Willard v. Berry-Hinckley Indus. ( 2023 )

Supreme Court
OF
NEVADA
(0) 1947A oR
139 Nev., Advance Opinion 5a
IN THE SUPREME COURT OF THE STATE OF NEVADA
LARRY J. WILLARD, INDIVIDUALLY
AND AS TRUSTEE OF THE LARRY
JAMES WILLARD TRUST FUND; AND
OVERLAND DEVELOPMENT
CORPORATION, A CALIFORNIA
CORPORATION,
Appellants,
VS.
BERRY-HINCKLEY INDUSTRIES, A
NEVADA CORPORATION; JERRY
HERBST, AN INDIVIDUAL; AND
TIMOTHY P. HERBST, AS SPECIAL
ADMINISTRATOR OF THE ESTATE
OF JERRY HERBST, DECEASED,
Respondents.
LARRY J. WILLARD, INDIVIDUALLY
AND AS TRUSTEE OF THE LARRY
JAMES WILLARD TRUST FUND; AND
OVERLAND DEVELOPMENT
CORPORATION, A CALIFORNIA
CORPORATION,
Appellants,
vs.
BERRY-HINCKLEY INDUSTRIES, A
NEVADA CORPORATION; JERRY
HERBST, AN INDIVIDUAL; AND
TIMOTHY P. HERBST, AS SPECIAL
ADMINISTRATOR OF THE ESTATE
OF JERRY HERBST, DECEASED,
Respondents.
CLERI/OF BUPERYE COURT
BY
No. 83640
FILED
NOV 36 2023
ELIZABATH A. BRO!
[EF DEPUTY CLERK
No. 84848
23- 39Fle
Consolidated appeals from district court orders denying NRCP
60(b) relief. Second Judicial District Court, Washoe County; Lynne K.
Simons, Judge.
Affirmed.
Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno; Robertson,
Johnson, Miller & Williamson and Richard D. Williamson and Jonathan J.
Tew, Reno,
for Appellants.
Dickinson Wright, PLLC, and John P. Desmond, Brian R. Irvine, and Anjali
D. Webster, Reno,
for Respondents.
BEFORE THE SUPREME COURT, EN BANC.
OPINION
By the Court, STIGLICH, C.J.:
In this opinion, we consider whether the district court abused
its discretion in denying appellants relief under NRCP 60(b)(1), NRCP
60(b)(5), and NRCP 60(b)(6). We have not previously resolved whether an
order of dismissal applies “prospectively” for purposes of NRCP 60(b)(5) and
today conclude that it does not.
The underlying proceedings commenced with a complaint
sounding in breach of contract. After appellants generally failed to
prosecute their case, the district court granted respondents’ motion for
sanctions, dismissing the case with prejudice. Appellants moved for NRCP
60(b)(1) relief, which the district court denied. In a first appeal, this court
Supreme Court
OF
NEVADA
a
(0) 19474 eno
reversed and remanded for the district court to make findings as to the
factors set forth in Yochum v. Davis, 98 Nev. 484, 653 P.2d 1215 (2018).
Willard v. Berry-Hinckley Indus., 136 Nev. 467, 471, 469 P.3d 176, 180
(2020). On remand, the district court again denied the NRCP 60(b)(1)
motion, now providing detailed findings as to the Yochum factors. The
district court also denied a subsequent motion for relief under NRCP
60(b)(5) or NRCP 60(b)(6). Appellants appealed both denial orders, and we
have consolidated the appeals.
As to the denial of appellants’ NRCP 60(b)(1) motion, we
conclude that the district court’s decision is supported by substantial
evidence and therefore does not constitute an abuse of discretion. As to
NRCP 60(b)(5), we follow persuasive federal authority and clarify that
orders of dismissal are not “prospective” within the meaning of the rule.
