Huckabay Props. v. NC Auto Parts , 2014 NV 23 ( 2014 )


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  •                                                     130 Nev., Advance Opinion     23
    IN THE SUPREME COURT OF THE STATE OF NEVADA
    HUCKABAY PROPERTIES, INC., A                              No. 61024
    NEVADA CORPORATION,
    Appellants,
    vs.
    FILED
    NC AUTO PARTS, LLC, A NEVADA                                          MAR 2 7 2014
    LIMITED LIABILITY COMPANY; AND                                       T C K. LINDEMAN
    STEVEN B. CRYSTAL, AN                                           CL
    INDIVIDUAL,
    Respondents.
    HUCKABAY PROPERTIES, INC., A                              No. 61791
    NEVADA CORPORATION; AND JOHN
    HUCKABAY, JR.,
    Appellants,
    vs.
    NC AUTO PARTS, LLC, A NEVADA
    LIMITED LIABILITY COMPANY; AND
    STEVEN B. CRYSTAL,
    Respondents.
    Petition for en bane reconsideration of an order dismissing
    appeals for failure to file opening brief and appendix.
    Petition for en bane reconsideration denied.
    Hoffman, Test, Guinan & Collier and John A. Collier, Reno; McDonald
    Carano Wilson LLP and Debbie A. Leonard and Seth T. Floyd, Reno;
    Sterling Law LLC and Beau Sterling, Las Vegas,
    for Appellants.
    Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno; Wm.
    Patterson Cashill, Reno,
    for Respondents.
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    BEFORE THE COURT EN BANC.
    OPINION
    By the Court, HARDESTY, J.:
    These consolidated appeals were dismissed for failure to
    timely file the opening brief and appendix. In seeking the en banc court's
    reconsideration, appellants argue that dismissal of their appeals based on
    the missteps of their lead appellate attorney is contrary to this court's
    precedent recognizing public policy favoring dispositions on the merits.
    Appellants' dissatisfaction with their attorney's performance, however,
    does not entitle them to the reinstatement of their appeals, and their
    argument to the contrary is not consistent with general agency principles,
    under which a civil litigant is bound by the acts or omissions of its
    voluntarily chosen attorney. Although this court has a sound policy
    preference for deciding cases on the merits, that policy is not absolute and
    must be balanced against countervailing policy considerations, including
    the public's interest in expeditious resolution of appeals, the parties'
    interests in bringing litigation to a final and stable judgment, prejudice to
    the opposing side, and judicial administration concerns, such as the court's
    need to manage its sizeable and growing docket. We therefore disagree
    with appellants that precedential uniformity provides a basis to reinstate
    these appeals. As appellants' contentions fail to satisfy NRAP 40A's
    standards, en banc reconsideration is denied.
    FACTS AND PROCEDURAL HISTORY
    The appeal in Docket No. 61024 challenged a district court
    judgment following a bench trial in a real property contract action. The
    appeal in Docket No. 61791 challenged the same court's post-judgment
    orders awarding attorney fees and costs. The appeals were consolidated
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    on December 12, 2012, and a briefing schedule was set, under which
    appellants' opening brief was due by no later than March 12, 2013.
    Overdue opening brief
    On appellants' motion, the briefs due date was extended to
    April 11, 2013. On April 12, 2013, appellants filed a motion seeking a
    second extension until May 13, 2013, to file the brief Because appellants
    did not submit the brief by the May 13 requested deadline, appellants'
    motion for a second extension was denied as moot on May 24, 2013.
    Despite denying the motion, the May 24 order allowed appellants 11 more
    days, until June 4, 2013, to file and serve the opening brief and appendix,
    but the order warned that failure to do so could result in the appeals'
    dismissal. The brief and appendix were not filed by that deadline.
    Appellants had two attorneys of record in these appeals: Beau Sterling
    and John A. Collier. Mr. Sterling apparently was responsible for briefing
    the appeal and filing documents in this court. Mr. Collier, who was trial
    counsel, received copies of this court's notices and orders.
