Havens Vs. Kurian ( 2021 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
WARREN HAVENS, AN INDIVIDUAL, No. 83196
Appellant,
vs.
THOMAS K. KURIAN, AN
INDIVIDUAL; VEGAS WIRELESS, LLC,
A NEVADA LIMITED LIABILITY
COMPANY; AMERICAN WIRELESS,
LLC, A NEVADA LIMITED LIABILITY FILED
COMPANY; RF DATA, INC., A
DISSOLVED NEVADA CORPORATION, DEC 1 3 2021
AND ENVIRONMENTEL, LLC, A ELIZABEM A. BROWN
CLERK OF SUPREME COURT
DELAWARE LIMITED LIABILITY BY 6•Y
DEPUTY CLERK
COMPANY, F/K/A AMTS
CONSORTIUM, LLC,
Respondents.
ORDER DISMISSING APPEAL
This is an appeal from a special order after a final judgment in
a contract action. Respondent Environmentel, LLC, has filed a motion to
dismiss this appeal for lack of jurisdiction, arguing that appellant failed to
timely appeal. Appellant opposes the motion, and respondent
Environmental has filed a reply. Respondents Thomas K. Kurian, Vegas
Wireless LLC, American Wireless, LLC, and RF Data, Inc., have joined in
the motion and reply.
'Although Environmentel initially was not designated as a
respondent in this appeal, Susan L. Uecker, as receiver for Environmentel,
has made a notice of appearance. We direct the clerk of this court to add
Environmental as a respondent to this appeal with Samuel A. Schwartz and
Schwartz Law, PLLC, as its counsel of record. The clerk shall also amend
the caption to conform to the caption on this order.
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This court has limited jurisdiction and may only consider
appeals as authorized by statute or court rule. Brown v. MHC Stagecoach,
129 Nev. 343, 345, 301 P.3d 850, 851 (2013). "[T]he burden rests squarely
upon the shoulders of a party seeking to invoke our jurisdiction to establish,
to our satisfaction, that this court does in fact have jurisdiction." Moran v.
Bonneville Square Assocs., 117 Nev. 525, 527, 25 P.3d 898, 899 (2001).
An untimely notice of appeal does not vest jurisdiction in this
court. Rust v. Clark Cty. Sch. Dist., 103 Nev. 686, 688, 747 P.2d 1380, 1382
(1987). NRAP 4(a)(1) generally requires a party to file a notice of appeal
"no later than 30 days after the date that written notice of entry of the
judgment or order appealed from is served," but also recognizes that "RN an
applicable statute provides that a notice of appeal must be filed within a
different time period, the notice of appeal . . . must be filed within the time
period established by the statute."
Here, written notice of the district court's order was served on
appellant on December 23, 2020, at the latest.2 On or about January 5,
2021, before the deadline for filing his appeal had passed, appellant, as a
petitioning creditor, filed an involuntary bankruptcy petition in the United
States Bankruptcy Court for the District of Columbia against an alleged
debtor named "Skybridge—an entity that was not a party in the underlying
district court action. See In re Skybridge Spectrum Foundation, No. 21-
00005-ELG, 2021 WL 2326595, at *1 (D.C. Bankr. June 3, 2021). Skybridge
was the only alleged debtor that appellant named in his petition. See id.No summons was issued, requested, or served in the bankruptcy proceeding
on any of the parties involved in the underlying district court action. See
2The district court's December 23, 2020, order clarified an order that
was filed on December 14, 2020.
2
id. Thus, the bankruptcy court found, although appellant presented a
"moving target as to the complete identity of the [a]lleged [d]ebtor,"
Skybridge was the sole alleged debtor in the proceeding. See id. at *1, 3-4.
As the court further reasoned, an involuntarily petition may not be filed
against multiple debtors. See id. at *12-13.
On June 3, 2021, the bankruptcy court dismissed appellant's
petition. See id. at *16-17. On July 6, 2021, appellant filed his notice of
appeal from the district court's December 23, 2020, order in the underlying
action. Appellant argues that the deadline for him to appeal was tolled
during the pendency of his bankruptcy petition and that he timely appealed
following the dismissal of the petition. We disagree.
