Huckabay Props. v. NC Auto Parts ( 2014 )

130 Nev., Advance Opinion 23
IN THE SUPREME COURT OF THE STATE OF NEVADA
HUCKABAY PROPERTIES, INC., A No. 61024
NEVADA CORPORATION,
Appellants,
vs.
FILED
NC AUTO PARTS, LLC, A NEVADA MAR 2 7 2014
LIMITED LIABILITY COMPANY; AND T C K. LINDEMAN
STEVEN B. CRYSTAL, AN CL
INDIVIDUAL,
Respondents.
HUCKABAY PROPERTIES, INC., A No. 61791
NEVADA CORPORATION; AND JOHN
HUCKABAY, JR.,
Appellants,
vs.
NC AUTO PARTS, LLC, A NEVADA
LIMITED LIABILITY COMPANY; AND
STEVEN B. CRYSTAL,
Respondents.
Petition for en bane reconsideration of an order dismissing
appeals for failure to file opening brief and appendix.
Petition for en bane reconsideration denied.
Hoffman, Test, Guinan & Collier and John A. Collier, Reno; McDonald
Carano Wilson LLP and Debbie A. Leonard and Seth T. Floyd, Reno;
Sterling Law LLC and Beau Sterling, Las Vegas,
for Appellants.
Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno; Wm.
Patterson Cashill, Reno,
for Respondents.
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BEFORE THE COURT EN BANC.
OPINION
By the Court, HARDESTY, J.:
These consolidated appeals were dismissed for failure to
timely file the opening brief and appendix. In seeking the en banc court's
reconsideration, appellants argue that dismissal of their appeals based on
the missteps of their lead appellate attorney is contrary to this court's
precedent recognizing public policy favoring dispositions on the merits.
Appellants' dissatisfaction with their attorney's performance, however,
does not entitle them to the reinstatement of their appeals, and their
argument to the contrary is not consistent with general agency principles,
under which a civil litigant is bound by the acts or omissions of its
voluntarily chosen attorney. Although this court has a sound policy
preference for deciding cases on the merits, that policy is not absolute and
must be balanced against countervailing policy considerations, including
the public's interest in expeditious resolution of appeals, the parties'
interests in bringing litigation to a final and stable judgment, prejudice to
the opposing side, and judicial administration concerns, such as the court's
need to manage its sizeable and growing docket. We therefore disagree
with appellants that precedential uniformity provides a basis to reinstate
these appeals. As appellants' contentions fail to satisfy NRAP 40A's
standards, en banc reconsideration is denied.
FACTS AND PROCEDURAL HISTORY
The appeal in Docket No. 61024 challenged a district court
judgment following a bench trial in a real property contract action. The
appeal in Docket No. 61791 challenged the same court's post-judgment
orders awarding attorney fees and costs. The appeals were consolidated
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on December 12, 2012, and a briefing schedule was set, under which
appellants' opening brief was due by no later than March 12, 2013.
Overdue opening brief
On appellants' motion, the briefs due date was extended to
April 11, 2013. On April 12, 2013, appellants filed a motion seeking a
second extension until May 13, 2013, to file the brief Because appellants
did not submit the brief by the May 13 requested deadline, appellants'
motion for a second extension was denied as moot on May 24, 2013.
Despite denying the motion, the May 24 order allowed appellants 11 more
days, until June 4, 2013, to file and serve the opening brief and appendix,
but the order warned that failure to do so could result in the appeals'
dismissal. The brief and appendix were not filed by that deadline.
Appellants had two attorneys of record in these appeals: Beau Sterling
and John A. Collier. Mr. Sterling apparently was responsible for briefing
the appeal and filing documents in this court. Mr. Collier, who was trial
counsel, received copies of this court's notices and orders.
Motion to dismiss
On June 10, 2013, respondents filed a motion to dismiss these
appeals.' Appellants, through Mr. Sterling, opposed the motion and again
"Mr. Sterling is a registered user of the court's electronic filing
system and Mr. Collier is not. The Nevada Electronic Filing and
Conversion Rules provide that the court must provide notice to all
registered users that a document has been electronically filed and is
available for review, and registered users are deemed to have consented to
receiving service electronically. See NEFCR 9(b)-(c). As to nonregistered
users, a party filing a document must serve the nonregistered recipient by
traditional means. NEFCR 9(d). Here, respondents filed the motion to
dismiss electronically, such that Mr. Sterling received service, but they did
not serve Mr. Collier by traditional means.