    Motion to dismiss
    On June 10, 2013, respondents filed a motion to dismiss these
    appeals.' Appellants, through Mr. Sterling, opposed the motion and again
    "Mr. Sterling is a registered user of the court's electronic filing
    system and Mr. Collier is not. The Nevada Electronic Filing and
    Conversion Rules provide that the court must provide notice to all
    registered users that a document has been electronically filed and is
    available for review, and registered users are deemed to have consented to
    receiving service electronically. See NEFCR 9(b)-(c). As to nonregistered
    users, a party filing a document must serve the nonregistered recipient by
    traditional means. NEFCR 9(d). Here, respondents filed the motion to
    dismiss electronically, such that Mr. Sterling received service, but they did
    not serve Mr. Collier by traditional means.
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    asked for more time to file the brief, until June 12, stating that the "short
    amount of additional time is requested in order to help spread out the
    deadlines slightly on a number of matters, including this one, that all fell
    due around the same time, and most of which are similarly urgent." Mr.
    Sterling also represented that he had recently filed briefs and prepared for
    oral argument in other matters and that he had a personal commitment.
    He stated that his motion for a third extension of time was filed late
    because he wanted to be sure he could complete the brief by any new
    deadline requested before making the motion.
    Respondents opposed any additional time and argued that
    because this court denied appellants' second motion for an extension of
    time as moot in the May 24 order, the 11-day grace period allowed in that
    order for filing the brief could not "possibly have lead Mr. Sterling to
    believe the court would grant another extension or that the 11-day time
    limit in the order could be ignored." Respondents also stated that Mr.
    Sterling misrepresented that he attempted to contact respondents to
    confer on a third extension of time.
    On June 14, 2013, appellants electronically filed in this court a
    "certificate of service" for the opening brief and appendix, indicating that
    on June 12, 2013, they submitted to this court and served on respondents
    by United States mail the opening brief and appendix. The brief and
    appendix, however, were not submitted to this court for filing with the
    certificate of service. They were subsequently provisionally received in
    this court by mail on June 17, 2013. Based on the failure to file the brief
    and appendix by the June 4 deadline and failure to comply with court
    rules and directives, the appeals were dismissed by order of this court on
    June 25, 2013.
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    Motion for reconsideration and petition for rehearing
    Through newly retained counsel, appellants filed a motion for
    reconsideration and a petition for rehearing to reinstate their appeals,
    arguing that they had no knowledge of Mr. Sterling's pattern of disregard
    for this court's orders, and relying on this court's stated policy favoring
    merit-based consideration of appeals. They also stated that Mr. Sterling
    and respondents' counsel failed to notify Mr. Collier about respondents'
    motion to dismiss, which "prevented Mr. Collier from taking steps to
    salvage the appeal[s]."
    Respondents opposed the motion and rehearing petition,
    arguing that Mr. Collier was aware of the briefing deadlines and was
    served with this court's notices and order regarding missed deadlines and
    warning about possible dismissal for failing to file documents.
    Respondents argued that this awareness, along with the fact that Mr.
    Collier never received a draft copy of the opening brief from Mr. Sterling
    at any time before the briefing deadline expired, should have made it clear
    to Mr. Collier that the appeals were not being managed properly. In that
    regard, they pointed out that Mr. Sterling contacted Mr. Collier on June 4,
    2013, requesting copies of the transcripts from Mr. Collier, which should
    have alerted Mr. Collier that Mr. Sterling could not have possibly already
    prepared the brief because he did not have the necessary transcripts even
    on the briefs final due date, June 4. Respondents also argued that even
    though Mr. Collier was not served with a copy of the motion to dismiss,
    which was filed on June 10, 2013, the opening brief was overdue by that
    date and this court could have sua sponte dismissed the appeals pursuant
    to its May 24 order, a copy of which was provided to Mr. Collier.
    The motion for reconsideration and petition for rehearing were
    denied. See NRAP 31(b)(3) (requiring a motion for an extension of time to
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    be filed before the filing deadline expires); NRAP 31(d) (explaining
    consequences for failing to file briefs, including dismissal); Weddell v.
    Stewart, 127 Nev. , 
    261 P.3d 1080
    (2011) (addressing counsel's
    repeated failures to follow court rules and directives and declining to
    reconsider an order dismissing an appeal based on such failures); NRAP
    40(c) (setting forth rehearing standards). This petition for en bane
    reconsideration followed.