Under 11 U.S.C. § 362(a), "a petition filed under section 301,
302, or 303 of this title . . . operates as a stay, applicable to all entities, of—
(1) the commencement or continuation . . . of a judicial . . . action or
proceeding against the debtor." 11 U.S.C. § 108(c), in turn, provides that
when state law fixes a period of time for continuing a civil action against a
debtor, and that period of time has not expired when the debtor files his or
her bankruptcy petition, the time for resuming such an action expires at the
later of the end of the period set by law or "30 days after notice of the
termination or expiration of the stay."
As we explained in Edwards v. Ghandour, however, "the tolling
effect of the automatic stay applies only to the particular defendant who is
engaged in the bankruptcy proceedings, since the automatic stay applies
only to actions against the debtor defendant, not nondebtor codefendants.."
123 Nev. 105, 108, 159 P.3d 1086, 1088 (2007), abrogated on other grounds
by Five Star Cap. Corp. v. Ruby, 124 Nev. 1048, 194 P.3d 709 (2008). Stated
another way, the stay "pertains only to actions against the debtor
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defendant." Id. at 113 & n.10, 159 P.3d at 1091 & n.10 (citing Patton v.
Bearden, 8 F.3d 343, 348-49 (6th Cir. 1993) (holding that a partnership's
bankruptcy did not stay action against nondebtor partners); Maritime Elec.
Co., Inc. v. United Jersey Bank, 959 F.2d 1194, 1204-05 (3d Cir. 1992)
(stating that automatic stay is not available to nondebtor codefendants,
even if they share a similar legal or factual nexus with the debtor); Credit
Alliance Corp. v. Williams, 851 F.2d 119, 121-22 (4th Cir. 1988) (stating
that automatic stay did not apply to action against nondebtor guarantor of
debtor's obligation); Ingersoll-Rand Financial Corp. v. Miller Min. Co., 817
F.2d 1424, 1427 (9th Cir. 1987) (holding that while debtor's appeal was
stayed, nondebtor guarantor's appeal was not); Teachers Ins. & Annuity
Ass'n of America v. Butler, 803 F.2d 61, 65 (2d Cir.1986) (noting that the
automatic stay does not apply to nondebtor codefendants); Otoe County Nat.
Bank v. W & P Trucking, Inc., 754 F.2d 881, 883 (10th Cir. 1985) (same);
Wedgeworth v. Fibreboard Corp., 706 F.2d 541, 544 (5th Cir. 1983) (same);
in re Kmart Corp., 285 B.R. 679, 688-89 (Bankr. N.D. 111. 2002) (noting that
the automatic stay, by its terms, applies only to the debtor, not to joint
tortfeasors who may be independently liable for third-party claims)). In
short, "the automatic stay in no way impedee an action against nondebtors.
See id. at 113, 159 P.3d at 1091-92.
Here, the parties in the underlying district court action were
not debtor defendants in appellant's bankruptcy petition. Rather, only
Skybridge, a third-party to the underlying action, was the debtor defendant
in the bankruptcy proceeding. Although appellant has suggested that some
of the parties in the underlying district court action (or entities affiliated
with such parties) were part of an alleged joint venture with Skybridge, this
is insufficient to trigger the automatic stay as to such parties. See Edwards,
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123 Nev. at 113 & n.10, 159 P.3d at 1091 & n.10. Thus, appellant was in no
way impeded from timely filing his notice of appeal in the underlying action.
As appellant failed to timely appeal, we conclude that this court lacks
jurisdiction and, therefore, we
ORDER this appeal DISMISSED.
Par aguirre
Artelisa,0 J.
Stiglich
J.
Silver
cc: Hon. Nadia Kra11, District Judge
Warren Havens
E. Brent Bryson, P.C.
Schwartz Law, PLLC
Eighth District Court Clerk
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