Therefore, NRCP 60(b)(5) was not an appropriate vehicle by which
appellants could obtain relief. Finally, we conclude that the district court
did not abuse its discretion in denying relief under NRCP 60(b)(6), given
that appellants sought relief on a basis that was cognizable under NRCP
60(b)(1), which is mutually exclusive from NRCP 60(b)(6) relief.
Accordingly, we affirm the district court’s orders denying NRCP 60(b) relief.
FACTS AND PROCEDURAL HISTORY
Appellants Larry J. Willard and the Overland Development
Corporation (collectively, Willard) sued respondents . Berry-Hinckley
Industries and Jerry Herbst! (collectively, Berry-Hinckley) on claims
sounding in breach of contract. After three years of Willard failing to
comply with discovery requirements and various court orders and otherwise
1Timothy P. Herbst is participating in this matter as special
administrator of the estate of Jerry Herbst, who passed away in 2018.
Supreme Court
OF
NEVADA
3
(0) 197A Bm
failing to prosecute the case, Berry-Hinckley moved for sanctions, seeking
dismissal with prejudice. Willard did not oppose, and the district court
granted the motion. Willard did not appeal the sanctions order.
Willard moved to set aside the sanctions order under NRCP
60(b)(1) based on excusable neglect. He argued that mental health issues
had caused his lead attorney, Brian Moquin, to constructively abandon the
case, ultimately resulting in the dismissal of the action. The district court
denied Willard’s motion without addressing the factors set forth in Yochum,
and Willard appealed.
In resolving the appeal, we held that when determining
whether NRCP 60(b)(1) relief is warranted, the district court must address
the Yochum factors regardless of whether the movant seeks relief from an
order or a judgment. Willard, 136 Nev. at 470, 469 P.3d at 179. We
concluded that the district court abused its discretion by failing to set forth
findings as to the Yochum factors, reversed the district court’s order denying
Willard’s NRCP 60(b)(1) motion, and remanded the case for further
proceedings. Jd. at 471, 469 P.3d at 180.
Berry-Hinckley moved for en banc reconsideration. This court
denied reconsideration but clarified that the parties were precluded from
presenting new evidence or arguments on remand and that the district
court’s consideration of the Yochum factors was limited to the record
currently before the court.
On remand, the district court held a status hearing and
requested proposed orders from the parties. The district court subsequently
issued an order denying Willard’s NRCP 60(b)(1) motion with consideration
of the Yochum factors. Willard appealed the order denying the NRCP
60(b)(1) motion.
Supreme Court
OF
NEVADA
(Oy 147A QB
While that appeal was pending, Willard moved for relief under
NRCP 60(b)(5) or (6). Willard explained that attorney Moquin had admitted
he violated the rules of professional conduct with regard to Willard’s case in
a guilty plea entered pursuant to attorney discipline proceedings. In re
Discipline of Moquin, No. 78946, 2019 WL 5390401 (Nev. Oct. 21, 2019)
(Order Approving Conditional Guilty Plea Agreement and Enjoining
Attorney From Practicing Law in Nevada). Willard argued that Moquin’s
admissions constituted a change in conditions that made application of the
sanctions order prospectively no longer equitable and thus that relief was
warranted under NRCP 60(b)(5). Willard also argued that Moquin’s
admissions constituted new evidence of the mental illness that allegedly
caused Moquin’s failures during the district court proceedings and that
relief was warranted on that basis. The district court denied Willard’s
motion. The court ruled that NRCP 60(b)(5) relief was not warranted
because the guilty plea did not constitute a significant change in factual
conditions and that NRCP 60(b)(6) relief was not available because
Willard’s allegations sounded in excusable neglect under NRCP 60(b)(1). It
alternatively ruled that Willard did not show extraordinary circumstances
to justify reopening the case. Willard appealed the district court order
denying the motion seeking relief pursuant to NRCP 60(b)(5) and (6). We
have consolidated Willard’s appeals.
DISCUSSION
Standard of review
We review a district court’s decision “to grant or deny a motion
to set aside a judgment under NRCP 60(b)” for abuse of discretion. Cook v.