    DISCUSSION
    In seeking to reinstate their appeals, appellants contend that
    reconsideration is necessary to maintain uniformity in the court's
    jurisprudence and to preserve public policy favoring a decision on the
    merits and disfavoring a "deprivation of appeal rights based solely on the
    missteps of counsel."2 Appellants further contend that since Mr. Collier
    was not served with the motion to dismiss or Mr. Sterling's motions for
    2According    to appellants, this court's dismissal order punished
    appellants for their attorney's misconduct in other unrelated cases,
    notwithstanding that Mr. Sterling belatedly sought a third extension of
    time and ultimately submitted the opening brief in these matters, albeit
    late. To the contrary, the order dismissing these appeals was grounded
    solely on appellants' failure to comply with court rules and orders
    concerning the overdue documents in these matters. Thus, appellants'
    contention that they are being punished for their attorney's "misconduct in
    other cases unrelated to their own" is not supported and lacks merit.
    Although Mr. Sterling was referred to the state bar in the same order
    dismissing the appeals, the dismissal was based on the circumstances of
    these two appeals, only. While Mr. Sterling's referral to the state bar was
    based in part on the conduct that led to the dismissal of these appeals, and
    in part on similar conduct in other cases, the inverse is not true, i.e., these
    appeals were not dismissed based in any part on Mr. Sterling's conduct in
    other cases. Thus, we do not further address this argument.
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    extensions of time, they were deprived of their constitutional right to
    receive proper service (on Collier).
    En bane reconsideration is disfavored, and this court will only
    order reconsideration when necessary to preserve precedential uniformity
    or when the case implicates important precedential, public policy, or
    constitutional issues. NRAP 40A(a). Neither of those standards have
    been met here.
    Precedential uniformity does not mandate reinstatement of these appeals
    In seeking reconsideration, appellants argue that Hansen v.
    Universal Health Services of Nevada, Inc., 
    112 Nev. 1245
    , 
    924 P.2d 1345
                    (1996), demands that these matters be heard on their merits, but we are
    not persuaded that it does. 3
    In Hansen, the court noted its concern with appellant's
    counsel's failure to comply with court rules and orders, but nevertheless
    declined to grant respondents' motion to dismiss the appeal. 
    Id. at 1247,
                    924 P.2d at 1346. The appellant in Hansen was a patient who alleged that
    he was permanently disabled as a result of the respondents' actions in
    implanting an experimental device in appellant's spine.   
    Id. at 1246,
    924
    3 Appellants  also rely on Hotel Last Frontier Corp. v. Frontier
    Properties, Inc., 
    79 Nev. 150
    , 154-55, 
    380 P.2d 293
    , 295 (1963), but
    Frontier reviewed the district court's denial of an NRCP 60(b) motion to
    set aside a default judgment, and there is no analogous remedial rule in
    the appellate context that allows an appeal's reinstatement based on
    excusable neglect or mistake. Instead, when a party receives an
    unfavorable decision on appeal, rehearing or reconsideration may be
    granted if that party meets the standards set forth under NRAP 40 or
    NRAP 40A. Thus, because Frontier was decided under different
    procedural and factual circumstances than these appeals, we do not
    further address Frontier.
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    P.2d at 1345-46. In the district court, appellant sought over $2,000,000 in
    damages, and when he lost at trial and judgment was entered against
    him, he appealed alleging numerous reversible trial errors.             
    Id. Appellant's attorney,
    however, failed to have the record transmitted from
    the district court to this court despite being given several extensions of
    time to accomplish that rule-mandated task. 
    Id. at 1246-47,
    924 P.2d at
    1346. Respondents moved to dismiss the appeal, and the court denied the
    motion, explaining that
    counsel's calendaring error, preoccupation with
    other trials and failure to contact the court
    reporter do not constitute extreme or
    unforeseeable circumstances. Nevertheless, the
    compelling nature of the facts in the underlying
    dispute persuades us to allow this appeal to
    proceed. Moreover, in light of this court's
    preference for deciding cases on the merits, and
    because the dilatory conduct in this matter has
    been occasioned solely by counsel's inexcusable
    neglect, rather than his client's conduct, we
    decline to dismiss this appeal.