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asked for more time to file the brief, until June 12, stating that the "short
amount of additional time is requested in order to help spread out the
deadlines slightly on a number of matters, including this one, that all fell
due around the same time, and most of which are similarly urgent." Mr.
Sterling also represented that he had recently filed briefs and prepared for
oral argument in other matters and that he had a personal commitment.
He stated that his motion for a third extension of time was filed late
because he wanted to be sure he could complete the brief by any new
deadline requested before making the motion.
Respondents opposed any additional time and argued that
because this court denied appellants' second motion for an extension of
time as moot in the May 24 order, the 11-day grace period allowed in that
order for filing the brief could not "possibly have lead Mr. Sterling to
believe the court would grant another extension or that the 11-day time
limit in the order could be ignored." Respondents also stated that Mr.
Sterling misrepresented that he attempted to contact respondents to
confer on a third extension of time.
On June 14, 2013, appellants electronically filed in this court a
"certificate of service" for the opening brief and appendix, indicating that
on June 12, 2013, they submitted to this court and served on respondents
by United States mail the opening brief and appendix. The brief and
appendix, however, were not submitted to this court for filing with the
certificate of service. They were subsequently provisionally received in
this court by mail on June 17, 2013. Based on the failure to file the brief
and appendix by the June 4 deadline and failure to comply with court
rules and directives, the appeals were dismissed by order of this court on
June 25, 2013.
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Motion for reconsideration and petition for rehearing
Through newly retained counsel, appellants filed a motion for
reconsideration and a petition for rehearing to reinstate their appeals,
arguing that they had no knowledge of Mr. Sterling's pattern of disregard
for this court's orders, and relying on this court's stated policy favoring
merit-based consideration of appeals. They also stated that Mr. Sterling
and respondents' counsel failed to notify Mr. Collier about respondents'
motion to dismiss, which "prevented Mr. Collier from taking steps to
salvage the appeal[s]."
Respondents opposed the motion and rehearing petition,
arguing that Mr. Collier was aware of the briefing deadlines and was
served with this court's notices and order regarding missed deadlines and
warning about possible dismissal for failing to file documents.
Respondents argued that this awareness, along with the fact that Mr.
Collier never received a draft copy of the opening brief from Mr. Sterling
at any time before the briefing deadline expired, should have made it clear
to Mr. Collier that the appeals were not being managed properly. In that
regard, they pointed out that Mr. Sterling contacted Mr. Collier on June 4,
2013, requesting copies of the transcripts from Mr. Collier, which should
have alerted Mr. Collier that Mr. Sterling could not have possibly already
prepared the brief because he did not have the necessary transcripts even
on the briefs final due date, June 4. Respondents also argued that even
though Mr. Collier was not served with a copy of the motion to dismiss,
which was filed on June 10, 2013, the opening brief was overdue by that
date and this court could have sua sponte dismissed the appeals pursuant
to its May 24 order, a copy of which was provided to Mr. Collier.
The motion for reconsideration and petition for rehearing were
denied. See NRAP 31(b)(3) (requiring a motion for an extension of time to
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be filed before the filing deadline expires); NRAP 31(d) (explaining
consequences for failing to file briefs, including dismissal); Weddell v.
Stewart, 127 Nev. , 261 P.3d 1080 (2011) (addressing counsel's
repeated failures to follow court rules and directives and declining to
reconsider an order dismissing an appeal based on such failures); NRAP
40(c) (setting forth rehearing standards). This petition for en bane
reconsideration followed.
DISCUSSION
In seeking to reinstate their appeals, appellants contend that
reconsideration is necessary to maintain uniformity in the court's
jurisprudence and to preserve public policy favoring a decision on the
merits and disfavoring a "deprivation of appeal rights based solely on the
missteps of counsel."2 Appellants further contend that since Mr. Collier
was not served with the motion to dismiss or Mr. Sterling's motions for
2According to appellants, this court's dismissal order punished
appellants for their attorney's misconduct in other unrelated cases,
notwithstanding that Mr. Sterling belatedly sought a third extension of
time and ultimately submitted the opening brief in these matters, albeit
late. To the contrary, the order dismissing these appeals was grounded
solely on appellants' failure to comply with court rules and orders
concerning the overdue documents in these matters. Thus, appellants'
contention that they are being punished for their attorney's "misconduct in
other cases unrelated to their own" is not supported and lacks merit.