Cook, 112 Nev. 179, 181-82, 912 P.2d 264, 265 (1996). An abuse of discretion
occurs when the district court’s decision is not supported by substantial
evidence, which is evidence that a reasonable mind might accept as
SupREME Court
OF
Nevapa
(0) 1947A eGo
oO
adequate to support a conclusion, see Otak Nev., LLC vu. Eighth Judicial
Dist. Court, 129 Nev. 799, 805, 312 P.3d 491, 496 (2013). or when the district
court disregards established legal principles, Willard, 136 Nev. at 469, 469
P.3d at 179.
The district court did not abuse its discretion in denying relief under NRCP
60(b)(1)
Willard argues that the district court misapplied the Yochum
factors, as each factor favored granting the NRCP 60(b)(1) motion. Berry-
Hinckley counters that the district court correctly considered and applied
each of the Vookunn factors.
Under NRCP 60(b)(1), a district court “may ecliewe a
party ...from a final judgment, order, or proceeding” on grounds of
“mistake, inadvertence, surprise, or excusable neglect.” An NRCP 60(b)(1)
movant bears the burden of establishing, by a preponderance of ‘the
evidence, that such grounds for relief exist. See Willard, 136 Nev. at 470,
469 P.3d at 179-80. To determine whether such grounds for relief exist, the
district court must consider the following four factors, set forth by this court
in Yochum: “(1) a prompt application to remove the judgment; (2) the
absence of an intent to delay the proceedings; (3) a lack of knowledge of
procedural requirements; and (4) good faith.” Id. at 470, 469 P.3d at 179
(quoting Yochum, 98 Nev. at 486, 653 P.2d at 1216). The district court
“must issue express factual findings, preferably in writing, pursuant to each
Yochum factor.” Id. at 468, 469 P.3d at 178. And the district court must
consider Nevada’s policy of “decid[ing] cases on the merits whenever
feasible when evaluating an NRCP 60(b)(1) motion.” Jd. at 470, 469 P.3d at
179.
SupREME GourT
OF
NeEvaDA
(0) 197A @BBBow
While the district court found that Willard filed the NRCP
60(b)(1) motion promptly with respect to the first Yochum factor, it
concluded that the Yochum factors as a whole weighed against granting
relieg. We conclude that substantial evidence supports the district court’s
findings and that the district court did not abuse its discretion in denying
Willard NRCP 60(b)(1) relief.
We note that neither party contests the district court’s finding
on the first factor on appeal, As to the second Yochum factor, the district
court found, given Willard’s failures to comply with procedural obligations
and other conduct causing delay, intent to delay proceedings. The record
supports this finding. Willard’s initial disclosures did not provide a
computation of alleged damages, which was required by NRCP
16.1(a)(1)(A)(iv) and necessary to enable Berry-Hinckley to complete
discovery. Larry J. Willard personally appeared at least once at a hearing
at which this deficiency was addressed and thus-knew of this omission,
which contributed to the delay. Willard also failed to respond to
interrogatories, requiring Berry-Hinckley to move to compel, and failed to
oppose Berry-Hinckley’s motion for sanctions, even after the district court
urged him to respond. See Rodriguez v. Fiesta Palms, LLC, 134 Nev. 654,
658, 428 P.38d 255, 258 (2018) (“[Appellant] should have inferred the
consequences of not opposing the motion to dismiss, especially in light of the
court’s express warning to take action.”); see also Kahn v. Orme, 108 Nev.
