Gubler v. Ellis, Bandt, Birkin, Kollins & Wong, Pllc ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
TERESA GUBLER AND MARGARET R. No. 84926
LEAVITT, INDIVIDUALLY AND AS
CO-SPECIAL ADMINISTRATORS OF
THE ESTATE OF MARIA HEATON,
DECEASED, FtiLE
Appellants,
vs. AUG 0 2022
ELLIS, BAN:DT, BIRKIIN, KOLLINS & H A. GROWN
WONG-, PLLC, A NEVADA 'DOMESTIC
DEPUTY CLERK
PROFESSIONAL LIMITED LIABILITY
COMPANY, D/B/A DESERT
RADIOLOGY; SHELIN AGRAWAL &
HYER, PLLC, A NEVADA DOMESTIC
PROFESSIONAL LIMITED LIABILITY
COMPANY, D/B/A DESERT
RADIOLOGY; AND FARHAD SANl,
M.D.,
Respilndents.
ORDER DISMISSING APPEAL
This is an appeal f'rom a district court order granting a motion.
to dismiss. 'Eighth judicial District Court, Clark County; Joseph Hardy,
Jr., judge.
This appeal was docketed on June 27, 2022. The notice of
appeal was filed by counsel on behalf of Maria Heaton, and the original
caption of this appeal identified Maria Heaton, an :individual, as appellant.
The case appeal statement and docketing statement were filed On July 1.9,
2022. Because these documents indicated that Maria Heaton was deceased
and Teresa Gubler and Margaret R. Leavitt were proceeding with this
appeal. on behalf of Maria. Heaton's estate, on July 20, 2022, this court sua
sponte modified th.e caption consistent with the caption on this ord.er.
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Respondents objected to the modification of the caption and
filed a joint motion to dismiss this appeal. The district court dismissed the
underlying matter following Maria Heaton's death because no proper party
had been substituted pursuant to NRCP 25(a)(1). Respondents asserted
that because neither Teresa Gubler nor Margaret R. Leavitt were named as
parties of record in the trial court below or made an appearance in the
underlying matter, neither of them had standing to bring or maintain this
appeal.
On August 8, 2022, this court issued an order stating that
Teresa Gubler and Margaret R. Leavitt, as co-special administrators of
Maria Heaton's estate, could pursue this appeal on behalf of the estate of
Maria Heaton. See NRAP 43(a)(1), (3). That order further noted that the
substitution of them in the place of Maria Heaton, an individual, in this
appeal and the modification of this court's caption was premature because
counsel had not filed a motion to substitute Teresa Gubler and Margaret R.
Leavitt in their capacity as co-special administrators of the estate of Maria
Eleaton as appellants in this appeal. See id. This court further noted that
unless Teresa Gubler and Margaret R. Leavitt were properly substituted in
this appeal, this appeal would be subject to dismissal. See generally Brass
v. State, 129 Nev. 527, 528, 306 P.3d 393, 394 (2013) (holding that "if a party
dies pending review of his appeal, the appeal will be dismissed unless the
decedent's personal representative is substituted in as a party to the
appeal"); Walker v. Burkharn, 68 Nev. 250, 253-54, 229 P.2d 158, 160 (1951)
(upon the death of a party, an action may not proceed until a personal
representative is substituted for the decedent). Therefore, this court
deferred ruling on the motion to dismiss and directed counsel for appellant
to comply with NRAP 43(a)(1) within 7 days. Counsel for appellant was
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cautioned that failure to comply would result in the dismissal of this appeal.
To date, counsel for appellant has not complied. Accordingly, we grant
respondents' joint motion to dismiss this appeal and we
ORDER this appeal DISMISSED.
---#440;,424C.AX
HaTc1 Stiglich
Hon. Joseph Hardy, Jr., District Judge
Ara H. Shirinian, Settlement Judge
Law Office of Travis E. Shetler, PC
Messner Reeves LLP
McBride Hall
Eighth District Court Clerk
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