Although Mr. Sterling was referred to the state bar in the same order
dismissing the appeals, the dismissal was based on the circumstances of
these two appeals, only. While Mr. Sterling's referral to the state bar was
based in part on the conduct that led to the dismissal of these appeals, and
in part on similar conduct in other cases, the inverse is not true, i.e., these
appeals were not dismissed based in any part on Mr. Sterling's conduct in
other cases. Thus, we do not further address this argument.
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extensions of time, they were deprived of their constitutional right to
receive proper service (on Collier).
En bane reconsideration is disfavored, and this court will only
order reconsideration when necessary to preserve precedential uniformity
or when the case implicates important precedential, public policy, or
constitutional issues. NRAP 40A(a). Neither of those standards have
been met here.
Precedential uniformity does not mandate reinstatement of these appeals
In seeking reconsideration, appellants argue that Hansen v.
Universal Health Services of Nevada, Inc., 112 Nev. 1245, 924 P.2d 1345
(1996), demands that these matters be heard on their merits, but we are
not persuaded that it does. 3
In Hansen, the court noted its concern with appellant's
counsel's failure to comply with court rules and orders, but nevertheless
declined to grant respondents' motion to dismiss the appeal. Id. at 1247,
924 P.2d at 1346. The appellant in Hansen was a patient who alleged that
he was permanently disabled as a result of the respondents' actions in
implanting an experimental device in appellant's spine. Id. at 1246, 924
3 Appellants also rely on Hotel Last Frontier Corp. v. Frontier
Properties, Inc., 79 Nev. 150, 154-55, 380 P.2d 293, 295 (1963), but
Frontier reviewed the district court's denial of an NRCP 60(b) motion to
set aside a default judgment, and there is no analogous remedial rule in
the appellate context that allows an appeal's reinstatement based on
excusable neglect or mistake. Instead, when a party receives an
unfavorable decision on appeal, rehearing or reconsideration may be
granted if that party meets the standards set forth under NRAP 40 or
NRAP 40A. Thus, because Frontier was decided under different
procedural and factual circumstances than these appeals, we do not
further address Frontier.
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P.2d at 1345-46. In the district court, appellant sought over $2,000,000 in
damages, and when he lost at trial and judgment was entered against
him, he appealed alleging numerous reversible trial errors. Id.
Appellant's attorney, however, failed to have the record transmitted from
the district court to this court despite being given several extensions of
time to accomplish that rule-mandated task. Id. at 1246-47, 924 P.2d at
1346. Respondents moved to dismiss the appeal, and the court denied the
motion, explaining that
counsel's calendaring error, preoccupation with
other trials and failure to contact the court
reporter do not constitute extreme or
unforeseeable circumstances. Nevertheless, the
compelling nature of the facts in the underlying
dispute persuades us to allow this appeal to
proceed. Moreover, in light of this court's
preference for deciding cases on the merits, and
because the dilatory conduct in this matter has
been occasioned solely by counsel's inexcusable
neglect, rather than his client's conduct, we
decline to dismiss this appeal.
Id. at 1247-48, 924 P.2d at 1346 (citations omitted). Hansen, therefore, is
grounded on three reasons: its compelling facts, policy preference for
merits-based dispositions, and the dilatory conduct was deemed
attributable to counsel, not appellant. Id.
Addressing each of those reasons, we conclude that Hansen
first is limited in part to its facts, which were determined to be
"compelling." Id. But the compelling facts-conclusion that the court
recognized is not followed by any citation of authority, nor did the court
advance any reasoning or explanation why the nature of the facts might be
a sustainable basis to allow an appeal to continue despite repeated
failures to comply with court rules and orders. Id. Because Hansen does
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not provide any reasoning or legal basis for the conclusion that compelling
facts may preclude dismissal, we conclude that the factual nature of an
underlying case is not an appropriate measure to evaluate whether an
appeal should be dismissed for violations of court rules and/or orders.
Thus, we disapprove of Hansen to the extent it indicates that a fact-based
assessment of the underlying civil action should be made before
determining whether to dismiss an appeal on procedural grounds.