510, 514, 835 P.2d 790, 793 (1992) (concluding that a party did not show an
absence of intent to delay proceedings where the party did not oppose a
motion for a default judgment, among other considerations), overruled on
other grounds by Epstein v. Epstein, 113 Nev. 1401, 950 P.2d 771 (1997), as
recognized in Rodriguez, 134 Nev. at 657, 428 P.3d at 258. Willard further
Supreme Count
OF
NEVADA
(0) (947A kB
failed to timely and properly disclose his expert witness. Willard's
noncompliance with discovery requirements and court orders required
extending trial and discovery deadlines numerous times. While Willard
argues that Moquin’s mental illness supported finding exuueaisls neglect,
Willard knew that Moquin was not responding to communications, and
many procedural deficiencies occurred before the sanctions order was
entered, but Willard took no measures to replace Moquin as counsel.: See
Kahn, 108 Nev. at 515, 835 P.2d at 793 (admonishing that the ‘Eeihire to
obtain new representation or otherwise act on his own behalf is inexcusable”
in reviewing appellant’s knowledge of procedural requirements). Willard
has not shown that the district court’s findings as to this factor were not
supported by substantial evidence. See Rodriguez, 134 Nev. at 658, 428
P.3d at 258 (inferring an intent to delay proceedings from a party’s earlier
conduct).
As to the third Yochum factor, the district court found that the
record showed Willard knew the relevant procedural requirements. A party
is held to know the procedural requirements where the facts establish either
knowledge or legal notice, the party should have inferred the consequences
of failing to act, or the party’s attorney acquired legal notice or knowledge.
See Stoecklien v. Johnson Elec., Inc., 109 Nev. 268, 273, 849 P.2d 305, 308
(1993). As noted, Willard personally attended at least cne hearing where
the court discussed the discovery violations and ordered that an updated
NRCP 16.1 damages disclosure be filed by a certain date. At the hearing on
Willard’s NRCP 60(b)(1) motion, Willard’s counsel acknowledged that
“Willard [had] been here and [had] been involved.” He further explained
that “candidly, [Willard did] know that things needed to be filed” and that
Willard had been “an active participant” in the case. Willard also texted
Supreme Court
OF
NEVADA
(0) 1947A 26
attorney Moquin about deadlines. The court also found that Willard was
represented by two attorneys, who participated in multiple communications
with the court related to procedural requirements, and Willard does not
argue that his attorneys were unaware of procedural requirements.
Willard’s contention that his reliance on Moquin establishes that he was
unaware of his procedural obligations is belied by the record. Willard has
not shown the district court’s findings as to this factor were not supported
by substantial evidence.
As to the fourth Yochum factor, the district court found that
Willard failed to show that he acted in good faith given the evidence
demonstrating an intent to delay the proceedings and which supported
issuance of the sanctions order. “Good faith is an intangible and abstract
quality with no technical meaning or definition and encompasses, among
other things, an honest belief, the absence of malice, and the absence of
design to defraud.” Stoecklien, 109 Nev. at 273, 849 P.2d at 309. The court
may look to a party’s conduct in the proceedings in ascertaining good faith.
See id. (observing that, while the underlying action alleged fraud, the record
did not show that appellant perpetrated a fraud in the court proceedings).
The district court noted its previous findings that Willard knew the relevant
procedural requirements and intended to delay the proceedings and that
multiple willful violations had justified the issuance of the sanctions order.
The court also found that after three years of failing to comply with the rules
of civil procedure, and with only four weeks remaining for discovery, Willard
moved for summary judgment, alleging new bases for damages. And it
found that the new damages request was based on information that Willard
had possessed throughout the proceedings and that Willard’s conduct was
intentional, strategic, and in bad faith. The court likewise found that the
Supreme Court
OF
NEVADA
(0) 19474 E>
failure to disclose NRCP 16.1 damages was done in bad faith. Although
Willard argues for good faith on the premise that Mogquin’s personal
hardships were responsible for the procedural failings, the record shows
that Willard continued to retain Moquin after becoming aware of discovery
and disclosure violations.2 The initial disclosure regarding damages was
deficient, Willard knew of the deficiency by February 2015 at the latest, and
Willard retained Moquin through 2017. Willard has not shown that the
district court’s findings as to this factor were not supported by substantial
evidence.
