Ajs Constr., Inc. v. Pankopf ( 2013 )

 reverse the district court's order insofar as it dismissed appellant's
complaint, and we remand this matter to the district court with
instructions to the court that it enter an amended order staying the
underlying proceedings. In light of this conclusion, the order compelling
arbitration is interlocutory, and we necessarily lack jurisdiction to
consider at this time whether that decision was correct. Clark Cnty. v.
Empire Elec., Inc., 96 Nev. 18, 19, 604 P.2d 352, 353 (1980). Accordingly,
we summarily
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
, C.J.
Gibbons
CustA J.
Parraguirre
Saitta
cc: Hon. Brent T. Adams, District Judge
Cathy Valenta Weise, Settlement Judge
Whitehead & Whitehead
Tory M. Pankopf
Washoe District Court Clerk
SUPREME COURT
OF 2
NEVADA
(0) 1947A
HARDESTY, J., concurring:
I concur with the majority that the district court's order
dismissing the action should be reversed and a stay of the proceedings
pending the outcome of the arbitration should be imposed. However, I
would do so by published opinion discussing the competing approaches to
the jurisdictional issue created when a district court compels arbitration
but dismisses the action. In particular, a conflict exists between our rules
governing appeals from final judgments and our caselaw interpreting
appeals under NRS 38.247, and this case requires resolution of that
conflict. Therefore, disposition by published opinion is appropriate. See
NRAP 36(c)(1) ("The court will decide a case by published opinion if
it. . . [p]resents an issue of first impression. . . .").
Under the Uniform Arbitration Act, when a district court
grants an order to compel arbitration, the court is required to stay the
proceedings before it, pending the arbitration's conclusion. NRS 38.221(7).
In light of its interlocutory nature, the Act does not permit an appeal from
an order granting a motion to compel arbitration. NRS 38.247(1) (listing
appealable orders). As a result, this court has held that no appeal may be
taken from an order compelling arbitration, see Clark Cnty. v. Empire
Elec., Inc., 96 Nev. 18, 19, 604 P.2d 352, 353 (1980), and that if a party
seeks to obtain review of the district court's decision to compel arbitration,
that party must either file a petition for a writ of mandamus, see State ex
rel. Masto v. Second Judicial Dist. Court, 125 Nev. 37, 44, 199 P.3d 828,
832 (2009), or appeal from the district court's later order confirming the
arbitration award. See Whitemaine v. Aniskovich, 124 Nev. 302, 307 n.5,
183 P.3d 137, 141 n.5 (2008).
SUPREME COURT
OF
NEVADA
(0) 1947A
As happened here, however, when the district court fails to
stay the proceedings and instead dismisses the action altogether, the order
technically becomes a final judgment, thereby making the order
appealable. See Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417
(2000) ("[A] final judgment is one that disposes of all the issues presented
in the case, and leaves nothing for the future consideration of the court,
except for post-judgment issues such as attorney's fees and costs."); NRAP
3A(b)(1) (permitting an appeal from a final judgment). Thus, this case
presents the novel question of whether this court has jurisdiction to review
the arbitrability issue—i.e., whether the district court properly compelled
arbitration—in an appeal from an order that has compelled arbitration
and dismissed the action.
There are three basic approaches that appellate courts take
when determining whether the arbitrability issue is properly reviewable
in an appeal from an order that has compelled arbitration and dismissed
the action. Some courts conclude that the arbitrability issue is reviewable
because the decision to compel arbitration is the last true decision that the
lower court must make with regard to the case. See, e.g., Sawyers v.
Herrin-Gear Chevrolet Co., 26 So. 3d 1026, 1033-34 (Miss. 2010); Kremer v.
Rural Cmty. Ins. Co., 788 N.W.2d 538, 548-49 (Neb. 2010). In essence,
these courts reason that the act of ordering the parties to arbitration is
what makes the order an appealable final judgment.
Other courts conclude that the arbitrability issue is properly
reviewable because the order compelling arbitration also dismissed the
action, but that the arbitrability issue would not have been reviewable if
the order had stayed the underlying proceedings. See, e.g., Green Tree
Fin. Corp.-Ala. v. Randolph, 531 U.S. 79, 86-87 (2000); Commonwealth v.
SUPREME COURT
OF
NEVADA
2
(0) 1947A )4. ,
Philip Morris Inc., 864 N.E.2d 505, 511 n.9 (Mass. 2007); In re Gulf
Exploration, LLC, 289 S.W.3d 836, 839-40 (Tex. 2009). These courts
reason that the act of dismissing the action is what makes the order
appealable as a final judgment and that this element is lacking when the
order stays the underlying proceedings.
Still other courts conclude that the arbitrability issue is never
reviewable in an appeal from an order compelling arbitration—even when
the appealed-from order has dismissed the action in its entirety. See, e.g.,
Widener v. Fort Mill Ford, 674 S.E.2d 172, 173-74 (S.C. Ct. App. 2009);
Judith v. Graphic Commc'ns Int'l Union, 727 A.2d 890, 891-92 (D.C. 1999);
Muao v. Grosvenor Props. Ltd., 122 Cal. Rptr. 2d 131, 138 (Ct. App. 2002).
These courts recognize that the Uniform Arbitration Act requires a lower
court to stay the proceedings upon ordering arbitration, and that an order
compelling arbitration is not among the Act's list of appealable orders.
Widener, 674 S.E.2d at 173-74; Judith, 727 A.2d at 891-92; Muao, 122 Cal.
Rptr. 2d at 134, 138 (analyzing California's analog to the Act).
Consequently, these courts decline to review the arbitrability issue
because the jurisdictional basis for doing so rests solely on the lower
court's decision to improperly dismiss the action.
In my view, the superior approach is the third approach, as
that approach is more consistent with the interlocutory nature of an order
compelling arbitration and it prevents the district court from conferring
jurisdiction on this court over the otherwise unappealable arbitrability
issue based solely on the improper dismissal of the underlying action.
Thus, in this case, I concur with the majority's decision to reverse the
district court's dismissal of appellant's action and to decline to reach the
question of whether arbitration was properly compelled. But because the
SUPREME COURT
OF
NEVADA
3
(0) 1947A
jurisdictional issue in this case presents a novel question of law in
Nevada, I would dispose of this case by published opinion.
J.
SUPREME COURT
OF 4
NEVADA
(0) 1947A