Second, although Hansen was also partly based on the sound
policy preference for deciding cases on the merits, that policy is not
boundless and must be weighed against other policy considerations,
including the public's interest in expeditious appellate resolution, which
coincides with the parties' interests in bringing litigation to a final and
stable judgment; prejudice to the opposing party; and judicial
administration concerns, such as the court's need to manage its large and
growing docket. See Link v. Wabash R.R. Co., 370 U.S. 626, 630-31 (1962);
Kushner v. Winterthur Swiss Ins. Co., 620 F.2d 404, 406-08 (3d Cir. 1980);
GCIU Emp'r Ret. Fund v. Chi. Tribune Co., 8 F.3d 1195, 1199 (7th Cir.
1993) (noting that courts must "perpetually balance the competing
interests of keeping a manageable docket against deciding cases on their
merits"). Thus, a party cannot rely on the preference for deciding cases on
the merits to the exclusion of all other policy considerations, and when an
appellant fails to adhere to Nevada's appellate procedure rules, which
embody judicial administration and fairness concerns, or fails to comply
with court directives or orders, that appellant does so at the risk of
forfeiting appellate relief. See NRAP 31(d) (describing consequences for
failure to file briefs or appendix, which include dismissal of the appeal);
Weddell v. Stewart, 127 Nev. , 261 P.3d 1080 (2011); City of Las Vegas
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v. Int'l Ass'n of Firefighters, Local No. 1285, 110 Nev. 449, 874 P.2d 735
(1994); Varnum v. Grady, 90 Nev. 374, 528 P.2d 1027 (1974); see also
NRAP 9(a)(6) and NRAP 14(c) (providing that an appeal may be dismissed
for failure to file transcript request forms and docketing statements,
respectively). Accordingly, dismissal of an appeal after a party fails to
comply with court rules and orders is not inconsistent with the policy
preference to decide cases on the merits when balanced with other policy
concerns, and our decision to dismiss these appeals following such failures
does not mandate reconsideration to maintain uniformity with Hansen.
Finally, Hansen's reasoning that the appeal should be allowed
to proceed in part because the dilatory conduct in that matter was
"occasioned solely by counsel's inexcusable neglect, rather than his client's
conduct," is inconsistent with general agency principles. 112 Nev. at 1247-
48, 924 P.2d at 1346. In particular, an attorney's act is considered to be
that of the client in judicial proceedings when the client has expressly or
impliedly authorized the act. Restatement (Third) of The Law Governing
Lawyers §§ 26, 27 (2000 and Supp. 2013); see Pioneer Inv. Servs. Co. v.
Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 396-97 (1993) (noting that in
a representative litigation system, "clients must be held accountable for
the acts and omissions of their attorneys"). Thus, to the extent that
Hansen holds that dismissal will not follow violations of court rules or
orders because counsel, acting on the client's behalf, occasioned such
violations, that decision is overruled. 4
'While the United States Supreme Court has recognized an
exception to holding a litigant responsible for its attorney's procedural
errors when the attorney actually abandons the client without notice, thus
severing the principal-agent relationship, the cause necessary for that
continued on next page...
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Failure to follow court rules as grounds for dismissing civil appeal
The United States Supreme Court has recognized that when
an action is dismissed for failure to comply with court rules, the litigant
cannot seek a do-over of their dismissed action based on arguments that
dismissal is too harsh a penalty for counsel's unexcused conduct, as to do
so would offend general agency principles. Link, 370 U.S. at 633-34
(rejecting argument that petitioner's claim should not have been dismissed
based on counsel's unexcused conduct because "fp] etitioner voluntarily
chose this attorney as his representative in the action, and he cannot now
avoid the consequences of the acts or omissions of this freely selected
agent"). While Link was decided in the context of reviewing a trial court
dismissal for failure to prosecute, its reasoning that a party cannot seek to
avoid a dismissal based on arguments that his or her attorney's acts or
omissions led to the dismissal applies to appellate court dismissals with
equal force.
For example, in Kushner v. Winterthur Swiss Insurance Co.,
the Third Circuit Court of Appeals dismissed an appeal for appellant's
failure to file an appendix that complied with court rules. 620 F.2d 404,
...continued
exception to apply is not present here. See Maples v. Thomas, 565 U.S.
, 132 S. Ct. 912, 922-23 (2012) (distinguishing claims of attorney
error, no matter how egregious, from claims of attorney abandonment, in
concluding that cause to excuse procedural errors cannot be based on an
attorney's error). We have also recognized two exceptions to the general
agency rule that the "sins" of the lawyer are visited upon his client where
the lawyer's addictive disorder and abandonment of his legal practice or
criminal conduct justified relief for the victimized client, but those
exceptional circumstances are not present here either. See NC-DSH, Inc.
v. Garner, 125 Nev. 647, 656, 218 P.3d 853, 860 (2009); Passarelli v. J-Mar
Dev., Inc., 102 Nev. 283, 286, 720, P.2d 1221, 1223-24 (1986).