Finally, the district court acknowledged Nevada’s policy of
adjudicating cases on the merits but found that Willard had frustrated that
policy by failing to provide damages calculations or expert disclosures and
thus could not “hide behind” it. This policy “is not absolute and must be
balanced against countervailing policy considerations, - including the
public’s interest in expeditious resolution of [cases], 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.” Huckabay Props., Inc. v. NC Auto
Parts, LLC, 130 Nev. 196, 198; 322 P.3d 429, 430-31 (2014). The court found
“Willard argues that the district court improperly excluded certain
evidence of Moquin’s mental illness. Having reviewed the arguments in this
regard, we conclude that Willard has not shown that the district court
abused its discretion. See frei ex re!. Litem v. Goodsell, 129 Nev. 403, 408-
09, 305 P.3d 70, 73 (2013) (reviewing the district court’s decision to exclude
evidence for abuse of discretion). Even assuming that the district court had
improperly excluded this evidence, Willard has not shown relief would be
warranted given his continued retention of Moquin after deficiencies
became apparent. See Wyeth v. Rewatt, 126 Nev. 446, 465, 244 P.3d 765,
778 (2010) (‘When an error is harmless, reversal is not warranted.”).
Supreme Court
OF
NeEvaDA
10
(O) 1947A ae
Ss C
o cy
ro
that Berry-Hinckley served multivle rounds of discovery requests but
Willard, by failing to provide threshold information necessary to resolve the
claims alleged, impeded a merits resolution. Substantial evidence supports
this finding, and Willard has not shown that the district court abused its
discretion in concluding Nevada’s policy in favor of adjudicating cases on
the merits did not warrant granting the NRCP 60(b)(1) motion here.? See
Lentz v. Boles, 84 Nev. 197, 200, 438 P.2d 254, 256-57 (1968) (“Litigants and
their counsel may not properly be allowed to disregard process or procedural
rules with impunity.”). We therefore affirm the district court’s order
denying Willard NRCP 60(b)(1) relief.4
3Willard invokes Passarelli v. J-Mar Development, Inc., 102 Nev. 283,
720 P.2d 1221 (1986), to argue that Moquin abandoned his representation
and that the matter should be resolved on the merits. However, Passorelli
presents significantly different facts. In Passarelli, the attorney ceased.
performing job functions due to substance abuse, and. the record did not
show that Passarelli had knowledge of his attorney’s abandonment until the
damage had been done. 102 Nev. at 285-86, 720 P.2d at 1223. Here, Moquin
appeared at status hearings, participated in depositions, filed motions and
other papers, and participated in oral arguments before abandonment
occurred in December 2017. Numerous instances of failure to comply with
discovery requirements and court orders preceded December 2917, and thus
allowing the dismissal to stand did not unjustly frustrate the policy favoring
disposition on the merits.
‘Willard also argues the district court violated this court’s mandate
on remand when the district court purportedly allowed Berry-Hinckley to
raise new arguments through a proposed order that applied the Yochum
factors because its opposition to Willard’s NRCP 60(b)(1) motion did not
analyze those factors. We limited the remand to considering the Yochum
factors based on the record then before the district court without any new
evidence or arguments. Willard v. Berry-Hinckley Indus., Docket No. 77780
(February 23, 2021) (Order Denying En Banc Reconsideration). Berry-
Hinckley’s proposed order applied the Yochum factors based on the record
already before the court and did not introduce new arguments. Had the
Supreme Court
OF
NEVADA
(O) 19474 GES
cy
ry
oy
11
Orders of dismissal are not “prospective” and therefore do not fail within the
purview of NRCP 60(b)(4) relief
Willard argues that NRCP 60(b)(5) provides a ground for relief
based on “significant” changes in both legal and factual circumstances.
