 4(a)(4) in the context of a party filing a motion to alter or amend
directed at an independently appealable interlocutory order); Lichtenberg
v. Besicorp Grp. Inc., 204 F.3d 397, 400 (2d Cir. 2000) (same). In Marie
and Lichtenberg, the courts applied the definition of "judgment" provided
in the federal counterpart to NRCP 54(a), which recognizes that
"judgment" includes any appealable order, to determine that a motion to
alter or amend could be directed at an appealable interlocutory order and
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that, as a result, the period for filing a notice of appeal provided under the
federal counterpart to NRAP 4(a)(4) applied to toll the appeal period, even
though the motion to alter or amend was not directed at a final judgment.
Marie, 402 F.3d at 6-8; Lichtenberg, 204 F.3d at 400.
Accordingly, we conclude that NRAP 4(a)(4) tolling applies to
appellants' NRCP 59(e) motion to alter o il. amend that was directed at the
post-judgment order awarding supplemental attorney fees. The
supplemental attorney fees order is independently appealable as a special
order after final judgment, and thus, falls under the definition of judgment
provided in NRCP 54(a). As a result, the notice of appeal was timely filed,
and these appeals may proceed. We reinstate the briefing schedule as
follows. As appellants' opening brief was due at the time we issued our
order to show cause and appellants had already received extensions of
time to file the opening brief, appellants must file and serve their opening
brief and appendix within 30 days of the date of this opinion. No more
extensions of time will be granted. Thereafter, briefing shall proceed in
accordance with NRAP 31(a)(1).
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