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407 (3d Cir. 1980). In so doing, the court made it clear to the appellate bar
the importance and necessity of complying with court rules concerning the
content and filing of briefs and appendices. Id. The court explained the
practical reasons and jurisprudential justification for its decision to
dismiss the appeal, noting that the rules of appellate procedure and local
court rules were enacted to enable the court to effectively process its
increasing caseload, and that the number of appeals filed per judge had
swelled dramatically since the rules were enacted. Id. at 406-07. 5 The
court thus reasoned that it would not expend valuable judicial time in
performing the work of errant counsel who failed to properly comply with
briefing rules, and who, by failing to abide by appellate rules, hindered the
court's efforts to provide speedy and just dispositions of appeals for every
litigant. Id. at 407; see also Barber v. Am. Sec. Bank, 841 F.2d 1159, 1162,
(D.C. Cr. 1988) (dismissing appeal based on "counsel's failure to file a
brief on time, his failure to file a motion for an extension ten days prior to
the date his brief was due, his failure to seek leave to file his time
5 Unlike civil procedure rules governing district court actions,
appellate court rules generally do not provide a remedial basis for
reconsidering a final decision based on a litigant's neglect or mistake in
processing its appeal; instead, rehearing or reconsideration of an appeal
are not favored and will only be granted for limited reasons. Compare,
e.g., the remedial district court rule NRCP 60(b), which provides a
mechanism for setting aside a default judgment or order for mistake,
inadvertence, surprise, or excusable neglect with the appellate rule for
rehearing, NRAP 40, which allows rehearing of an appeal only upon
demonstration that the court overlooked or misapprehended points of law
or fact, and NRAP 40A, which explains the two bases on which en banc
•
reconsideration may be granted, neither of which are grounded on
counsel's or the litigant's excusable neglect, mistake, or inadvertence.
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enlargement motion late, and the clearly inadequate grounds he
eventually offered for the late filings")
In imposing the sanction of dismissal, the court in Kushner
was mindful of the impact on appellants, noting that it could be argued
that dismissal of an appeal unduly penalizes the litigant for the dereliction
of errant counsel 620 F.2d at 407. The court reasoned, however, that
unlike a defendant in a criminal case, an aggrieved party in a civil case
involving only private litigants "does not have a constitutional right to the
effective assistance of counsel The remedy in a civil case, in which chosen
counsel is negligent, is an action for malpractice." Id. at 408 (internal
quotation marks omitted).° Other federal appellate courts have similarly
dismissed appeals as a sanction for poorly presenting a case or failing to
comply with briefing and appendix content rules. See Abner v. Scott Mem'l
Hasp., 634 F.3d 962, 965 (7th Cir. 2011) (summarily affirming district
court summary judgment and striking oversized brief that was not
accompanied by a timely and supported motion for leave to exceed the
°Although in criminal appeals the constitutional right to effective
assistance of counsel under the United States Constitution's Sixth
Amendment applies, there is no parallel constitutional protection in the
civil context. See U.S. Const. amend. VI ("In all criminal prosecutions, the
accused shall enjoy the right to . the Assistance of Counsel for his
defense"); Rodriguez v. Eighth Judicial Dist. Court, 120 Nev. 798, 804-05,
102 P.3d 41, 45-46 (2004) (recognizing that the Sixth Amendment right to
counsel applies only in criminal prosecutions); Sanchez v. U.S. Postal
Serv., 785 F.2d 1236, 1237 (5th Cir. 1986) ("[T]he sixth amendment right
to effective assistance of counsel does not apply to civil litigation."); Nelson
v. Boeing Co., 446 F.3d 1118, 1119 (10th Cir. 2006) (providing that "filf a
client's chosen counsel performs below professionally acceptable
standards, with adverse effects on the client's case, the client's remedy is
not reversal, but rather a legal malpractice lawsuit against the deficient
attorney").
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type-volume limitation, and announcing a warning that the "flagrancy of
the violation" of the appellate rules alone might well have justified the
appeal's dismissal); Snipes v. Ill. Dep't of Corr., 291 F.3d 460, 464 (7th Cir.
