Hesser v. Kennedy Funding, Inc.

IN THE SUPREME COURT OF THE STATE OF NEVADA
VINCENT W. HESSER, AN No. 81383
INDIVIDUAL,
Appellant,
vs. FILE
KENNEDY FUNDING, INC., A NEW
JERSEY CORPORATION, FEB 0 4 2022
Res ondent.
ORDER OF AFFIRMANCE
This is an appeal from an order denying a motion to declare a
judgment expired in a contract dispute. Eighth Judicial District Court,
Clark County; Elizabeth Goff Gonzalez, Judge. The underlying dispute
arose from a loan guaranty agreement between appellant Vincent W.
Hesser and respondent Kennedy Funding, Inc. The district court entered
summary judgment in favor of Kennedy Funding, and Kennedy Funding
later filed an affidavit of renewal of the judgment with the district court.
Based on Kennedy Funding's failure to record the affidavit of renewal
within three days after filing per NRS 17.214(1)(b), Hesser filed a motion to
declare the judgment expired. The district court denied this motion and
'Pursuant to NRAP 34(0(1), we have determined that oral argument
is not warranted.
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Hesser's subsequent motion to alter or amend the order. Hesser now
appeals.2
Hesser contends that the district court erred by denying his
motion to declare the judgment expired because Kennedy Funding failed to
record its affidavit of renewal within three days of the affidavit's filing with
the district court. We disagree. NRS 17.214(1)(b) provides, in relevant part,
that "[a] judgment creditor or a judgment creditor's successor in interest
may renew a judgment which has not been paid," "[i]f the judgment is
recorded, [by] recording the affidavit of renewal in the office of the county
recorder in which the original judgment is filed within 3 days after the
affidavit of renewal is filed." At issue here is whether this statute is subject
to strict or substantial compliance.
In Leven v. Frey, we addressed this issue, concluding that this
statute was subject to strict compliance and that substantial compliance
would undermine legislative intent.3 123 Nev. 399, 409, 168 P.3d 712, 719
(2007). In doing so, we reasoned that "since the statute includes no built-in
grace period or safety valve provision, its explicit three-day language leaves
little room for judicial construction or 'substantial compliance analysis." Id.
at 407, 168 P.3d at 718 (internal footnote omitted). We further reasoned
2Afteran order to show cause, we reinstated briefing in this case. See
Hesser v. Kennedy Funding, Inc., No. 81383 (Nev. Dec. 24, 2020) (Order
Reinstating Briefing).
3We thus reject Kennedy Funding's contention that the goal of
avoiding harsh results warrants applying substantial compliance.
2
that such an interpretation was "consistent with the general tenet that
'time and manner requirements are strictly construed, whereas substantial
compliance may be sufficient for 'form and content' requirements," id. at
408, 168 P.3d at 718, and with the statute's primary purpose, id. at 408, 168
P.3d at 719 (noting that "the recording requirement's main purpose is to
procure reliability of title searches for both creditors and debtors since any
lien on real property created when a judgment is recorded continues upon
that judgment's proper renewar).
Nevertheless, we have also held that "strict compliance does not
mean absurd compliance." Einhorn v. BAC Home Loans Servicing, LP, 128
Nev. 689, 696, 290 P.3d 249, 254 (2012); see also 2A Norman J. Singer &
J.D. Shambie Singer, Statutes and Statutory Construction § 46:2, at 162
(7th ed. 2007) (Statutes should be read sensibly rather than literally and
controlling legislative intent should be presumed to be consonant with
reason and good discretion."). Here, it is uncontested that Kennedy
Funding satisfied all of NRS 17.214s service and recording requirements
before the judgment expired. Thus, unlike in Leven where the judgment
had expired, a creditor conducting a title search would have seen there was
an unexpired lien on the property. As such, the purpose of procuring
reliable title searches is not affected in the circumstances presented here.
The fact that there was a brief delay in recording the affidavit of renewal
does not impact this reality, at least where the affidavit was filed and
recorded well before the judgment expired. To make the outcome turn on
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the present facts "exalts literalism for no practical purpose."4 Einhorn, 128
Nev. at 697, 290 P.3d at 254. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Parraguirre
J.
Hardesty
cc: Chief Judge, Eighth Judicial District Court
Department 11, Eighth Judicial District Court
Stephen E. Haberfeld, Settlement Judge
Law Offices of Byron Thomas
Lynch Law Practice, PLLC
Eighth District Court Clerk
4To the extent the district court relied on the substantial compliance
doctrine, we nevertheless affirm because it ultimately reached the correct
result. See Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 599,
245 P.3d 1198, 1202 (2010) (holding that this court will affirm a district
court's order if the right result was reached, even if for the wrong reason).
And because it reached the correct result, we also affirm the district court
order denying Hesser's motion to alter or amend the order denying his
motion to declare the judgment expired. See NRAP 59(e); AA Primo
Builders, LW v. Washington, 126 Nev. 578, 582, 245 P.3d 1190, 1193 (2010)
(holding that NRCP 59(e) motions are available to correct manifest errors
of law).
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