TRP FUND VI, LLC v. PHH MORTG. CORP.

138 Nei., Advance Opinion tr.)
IN THE SUPREME COURT OF THE STATE OF NEVADA
TRP FUND VI, LLC, A DELAWARE No. 84407
LIMITED LIABILITY COMPANY,
Appellant,
vs.
PHH MORTGAGE CORPORATION, A
FOREIGN CORPORATION; AND
FILE
FEDERAL NATIONAL MORTGAGE
ASSOCIATION, A NATIONAL
BANKING ENTITY,
Respondents.
Emergency motion for stay and/or injunction pending appeal.
Motion denied.
The Wright Law Group and John Henry Wright, Las Vegas,
for Appellant.
Wright, Finlay & Zak, LLP, and Christina V. Miller, Las Vegas,
for Respondents.
BEFORE THE SUPREME COURT, SILVER, CADISH, and PICKERING,
JJ.
OPINION
PER CURIAM:
When filing emergency motions and motions for stay, moving
parties must meet certain requirements designed to provide prompt notice,
quick access to the information needed to resolve the motion, and proof that
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they have first sought relief in the district court or that doing so is
impracticable. Failure to comply with these requirements may result in
summary denial of the motion.
FACTS
In the underlying quiet title and declaratory relief action,
appellant TRP Fund VI, LLC, sought a preliminary injunction to enjoin
respondents PHH Mortgage Corporation and Federal National Mortgage
Association from foreclosing under the first position deed of trust on its
property. On March 10, 2022, the district court entered an order denying
the preliminary injunction, and TRP Fund appealed.
TRP Fund filed in this court an emergency motion for stay
and/or injunction on March 21, seeking relief before a foreclosure sale
scheduled for April 1, and paid the filing fee the next day. See NRAP 3(e)
(requiring the payment of a filing fee); NRAP 45(f) (The clerk shall not be
required to file any paper or record in the clerk's office or docket any
proceeding until the fee required by law and these Rules has been paid.").
An NRAP 27(e) certificate, which must accompany emergency motions, was
not attached to the stay motion but was attached to a simultaneously filed
motion to exceed the page limit. In the stay motion, TRP Fund asserted
that it was "clearlY impracticable" to seek a stay pending appeal in the
district court as set forth in NRAP 8(a) because the district court had just
refused to grant it a preliminary injunction seeking similar relief, such that
it "would be a waste of time and resourcee to ask that court for a stay.
Respondents timely filed a response to the stay motion,'
arguing that the stay motion should be summarily denied because TRP
1TRPFund's and respondents motions for leave to file a stay motion
and an opposition thereto that exceed the NRAP 27(d)(2) page limits are
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Fund failed to include the NRAP 27(e) certificate with the emergency
motion and failed to first seek stay relief in the district court or to
demonstrate that doing so was impracticable. In the response, respondents
contend that TRP Fund did not attempt to comply with the NRAP 27(e)
requirement to notify them of its intent to seek emergency relief before it
filed the stay motion.
DISCUSSION
Due to their urgent nature, emergency motions use
considerable court and party resources. When relief is needed within 14
days to avoid irreparable harm, NRAP 27 requires the movant to take
certain enumerated steps to ensure both that the parties and the court are
notified of the emergency as soon as possible and that the information
needed to process the motion is readily available. To those ends, NRAP
27(e)(1) requires the movant, before filing the motion, to "make every
practicable effort to notify the clerk of the Supreme Court, opposing counsel,
and any opposing parties proceeding without counsel and to serve the
motion at the earliest possible time." • The motion must be accompanied by
a certificate providing the contact information for the parties, the facts
demonstrating both the existence and the nature of the asserted emergency,
and when and how the other parties were notified of the emergency and
served with the motion. NRAP 27(e)(3). Further, the movant must explain
in the motion whether relief was available and sought in the district court
and, if not sought, why the motion should not be denied. NRAP 27(e)(4).
Finally, when the movant is seeking a stay or injunction, the movant must
also comply with NRAP 8(a)(1), which states that "[a] party must ordinarily
granted. The motion and opposition were filed on March 21 and March 28,
respectively.
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move first [for such relief] in the district court." Any movant that seeks a
stay from this court without first applying in the district court must
demonstrate that first. seeking relief in the district court would be
"impracticable." NRAP 8(a)(2)(A)(i).
Here, TRP Fund's NRAP 27(e) certificate fails to meet the
stated requirements. It was rot attached to the emergency stay motion and,
while certifying that the motion was made "at the earliest opportunity,"
TRP Fund does not further explain that statement or demonstrate that it
attempted to notify respondents of the emergency before filing the motion.
More problematically, TRP Fund admittedly did not first seek
relief in the district court and failed to demonstrate that doing so was
impracticable. "Impracticable 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. Webster's II New College Dictionary, at 556 (1995). TRP Fund
argues only that seeking a stay in the district court was • unwarranted
because the district court denied it a preliminary injunction, not that it was
unable to file the motion or that the court was incapable of granting the
requested relief. While considerations in determining whether to grant a
preliminary injunction overlap with those in determining whether to grant
a stay or injunction pending appe4 they are not the same. Compare
Excellence Cmty. Mgmt., LLC v. Gilmore, 131 Nev. 347, 350-51, 351 P.3d
720, 722 (2015) (noting that a prelitninary injunctión may issue when the
moVing party has demonstrated a reasonable likelihood of successr on the
merits of its claims and irreparable harm), with NRCP 62(c) (proViding that
when an appeal from preliminary injunction is pending, the district court
may "grant an injunction on terms for bond or other terms that secure the
opposing party's righte), and NRAP 8(c) (listing four factors for courts. to
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consider when determining a motion for stay or injunction pending appeal).
Although both analyses look to the likelihood of success on the merits, in
determining whether to grant a stay or injunction pending appeal, the
district court may also take into consideration the purposes of the requested
stay or injunction, the novelty or unsettledness of a legal issue, and any
other issues of security and harm.
Here, the district court denied a preliminary injunction based
on its review of the merits but did not delve into other considerations that
rnay weigh in favor of a stay or •injunction pending appeal. As we have
acknowledged before, this court's strong policy favoring an initial stay
decision from the district court is based on that court's vastly greater
familiarity with the facts and circumstances of the case and better position
to resolve such factual issues, including those of duration and bond
necessity and amount.2 Nelson v. Heer, 121 Nev. 832, 836, 122 P.3d 1252,
1254 (2005), as modified (Jan. 25. 2006); see generally In re Grand Jury
Proc. U.S., 626 F.2d 1051, 1059 (1st Cir. 1980) (recognizing that the federal
rule analogous to NRAP 8 embodies a strong policy that a request for a
stay or injunction pending appeal be directed in the first instance to the
district court, which is familiar with the controversy and better able to
assess potential prejudice to a party from the grant or denial of interim
relier), receded from on other grounds by In re Kaye, 760 F.2d 343, 356 (1st
Cir. 1985). Thus, unless movants can demonstrate that first asking the
district court for relief is truly impracticable, they are required to seek stay
and injunctive relief pending appeal in the district court even when that
2We note, for example, that respondents argue that the lis pendens
TRP Fund has recorded against the property is sufficient to protect its
interest.
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court has denied them a preliminary injunction. TRP Fund's failure to do
so here bars relief, and we deny the emergency motion for stay or injunction.
J.
Silver
J.
Cadish
J.
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