2002) (noting that an appellate court may dismiss an appeal or summarily
affirm the judgment when appellant fails to comply with briefing rules);
N I S Corp. v. Liberty Mitt. Ins. Co., 127 F.3d 1145 (9th Cir. 1997)
(dismissing appeal based on briefing violations); United States v. Green,
547 F.2d 333 (6th Cir. 1976) (dismissing appeal based on appendix
deficiencies); see generally Wesley Kobylak, Annotation, Sanctions, in
Federal Circuit Courts of Appeals, for Failure to Comply with Rules
Relating to Contents of Briefs and Appendixes, 55 A.L.R. Fed. 521, 526-27
(1981).
Here, appellants did not follow the rules governing briefing
and motions practice, and they did not adhere to the briefing deadlines set
forth by court order, nor did they provide any adequate basis for their
failure to do so. Thus, they cannot expect this court to continue to keep
these matters on its docket and then consider the merits of the appeals
when appellants eventually decide to submit their brief for consideration.
Our May 24, 2013, order in fact warned appellants that dismissal may be
forthcoming if the brief was not filed by the deadline imposed by that
order. The dismissal therefore should have come as no surprise. Although
appellants contend that Hansen v. Universal Health Services of Nevada,
Inc., 112 Nev. 1245, 924 P.2d 1345 (1996), provides them an out for the
dismissal of their appeals and that Hansen should be applied to grant
them a mulligan, in a sense, such a do-over is appropriately limited to
remedy a poorly executed tee-shot, and not so much in the litigation
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setting to correct failures to adhere to court rules and orders. 7 This court
has in fact on several occasions recognized that an appeal may be
appropriately dismissed for just such violations. See Weddell v. Stewart,
127 Nev. 261 P.3d 1080 (2011) (declining to reconsider an order
dismissing an appeal based on repeated failures to follow court rules and
directives); City of Las Vegas v. Ass'n of Firefighters, Local No. 1285,
110 Nev. 449, 453-54, 874 P.2d 735, 738 (1994) (concluding that dismissal
was an appropriate sanction for failure to supply the record and take
action in an appeal as "the primary responsibility for this transgression
must lie with the appellant"); Varnum v. Grady, 90 Nev. 374, 528 P.2d
1027 (1974) (dismissing an appeal based on appellant's counsel's multiple
procedural derelictions and dilatory pursuit of appeal). As explained
above, our decision denying reconsideration and declining to reinstate
these appeals is consistent with authority from federal jurisdictions and
with general agency principles that bind a client to its attorney's acts and
omissions.
7 Likewise, appellants' argument that the court could have accepted
the late-submitted brief and appendix does not provide a basis for en banc
reconsideration. See NRAP 40A; NRAP 31(b)(3) (a motion for an extension
of time may be made no later than the due date for the brief); Varnum v.
Grady, 90 Nev. 374, 376, 528 P.2d 1027, 1028-29 (1974) (counsel's caseload
is not a reasonable ground for neglect of duties); Malloy ix WM Specialty
Mortg., L.L.C., 512 F.3d 23, 27 (1st Cir. 2008) (affirming district court
dismissal order, concluding that "plaintiffs proffered no legitimate excuse
for the delay," and instead relied on legally insignificant excuses, such as
preoccupation with other cases); Damiani v. ILL Hosp., 704 F.2d 12, 17
(1st Cir. 1983) (affirming district court dismissal order and, in so doing,
pointing out counsel's improper conduct in filing self-indulgent motions,
not making every effort to comply with court orders, not seeking consent of
opposing counsel if compliance was actually impossible, and not seeking
"court approval for noncompliance based on a truly valid reason").
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Respondents' failure to serve appellants' second attorney with their motion
to dismiss is not grounds for reconsideration
Appellants argue that because Mr. Collier was not served with
the motion to dismiss or Mr. Sterling's motions for extensions of time, the
court, in dismissing these appeals, "Condone[dl a Deprivation of Due
Process." They argue that "[Oven the serious due process issues that are
implicated by respondents' failure to serve Mr. Collier with the motion to
dismiss, the panel should not have deprived appellants of their appeal
rights under these circumstances."
