Murray v. A Cab Taxi Serv. Llc

IN THE SUPREME COURT OF THE STATE OF NEVADA
MICHAEL MURRAY; AND MICHAEL No. 82539
RENO, INDIVIDUALLY AND ON
BEHALF OF OTHERS SIMILARLY
SITUATED, FILED
Appellants,
vs. FEB 1 7 2022
A CAB TAXI SERVICE LLC; A CAB,
LLC; AND CREIGHTON J. NADY,
Res ondents.
ORDER OF REVERSAL AND REMAND
This is an appeal from a district court post-judgment order
denying a motion to appoint a receiver in a class action. Eighth Judicial
District Court, Clark County; Carli Lynn Kierny, Judge."
Appellants are taxi drivers who secured a judgment against
their former employer, respondent A Cab, LLC, for failing to pay them
minimum wage. See A Cab, LLC v. Murray, 137 Nev., Adv. Op. 84, P.3d
(2021). When appellants encountered difficulties satisfying the
judgment, they moved the district court to appoint a post-judgment
receiver. The district court denied appellants first motion without
prejudice and instead appointed a special master to submit a report as to
whether appointing a receiver was feasible. The district court later ordered
the special master to prepare a second report based on respondents' updated
financials, but the special master passed away before completing this task
or otherwise advising the district court. Appellants then renewed their
'Pursuant to NRAP 34(0(4 we have determined that oral argument
is not warranted.
request for a receiver,2 while also seeking alternative relief to help secure
their rights as judgment creditors. The district court denied the motion,
finding that it was untimely and improper under various local rules because
appellant& request for a receiver had already been denied several times.
As a preliminary matter, we first address respondents'
contention that this court lacks jurisdiction over this appeal. Although the
district court construed appellants motion as one for reconsideration, its
order also explicitly denied appellants' request to appoint a receiver.
Accordingly, this court has jurisdiction pursuant to NRAP 3A(b)(4), which
provides for an appeal from an order "refusing to appoint a receiver."
Appellants argue that the district court abused its discretion in
denying their motion by misconstruing it as a motion for reconsideration.
See Bowler v. Leonard, 70 Nev. 370, 383, 269 P.2d 833, 839 (1954) (providing
that the decision to appoint a receiver is within the discretion of the district
court). We agree. The district court's finding that appellants' motion had
already been brought and denied several times was clearly erroneous.3 See
Weddell v. H20, Inc., 128 Nev. 94, 101, 271 P.3d 743, 748 (2012) (explaining
that this court will uphold the district court's factual findings unless clearly
erroneous or not supported by substantial evidence). Our review of the
record reveals that appellants moved for the appointment of a receiver twice
before their present request. The first time, the district court denied the
2At this time, a different judge had been assigned to preside over the
case.
the district court's finding that appellant& prior request for
3Notab1y,
a receiver had been denied squarely conflicts with this court's prior order
concluding that the district court had not denied appellants' request. See
Murray v. A Cab Taxi Serv. LLC, No. 81641, 2020 WL 6585946, at *2 (Nev.
Nov. 9, 2020) (Order Dismissing Appeal).
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request without prejudice and sent the issue to a special master. Thus, the
motion was not resolved at that time and appellants could renew their
request at a later date. See Sicor, Inc. v. Sacks, 127 Nev. 896, 903, 266 P.3d
618, 623 (2011) (holding that a district court order denying a motion without
prejudice "[did] not fully resolve the issues presented and contemplate[d]
further action"). And the second time, in addition to the district court
asking a special master to consider the issue, we concluded that the district
court "neither granted nor denied [appellants] request to appoint a
receivee when dismissing appellants appeal from that second order.
Murray v. A Cab Taxi Service LLC, No. 81641, 2020 WL 6585946, at *2
(Nev. Nov. 9, 2020) (Order Dismissing Appeal). Indeed, in both instances,
the district court indicated that it would consider appointing a receiver but
wanted guidance from a special master before making a final decision. And
in both instances the district court did not receive the guidance it sought or
enter a final order denying appellants' request. Thus appellants' request
remained pending at the time they brought the motion underlying this
appeal. Because appellants' request for a receiver was still pending, we
conclude that the district court abused its discretion when it declined to
consider the merits of appellants' motion.4 We therefore reverse the district
4A1though EDCR 7.12 generally prohibits re-filing a pending motion,
district courts must balance this procedural rule with Nevada's policy of
resolving cases on their merits. See Stoecklein v. Johnson Elec., Inc., 109
Nev. 268, 271, 849 P.2d 305, 308 (1993) ("[T]he district court must consider
the state's underlying basic policy of deciding a case on the merits whenever
possible.").
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court's order and remand this case for the district court to consider
appellants request on the merits.5
It is so ORDERED.6
4Parraguirre
C244.4 j.
/ A6 A x0 , J.
Hardesty
cc: Hon. Carli Lynn Kierny, District Judge
Leon Greenberg Professional Corporation
Hutchison & Steffen, LLC/Las Vegas
Rodriguez Law Offices, P.C.
Cory Reade Dows & Shafer
Eighth District Court Clerk
5Because reversal and remand is warranted for the district court to
consider the merits of appellants' request, we decline, at this time, to
consider their arguments regarding the facts they claim support their
request to appoint a receiver. See Ryan's Express Transp. Servs., Inc. v.
Amador Stage Lines, Inc., 128 Nev. 289, 299, 279 P.3d 166, 172 (2012) (An
appellate court is not particularly well-suited to make factual
determinations in the first instance.").
6The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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