Demoff v. Sharp ( 2015 )

 multiple claims, including breach of the partnership agreement. The
district court in Nevada determined that, pursuant to the partnership
agreement, the parties intended to submit to binding arbitration and
ordered the claims in the action to be arbitrated in Nevada. Subsequently,
respondents filed their answer, counterclaims, and cross-claims with the
arbitrator.
Eventually, the arbitrator entered a default against appellant
for failure to answer respondents' counterclaims. Over four months later,
facing an application for a default judgment against her, appellant filed an
opposition to the application and a motion to set aside the default
On October 7, 2009, the arbitrator issued a lengthy written
decision in favor of respondents. Thereafter, respondents filed a motion in
district court to confirm the arbitration award, which the district court
granted. On December 7, 2009, the notice of entry of this order was served
on appellant by mail.
On January 6, 2010, appellant filed a voluntary petition for
bankruptcy under 11 U.S.C. § 301, initiating a bankruptcy stay.
Thereafter, on May 16, 2013, the stay was terminated by joint stipulation.
On June 13, 2013, appellant filed a notice of appeal.
DISCUSSION
On appeal, appellant contends that the district court erred by
exceeding the scope of the arbitration provision in the partnership
agreement and that the arbitrator erred by refusing to set aside the
default. Respondents disagree and separately argue that this court lacks
jurisdiction to review this appeal. We determine that, while this court has
jurisdiction to entertain the appeal, appellant's arguments are untimely
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and therefore waived. Accordingly, we affirm the district court's order
confirming the arbitration award.
Jurisdiction
We review jurisdictional questions de novo. See Deja Vu
Showgirls v. State, Dep't of Tax., 130 Nev., Adv, Op. 73, 334 P.3d 392, 397
(2014). As we explained in Whitman v. Whitman, 108 Nev. 949, 950, 840
P.2d 1232, 1233 (1992), "fain untimely notice of appeal fails to vest
jurisdiction in this court." NRAP 4(a)(1) generally requires a party to file
a notice of appeal "no later than 30 days after the date that written notice
of entry of the judgment or order appealed from is served," but also
recognizes that "[ilf an applicable statute provides that a noticeS of appeal
must be filed within a different time period, the notice of appeal . . . must
be filed within the time period established by the statute."
Here, written notice of the district court's order was served on
appellant by mail on December 7, 2009. NRAP 26(c) provides a party
three additional days for filing a notice of appeal when receiving service of
the entry of the order by mail. Because respondents served appellant with
notice of the district court's order by mail, appellant was entitled to three
additional days to file her appeal.
On January 6, 2010, before the deadline for filing her appeal
passed, appellant filed a voluntary notice of bankruptcy pursuant to 11
U.S.C. § 301. Under 11 U.S.C. § 362(a), "a petition filed under section
301 .. . operates as a stay, applicable to all entities, of-- (1) the
commencement or continuation. . . of a judicial . . . action or proceeding
against the debtor." Although respondents claim that appellant's appeal
does not qualify as an action against the debtor, we disagree. "[Sjection
362 should be read to stay all appeals in proceedings that were originally
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brought against the debtor, regardless of whether the debtor is the
appellant or the appellee." Parker v. Bain, 68 F.3d 1131, 1136 (9th Cir.
1995) (internal quotation omitted). Because a single case can include
more than one action or proceeding for purposes of the application of the
automatic stay under 11 U.S.C. § 362(a), multiple claims "must be
disaggregated so that particular claims, counterclaims, cross claims and
third-party claims are treated independently when determining which of
their respective proceedings are subject to the bankruptcy stay." Id. at
1137 (internal quotation omitted). Although appellant initiated the action
below by filing her complaint, respondents filed counterclaims. Those
counterclaims qualify as claims originally brought against the debtor
under Section 362(a)(1). See Koolik v. Markowitz, 40 F.3d 567, 568 (2d
Cir. 1994). Therefore, appellant's appeal related to respondents'
counterclaims triggered the automatic stay under 11 U.S.C. § 362(a)(l.).
Having concluded that an automatic stay took effect, we must
determine whether, after the termination of the stay, appellant timely
filed her appeal. Section 108(c) of U.S.C. chapter 11 provides:
Rif applicable nonbankruptcy law. . . fixes a
period for commencing or continuing a civil action
in a court other than a bankruptcy court on a
claim against the debtor. . and such period has
not expired before the date of the filing of the
petition, then such period does not expire until the
later of--
(1) the end of such period, including any
suspension of such period occurring on or after
the commencement of the case; or
(2) 30 days after notice of the termination or
expiration of the stay under section
362. . with respect to such claim.
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Pursuant to section 108(c), because appellant filed her
voluntary petition for bankruptcy initiating the stay under section 362
before the deadline to appeal the district court's decision expired,
appellant had 30 days after the expiration of the stay to file her appeal.
Here, the stay ended on May 16, 2013, and appellant filed her notice of
appeal within 30 days on June 13, 2013. Accordingly, this court has
jurisdiction to hear this appeal under NRAP 4(a)(1).
Waiver
"We review a district court's confirmation of an arbitration
award de novo," considering the strong public policy in favor of arbitration
and applying a clear and convincing evidence standard when a party seeks
to vacate such an award. Sylver v. Regents Bank, N.A., 129 Nev., Adv. Op.
30, 300 P.3d 718, 721 (2013). A court may vacate an arbitration award by
statute or common law. See id. However, a party's failure to timely move
the district court for such relief equates to waiver. See Casey v. Wells
Fargo Bank, N.A., 128 Nev., Adv. Op. 64, 290 P.3d 265, 268 (2012). A
party seeking to vacate an arbitration award by statute has 90 days after
receiving notice of the arbitration award to file a motion. NRS 38.241(2).
And, although we have acknowledged that "[s]ome courts have suggested
that a non-statutory basis for vacatur . . . may be articulated even after the
three-month limitations period . . . has expired," we have not adopted that
principle, and therefore do not apply it here.
Here, appellant failed to file a motion for vacatur or make any
other challenge within the required time period after receiving notice of
the arbitration award. This constituted waiver. Accordingly, we decline to
consider appellant's substantive arguments that were not raised before
the district court.
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Based on the foregoing, we ORDER the judgment of the
district court AFFIRMED.
Qin)ta"
Parraguirre % ss.19.
J.
Douglas
cc: Hon. Elizabeth Goff Gonzalez, District Judge
Stephen E. Haberfeld, Settlement Judge
Law Offices of P. Sterling Kerr
Fennemore Craig Jones Vargas/Las Vegas
Fennemore Craig Jones Vargas/Reno
Eighth District Court Clerk
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