Antonio Nev., LLC v. Eldorado Hills, LLC ( 2015 )

 to satisfy the judgment. Appellant filed a motion to stay the sale, which
a the district court denied because appellant had not posted a bond.
Nevertheless, the district court temporarily stayed the sale noticed for
November 3, 2014, until November 18, 2014, at 12 p.m. so that appellant
could seek a stay from this court This court denied appellant's motion for
a stay without the posting of a supersedeas bond, but noted that appellant
may obtain a stay consistent with NRCP 62(d) by providing a supersedeas
bond in the judgment amount. Appellant did not post the bond, and thus,
did not receive a stay. Therefore, Rogich purchased appellant's interest in
things in action at the November 18, 2014, sale. Based on his purchase of
appellant's rights in this action, Rogich, along with Eldorado Hills, moved
to dismiss these appeals.
In Butwiniek v. Hepner, 128 Nev. Adv. Op. No. 65, 291 P.3d
119, 121-22 (2012), this court recognized that a judgment creditor may
purchase a party's rights and interests in an action at an execution sale,
but concluded that a party's defenses to an action may not be purchased
because only "a right to bring an action to recover a debt, money, or thing"
may be purchased. (internal quotations omitted). Accordingly, this court
concluded that while a judgment creditor could purchase the debtor's
thing in action and dismiss an appeal from a judgment as to the debtor's
claims, the creditor cannot purchase the debtor's defense to an action and
thereafter dismiss an appeal from a judgment as to the debtor's defenses.
Id. at 122.
Having considered the motion, opposition, and reply, we grant
respondents' motion to dismiss in part. Because the appeal in Docket No.
65731 arises from a dismissal of the action brought by appellant, Rogich
could purchase appellant's rights in that action, and by extension, the
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rights in that appeal.' Id.; see also NRS 21.080(1) (listing property liable
to execution, including personal property); NRS 10.045 (defining "personal
property" to include "things in action"). As Rogich purchased appellant's
rights in the underlying action in Docket No. 65731, he now, for all intents
and purposes, holds appellant's position in regard to that appeal, and
thus, appellant is not an aggrieved party and therefore lacks standing to
maintain the appeal in Docket No. 65731 from the district court's April
2014 order. See Kenney v. Hickey, 60 Nev. 187, 189, 105 P.2d 192, 192
(1940) (defining aggrieved party as "one whose personal right is
injuriously affected by the adjudication, or where the right of property is
adversely affected or divested thereby"); NRAP 3A(a) (only an aggrieved
party has standing to appeal). Accordingly, we dismiss the appeal in
Docket No. 65731. 2
'While in opposition to the motion, appellant asserts that Rogich
failed to provide the statutorily required notices of sale for the continued
sale date of November 18, 2014, appellant does not assert that he has
instituted an action to set aside the sale as a result of the alleged notice
deficiency and we conclude that our consideration of the alleged notice
deficiency in the first instance would be improper. See generally Swartz v.
Adams, 93 Nev. 240, 241-42, 563 P.2d 74, 75 (1977) (recognizing that one
may challenge the notice of an execution sale through an action to set
aside the execution sale).
2 We note that the appropriate method for respondents to move to
dismiss the appeal in Docket No. 65731 would have been for Rogich to
request leave to be substituted in for appellant under NRAP 43 and then
move for dismissal under NRAP 42. Because denying respondents' motion
on this ground and requiring the appropriate motion would only serve to
unnecessarily delay the dismissal of Docket No. 65731, we grant the
requested relief despite its improper form.
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We, however, deny respondents' motion to dismiss the appeal
in Docket No. 64763. Because the appeal in Docket No. 64763 arises out
of an order granting summary judgment on Rogich's counterclaim, and not
from the action brought by appellant, Rogich cannot purchase appellant's
defensive rights in the counterclaim action, and by extension, his rights in
the appeal from the judgment on that counterclaim. Butwi nick, 128 Nev.
Adv. Op. No. 65, 291 P.3d at 122. Thus, we deny the motion to dismiss the
appeal in Docket No. 64763 and reinstate the briefing schedule in that
appeal as follows. 3 Respondent shall have 30 days from the date of this
order to file and serve the answering brief Thereafter, briefing shall
proceed in accordance with NRAP 31(a)(1).
It is so ORDERED.
Parraguirre
Cherry
cc: Hon. Mark R. Denton, District Judge
Kathleen M. Paustian, Settlement Judge
McDonald Law Offices, PLLC
Fennemore Craig Jones Vargas/Las Vegas
Lionel Sawyer & Collins/Las Vegas
Eighth District Court Clerk
3 Tothe extent appellant's opening brief addresses the issues raised
in Docket No. 65731, we will disregard those arguments.
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