We reject appellants' argument that this court approved or
condoned any conduct that led to a deprivation of appellants'
constitutional rights. Appellants freely chose their appellate counsel, and
counsel was served with all documents in this matter, including this
court's May 24, 2013, order warning that the appeals were subject to
dismissal if appellants failed to file the opening brief and appendix by
June 4, and respondents' motion to dismiss, which counsel opposed on
appellants' behalf. In fact, both of appellants' attorneys of record were
served with the May 24 order and both were aware or should have been
aware of the briefing deadlines. Regardless, NRCP 5(b) provides that
when service "is required or permitted to be made upon a party
represented by an attorney, the service shall be made upon the attorney." 8
The rule refers to "an attorney" and "the attorney" in the singular, and
courts interpreting the analogous federal rule have rejected the argument
that FRCP 5 requires service on all counsel of record. See Nelson v. Heer,
8 NBAP 25(b) uses consistent language, requiring a party to serve
documents on other parties to the appeal and that "[s] ervice on a party
represented by counsel shall be made on the party's counsel."
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121 Nev. 832, 834, 122 P.3d 1252, 1253 (2005) (recognizing that "federal
decisions involving the Federal Rules of Civil Procedure provide
persuasive authority when this court examines its rules").
In particular, federal courts—recognizing that FRCP 5
requires service on all parties, not on each attorney appearing on behalf of
a party—have held that service on one attorney is effective service of a
pleading. See Daniel Ina Corp. v. Fischbach & Moore, Inc., 916 F.2d
1061, 1063 (5th Cir. 1990); Buchanan v. Sherrill, 51 F.3d 227, 228 (10th
Cir. 1995) (concluding that service of a summary judgment motion on one
of plaintiffs attorneys, but not on the other, was effective service under
FRCP 5); see also City of Lincoln v. MJM, Inc., 618 N.W.2d 710, 713 (Neb.
Ct. App. 2000) (citing Comstock v. Cole, 44 N.W. 487, 488 (Neb. 1890))
(concluding that "the law has long been that where there are two
attorneys of record, service upon one of them is adequate"). And in
Nevada, "[n]otice to an attorney is, in legal contemplation, notice to his
client." Lange v. Hickman, 92 Nev. 41, 43, 544 P.2d 1208, 1209 (1976).
Thus, even if only one of two or several attorneys is served with a
document, a party represented by the served attorney is deemed to have
received notice of the document. See id. Accordingly, appellants'
constitutional rights remained intact throughout the appellate process,
and respondents' failure to serve Mr. Collier with the motion to dismiss
does not provide a basis for en banc reconsideration, as Mr. Sterling was
served with that document and both Mr. Sterling and Mr. Collier were
served with this court's May 24 order denying the motion for an extension
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of time and warning that failure to file the brief could result in the
appeals' dismiss al. 9
CONCLUSION
While Nevada's jurisprudence expresses a policy preference for
merits-based resolution of appeals, and our appellate procedure rules
embody this policy, among others, litigants should not read the rules or
any of this court's decisions as endorsing noncompliance with court rules
and directives, as to do so risks forfeiting appellate relief. In these
appeals, appellants failed to timely file the opening brief and appendix
after having been warned that failure to do so could result in the appeals'
dismissals. Appellants actually had two attorneys who received copies of
this court's notices and orders regarding the briefing deadline, but they
nevertheless failed to comply with briefing deadlines and court rules and
orders. Although they assert that Hansen v. Universal Health Services of
Nevada, Inc., 112 Nev. 1245, 924 P.2d 1345 (1996), mandates
reconsideration and reinstatement of their appeals, Hansen was a fact-
specific decision to some extent, and an appeal may be dismissed for
failure to comply with court rules and orders and still be consistent with
the court's preference for deciding cases on their merits, as that policy
must be balanced against other policies, including the public's interest in
an expeditious appellate process, the parties' interests in bringing
litigation to a final and stable judgment, prejudice to the opposing side,
and judicial administration considerations, such as case and docket
9Although appellant's constitutional deprivation argument lacks
merit, we point out that attorneys who do not participate in the electronic
filing system should be served by traditional means. See NRAP 25(c);
NEFCR 9(d).
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management. As for declining to dismiss the appeal because the dilatory
conduct was occasioned by counsel, and not the client, that reasoning does
not comport with general agency principles, under which a client is bound
by its civil attorney's actions or inactions, and thus Hansen is overruled to
the extent that it holds otherwise. For the reasons stated above, all other
arguments advanced by appellants in support of their petition for en banc
reconsideration are either not legally sound or do not meet the standards
for en bane reconsideration under NRAP 40A. En bane reconsideration is
therefore denied.
r_e_e_t_tt , J.
Hardesty
We concur:
J.
Pickering
Parraguirre
, J.
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