Resnik v. Quality Loan Serv. Corp.

IN THE SUPREME COURT OF THE STATE OF NEVADA
BRAD RESNIK, No. 84751
Appellant,
vs.
QUALITY LOAN SERVICE
CORPORATION; SATICOY BAY LLC
SERIES 4928 E MONROE AVENUE;
NATIONSTAR MORTGAGE LLC, D/B/A
FILE
MR. COOPER; U.S. BANK TRUST AUG 03 2022
NATIONAL ASSOCIATION, AS
ELIZABEIll A. BROWN
OWNER TRUSTEE FOR VRMTG CLERKX WPREME COURT
ASSET TRUST; AND SHELLPOINT, BY •Y
DEPUTYLV2
Res • ondents.
ORDER DISMISSING APPEAL
This is an appeal from a district court order granting a
temporary writ of restitution. Eighth Judicial District Court, Clark County;
Veronica Barisich, Judge.
Respondent Saticoy Bay LLC Series 4928 E Monroe Avenue has
filed a motion to dismiss this appeal for lack of jurisdiction, pointing out
that no authority authorizes an appeal from an order granting a temporary
writ of restitution. Appel lant opposes, asserting that the order constitutes
an injunction appealable under NRAP 3A(b)(3).
The right to appeal is statutory; if no statute or court rule
provides for an appeal, no right to appeal exists. See Taylor Constr. Co. v.
Hilton Hotels, 100 Nev. 207, 678 P.2d 1152 (1984); Kokkos v. Tsalikis, 91
Nev. 24, 530 P.2d 756 (1975). Here, as Saticoy Bay asserts, no statute or
court rule expressly provides for an appeal from an order granting a
temporary writ of restitution. See NRAP 3A(13).
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Nevertheless, appellant argues that because the order
commands the sheriff or constable to act, it constitutes an injunction, which
is expressly appealable under NRAP 3A(b)(3). See Peck v. Crouser, 129 Nev.
120, 124, 295 P.3d 586, 588 (2013) ("An injunction is la] court order
commanding or preventing an action." (quoting Black's Law Dictionary 800
(8th ed. 2004)). We disagree. The order granting a writ of restitution, while
bearing some similarity to an injunction, does not command any party to
act or refrain from acting on an ongoing basis to prevent irreparable harm
or to undo a wrong, enforceable against that party by contempt. See Nken
v. Holder, 556 U.S. 418, 428 (2009) ("When a court employs the
extraordinary remedy of injunction, it directs the conduct of a party, and
does so with the backing of its full coercive powers. . . . It is true that in a
general sense, every order of a court which commands or forbids is an
injunction; but in its accepted legal sense, an injunction is a judicial process
or mandate operating in personarn." (internal quote marks, alterations, and
citations omitted)); Orange County v. Hongkong & Shanghai Banking
Corp., 52 F.3d 821, 825-26 (9th Cir. 1995) (recognizing three fundamental
characteristics of injunctions: they are (1) directed to a particular party, (2)
enforceable by contempt, and (3) designed to accord or protect substantive
relief (citing 16 Charles A. Wright et al., Federal Practice and Procedure
§ 3922 at 29 (1977))). Further, in Peck, we recognized that "injunctions are
governed by NRCP 65, which sets forth the procedure for seeking an
injunction and the form that an order granting an injunction must take."
129 Nev. at 124, 295 P.3d at 588. The challenged order does not appear
subject to NRCP 65's requirements. Finally, we have dismissed appeals
from temporary writs of restitution in the past, see, e.g., Chauvin v. Nat'l
Default Seru. Corp., No. 59380, 2012 WL 472742 (Nev. Feb. 13, 2012) (Order
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Dismissing Appeal); Shawhan v. Shawhan, No. 52459, 2008 -WL 6124824
(Nev. Dec. 19, 2008) (Order Dismissing Appeal); Naseef v. County of Clark,
Docket No. 34947 (May 11, 2000) (Order Dismissing Appeal in Part), and
we have historically considered such matters an appropriate subject of an
original petition for writ relief. See, e.g., KJ.B. Inc. v. Second Judicial Dist.
Court, 103 Nev. 473, 745 P.2d 700 (1987); Farnow v. Eighth Judicial Dist.
Court, 64 Nev. 109, 178 P.2d 371 (1947). Accordingly, we decline to treat
the order granting a writ of restitution as equivalent to an injunction for
appeal purposes.
As we lack jurisdiction, and without prejudice to appellant's
ability to seek writ relief, we grant Saticoy Bay's motion and
ORDER this appeal DISMISSED.'
L) J.
Silver
Cadish
"In light of this order, appellant's emergency motion for stay is denied
as moot.
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cc: Hon. Veronica Barisich, District Judge
Ara H. Shirinian, Settlement Judge
Benjamin B. Childs
Akerman LLP/Las Vegas
Troutman Pepper Hamilton Sanders LLP/Las Vegas
McCarthy & Holthus, LLP/Las Vegas
Law Offices of Michael F. Bohn, Ltd.
Eighth District Court Clerk
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