Willard explains that Moquin admitted to violating the rules of professional
conduct during Willard’s case by way of a conditional guilty plea in attorney
discipline proceedings. Willard argues that therefore it is no longer
equitable to maintain the sanctions order of dismissal. Berry-Hinckley
counters that orders of dismissal are not “prospective” and thus cannot be
set aside under NRCP 60(b)(5).
NRCP 60(b)(5) permits a district court to relieve a party from
an order if “applying [the order] prospectively is no longer equitable.” This
court has yet to address the meaning of “prospective” under NRCP 60(b)(5),
but “[w]here the Nevada Rules of Civil Procedure parallel the Federal Rules
of Civil Procedure, rulings of federal courts interpreting and applying the
federal rules are persuasive authority for this court in applying the Nevada
Rules.” Nutton v. Sunset Station, Inc., 131 Nev. 279, 285 n.2, 357 P.3d 966,
970 n.2 (Ct. App. 2015).
The .federal circuit courts of appeal agree that orders of
dismissal do not apply prospectively within the meaning of the federal
counterpart to NRCP 60(b)(5). See Tapper v. Hearn, 833 F.3d 166, 171 (2d
Cir. 2016) (collecting circuit court cases universally holding “that a
judgment or order of dismissal! or-a judgment or order denying a plaintiff
injunctive relief... does not apply prospectively within the meaning of Rule
60(b)(5)”). To that end, the Second Circuit Court of Appeals held that “a
proposed order failed to address Yochum, it would have violated our
mandate. Willard has not shown that the district court erred in this regard.
SupREemME Court
OF
NEvaDA
12
(0) 19474 cE
final judgment or order has prospective application for purposes of Rule
60(b)(5) only where it is executory or involves the supervision of changing
conduct or conditions.” Jd. at 170-71 (internal quotation marks eraittad’:
We agree with the interpretation put forward by the federal
courts. As the D.C. Circuit has explained, “[vlirtually every court order
causes at least some reverberations into the future, and has, in that literal
sense, some prospective effect.” Twelve John Does v. District of Columbia,
841 F.2d 1133, 1138 (D.C. Cir. 1988). “That a court’s action has continuing
consequences, however, does not necessarily mean that it has ‘prospective
application’ for the purposes of Rule 60(b)(5).” Id. Accordingly, we clarify
that orders of dismissal are not prospective within the meaning of NRCP
60(b)(5). See id. at 1139 (“[I]t is difficult to see how an unconditional
dismissal could ever have prospective application within the meaning of
Rule 60(b)(5).”).
Here, the sanctions order is not prospective within the meaning
of NRCP 60(b)(5) because it dismissed Willard’s case with prejudice. NRCP
60(b)(5) was therefore not an appropriate vehicle by which Willard could
seek relief. We acknowledge that the district court did not rely on this
analysis in denying Willard’s 60(b)(5) motion, but we affirm the district
court’s order denying NRCP 60(b)(5) relief because it nevertheless reached
the correct outcome. See Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126
Nev. 592, 599, 245 P.3d 1198, 1202 (2010) (affirming the district court where
it reached the correct result, albeit for the wrong reason).
SuPReME Court
OF
NEVADA
(0) 19870 <BR
The district couri did not abuse its discretion in denying Willard’s request
for relief under NRCP 60(b)(6)
Willard argues the district court abused its discretion in
denying relief under NRCP 60(b)(6). Willard asserts the NRCP 60(b)(6)
motion is based on attorney Moquin’s willful misconduct rather than on _
excusable neglect. Berry-Hinckley counters that Willard’s motion falls
within the scope of NRCP 60(b)(1) and therefore Willard cannot seek NRCP
60(b)(6) relief.®
Under NRCP 60(b)(6), a district court may relieve a party from
an order for “any other reason that justifies relief.”. NRCP 60(b)(6) relief,
however, is available only under extraordinary circumstances. Vargas v.
J Morales Inc., 138 Nev., Adv. Op. 38, 510 P.3d 777, 781 (2022). And relief
may not be sought under NRCP 60(b)(6) where it would have been available
under the provisions of NRCP 60(b)(1)-(5). Jd.
