In Re: Lenk Family Tr. ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF: THE LENK No. 85457
FAMILY TRUST.
ROBERT R. PILKINGTON; AND
DENISE L. PILKINGTON,
F" d
Appellants, NOV 0 2022
vs.
THE LENK FAMILY TRUST; HUNTER
LIGGETT; JILL RENE STYNDA;
JANET E. LENK COHEN; CARIN
LENK SLOAN; KRISTIN NOEL LENK
PFEIFER; AND GINGER STUMNE,
NYE COUNTY PUBLIC
ADMINISTRATOR,
Respondents.
ORDER DISMISSING APPEAL
This is a pro se appeal from district court orders in a probate
case dated August 27, 2021;1 September 27, 2021; and August 2, 2022. Fifth
Judicial District Court, Nye County; Kimberly A. Wanker, Judge.
The notice of appeal was filed in the district court on September
30, 2022. Appellants thereafter filed an emergency motion for stay in this
court, and respondents opposed the stay motion and countermoved to
dismiss the appeal for lack of jurisdiction. Respondents contend, among
other things, that the notice of appeal was untimely filed more than 30 days
1No order was entered on August 27, 2021, but the district court
clerk's case appeal statement assumes and appellants' docketing statement
confirms that the notice of appeal contains a typo, such that the appealed
order is actually dated August 26, 2021.
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from service of notice of entry of each appealed order.2 Appellants have filed
a reply/opposition to the countermotion, and respondents have filed a reply
in support of their countermotion.
Appeals from orders entered in probate and trust cases are
generally governed by NRS 155.190. See also NRS 164.005. That statute
allows for immediate appeal, within 30 days from service of notice of entry,
from orders instructing personal representatives and trustees and from
orders that grant an order for conveyance directing that persons in
possession of estate property transfer or deliver it to those entitled thereto.
NRS 155.190(1)(h), (p); see also NRS 164.033 (governing conveyance orders
in trust cases and allowing an appeal therefrom within 30 days of notice of
entry). Failure to timely appeal under NRS 155.190 precludes any
challenge to an order listed therein in an appeal from a later-entered
judgment. In re Estate of Herrmann, 100 Nev. 1, 21, 677 P.2d 594, 607
(1984) ("[T]his court has specifically held that unless appeal is taken within
30 days, an order of the kinds mentioned in NRS 155.190 is not thereafter
subject to attack.").
Here, the August 2021 order appears to have been appealable
under NRS 155.190(1)(h) and (p) because it directed the public
2 Respondents also contend that appellant Denise Pilkington lacks
standing to challenge the 2021 orders, as she was not a party to the action
when those orders were entered. In light of this order, we need not address
this contention. Respondents further assert that appellants waived their
right to appeal in the parties' settlement agreement below and are not
aggrieved by the court's order confirming that settlement. From what is
currently before this court, it appears that appellants contest, in part, the
district court's failure to fully resolve their claims to, and to unfreeze, funds
in two Wells Fargo bank accounts that the court had previously found
contained at least some funds belonging to the estate, and while we do not
now decide the matter, it is not clear that the settlement agreement
precludes appellants from seeking relief as to this issue.
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administrator/trustee to take various actions and also directed appellant
Robert Pilkington to return estate and trust property. Notice of entry of the
August 2021 order was served on August 26, 2021. The September 2021
order further directed Robert Pilkington to return estate and trust property
and thus likewise appears appealable under NRS 155.190(1)(p); notice of
the September 2021 order's entry was served on September 27, 2021.
Finally, the August 2022 order, notice of entry of which was served on
August 4, 2022, confirmed a settlement agreement among the parties
acknowledging that certain trusts and a pour-over will were invalid,
providing that appellants had no authority to transfer estate or trust assets,
directing the court-appointed fiduciary to transfer such assets to the estate
for further administration, and closing the case upon such transfer. That
order appears to fall under NRS 155.190(1)(i); see also NRS 155.190(1)(b)
(refusing to admit a will to probate). The notice of appeal was filed more
than 30 days after notice of entry of each appealed order was served and is
thus untimely. Moreover, to the extent that appellants assert jurisdiction
over the orders pursuant to NRAP 3A(b)(1) (final judgment) and (5) (orders
refusing to dissolve an attachment), the notice of appeal is likewise
untimely. NRAP 4(a)(1) (providing that notices of appeal must be filed
within 30 days from when notice of the appealed order's entry is served).
In their docketing statement, appellants suggest that the
appeal is timely under NRAP 4(a)(6) (premature notice of appeal) because
the district court denied an NRCP 60(b) motion on October 12, 2022.3 But
the NRCP 60(b) motion was filed on February 18, 2022, which was not
within the tirneframe in which tolling motions must be filed, and thus the
motion could not toll the appeal period. NRAP 4(a)(4); see NRCP 50(b);
3This court has not received any notice of appeal from the October 12
order.
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NRCP 52(b); NRCP 59(b), (e). And in their response to the countermotion
to dismiss, appellants assert that the appeal is timely because the appealed
orders are void. However, allegations that an order is void does not waive
the time period to appeal, which is jurisdictional. Zugel v. Miller, 99 Nev.
100, 101, 659 P.2d 296, 297 (1983) ("Filing a timely notice of appeal is
jurisdictional and an untimely appeal may not be considered."); State ex rel.
Smith v. Sixth Judicial Dist. Court, 63 Nev. 249, 256, 167 P.2d 648, 651
(1946) (distinguishing between direct attacks, like an appeal in an original
action to have an order vacated or reversed, and collateral attacks through
other proceedings), overruled on other grounds by Poirier v. Bd. of Dental
Exam'rs, 81 Nev. 384, 404 P.2d 1 (1965). Accordingly, as we lack
jurisdiction, we grant the countermotion and
ORDER this appeal DISMISSED.4
• 17, —67.
Hardesty
Stiglich Herndon
41n light of this order, appellants' emergency motion for stay is denied
as moot. Nevertheless, we note that appellants' failure to first seek relief
in the district court per NRAP 8(a)(1) would preclude relief. See TRP Fund
VI, LLC v. PHH Mortg. Corp., 138 Nev. Adv. Op. 21, 506 P.3d 1056, 1058
(2022) (explaining that a belief that the district court will not grant a stay
motion does not excuse the requirement that such relief first be sought in
the district court, as lilmpracticable' requires the movant to show that it
was 'not capable' of first seeking relief in the district court or that such an
act could not be done").
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cc: Hon. Kimberly A. Wanker, District Judge
Denise L. Pilkington
Robert R. Pilkington
Anthony L. Barney, Ltd.
Roland Law Firm
Law Office of Sean M. Tanko, Ltd.
Nye County Clerk
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