5Berry-Hinckley also argues that Willard’s motion was not filed
within a reasonable time, as it was filed more than two years after the
conditional guilty plea on which it was predicated. A motion for NRCP
60(b)(6) relief must be “made within a reasonable time.” NRCP 60(c)(1).
The reasonableness of the timing of an NRCP 60(b)(6) motion depends on
the facts of the case and may include, but is not limited to, considerations
such as “whether the parties have been prejudiced by the delay and whether
a good reason has been presented for failing to take action sooner.” See
United States v. Boch Oldsmobile, Inc., 909 F.2d 657, 660-61 (1st Cir. 1990)
(interpreting the federal analog to NRCP 60(b)(6)). Given that the district
court.denied the motion on a different basis and did not make findings as to
whether the NRCP 60(b)(6) motion was filed within a reasonable time, we
decline to address this matter for the first time on appeal. See Wynn
Resorts, Lid. v. Eighth Judicial Dist. Court, 133 Nev. 369, 386, 359 P.3d
334, 349 (2017) (declining to consider an issue that would require the
appellate court to engage in factfinding, which is more properly the province
of district courts).
SuPREME COURT
OF
Nevapa
14
(0) 19470 ei
oy " Fi
The district court found that Willard’s motion was based on the
allegation of Moquin’s mental illness and its effect on Moquin’s
representation of Willard. It therefore concluded that NRCP 60(b)(6) relief
was precluded because the motion was based on another ground delineated
in NRCP 60(b), namely, NRCP’s 60(b)(1)’s “excusable neglect.” The record
supports the district court’s ruling. Willard argued that Moquin’s
conditional guilty plea was new evidence of the mental illness that
purportedly resulted in Moquin’s failures throughout the district court
proceedings. In other words, Willard argued in his NRCP 60(b)(6) motion
that this additional evidence reinforced his argument for excusable neglect.
As NRCP 60(b)(1) and NRCP 60(b)(6) are mutually exclusive, NRCP
60(b)(6) relief was not available for this repackaged claim of excusable
neglect. Willard therefore has not shown that the district court abused its
discretion in denying NRCP 60(b)(6) relief.®
CONCLUSION
The district court did not abuse its discretion in denying
Willard’s requests for relief under NRCP 60(b). The district court’s findings
‘Willard presents a number of arguments challenging the district
court’s sanctions order. Willard summarily argues that “[b]ecause the
district court denied relief on remand, [Willard’s] additional contentions are
again ripe for this court’s consideration in this appeal.” We disagree.
Willard voluntarily dismissed his challenge to the district court’s sanctions
order in his previous appeal, and he cannot revive those claims now.
Willard v. Berry-Hinckley Indus., 1386 Nev. 467, 471 n.7, 469 P.3d 176, 180
n.7 (2020). Furthermore, Willard failed to appeal the final judgment 1n this
case, and the sanctions order is not reviewable in this appeal from the
orders denying post-judgment relief. Holiday Inn Downtown v. Barnett, 103
Nev. 60, 63, 732 P.2d 1376, 1378-79 (1987).
Supreme Court
OF
NevaDa
15
(QO) 19474 cai f
as to NRCP 60(b)(1) and NRCP 60(b)(6) are supported by substantial
evidence. As to NRCP 60(b)(5), we hold that orders of dismissal are not
prospective within the meaning of that rule. Accordingly, NRCP 60(b)(5)
was not an appropriate vehicle by which Willard could seek relief. In hight
of the foregoing, we affirm the district court’s orders denying Willard’s
motions to set aside the sanctions order.
ATG WL , CW.
Stiglich
We concur:
by J. Protos iJ.
Cadish Pickering
ti LA ey th. C ; , Jd.
Herndon Lee
Le sce se — Ji
J
Parraguirre U
SupREME COuRT
OF
Nevapa 16
(0) 1947 RB