    
    Id. at 1247-48,
    924 P.2d at 1346 (citations omitted). Hansen, therefore, is
    grounded on three reasons: its compelling facts, policy preference for
    merits-based dispositions, and the dilatory conduct was deemed
    attributable to counsel, not appellant. 
    Id. Addressing each
    of those reasons, we conclude that Hansen
    first is limited in part to its facts, which were determined to be
    "compelling."   
    Id. But the
    compelling facts-conclusion that the court
    recognized is not followed by any citation of authority, nor did the court
    advance any reasoning or explanation why the nature of the facts might be
    a sustainable basis to allow an appeal to continue despite repeated
    failures to comply with court rules and orders. 
    Id. Because Hansen
    does
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    not provide any reasoning or legal basis for the conclusion that compelling
    facts may preclude dismissal, we conclude that the factual nature of an
    underlying case is not an appropriate measure to evaluate whether an
    appeal should be dismissed for violations of court rules and/or orders.
    Thus, we disapprove of Hansen to the extent it indicates that a fact-based
    assessment of the underlying civil action should be made before
    determining whether to dismiss an appeal on procedural grounds.
    Second, although Hansen was also partly based on the sound
    policy preference for deciding cases on the merits, that policy is not
    boundless and must be weighed against other policy considerations,
    including the public's interest in expeditious appellate resolution, which
    coincides with the parties' interests in bringing litigation to a final and
    stable judgment; prejudice to the opposing party; and judicial
    administration concerns, such as the court's need to manage its large and
    growing docket. See Link v. Wabash R.R. Co., 
    370 U.S. 626
    , 630-31 (1962);
    Kushner v. Winterthur Swiss Ins. Co., 
    620 F.2d 404
    , 406-08 (3d Cir. 1980);
    GCIU Emp'r Ret. Fund v. Chi. Tribune Co., 
    8 F.3d 1195
    , 1199 (7th Cir.
    1993) (noting that courts must "perpetually balance the competing
    interests of keeping a manageable docket against deciding cases on their
    merits"). Thus, a party cannot rely on the preference for deciding cases on
    the merits to the exclusion of all other policy considerations, and when an
    appellant fails to adhere to Nevada's appellate procedure rules, which
    embody judicial administration and fairness concerns, or fails to comply
    with court directives or orders, that appellant does so at the risk of
    forfeiting appellate relief.   See NRAP 31(d) (describing consequences for
    failure to file briefs or appendix, which include dismissal of the appeal);
    Weddell v. Stewart, 127 Nev. , 
    261 P.3d 1080
    (2011); City of Las Vegas
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    v. Int'l Ass'n of Firefighters, Local No. 1285, 
    110 Nev. 449
    , 
    874 P.2d 735
                    (1994); Varnum v. Grady, 
    90 Nev. 374
    , 
    528 P.2d 1027
    (1974); see also
    NRAP 9(a)(6) and NRAP 14(c) (providing that an appeal may be dismissed
    for failure to file transcript request forms and docketing statements,
    respectively). Accordingly, dismissal of an appeal after a party fails to
    comply with court rules and orders is not inconsistent with the policy
    preference to decide cases on the merits when balanced with other policy
    concerns, and our decision to dismiss these appeals following such failures
    does not mandate reconsideration to maintain uniformity with Hansen.
    Finally, Hansen's reasoning that the appeal should be allowed
    to proceed in part because the dilatory conduct in that matter was
    "occasioned solely by counsel's inexcusable neglect, rather than his client's
    conduct," is inconsistent with general agency 
    principles. 112 Nev. at 1247
    -
    
    48, 924 P.2d at 1346
    . In particular, an attorney's act is considered to be
    that of the client in judicial proceedings when the client has expressly or
    impliedly authorized the act. Restatement (Third) of The Law Governing
    Lawyers §§ 26, 27 (2000 and Supp. 2013); see Pioneer Inv. Servs. Co. v.
    Brunswick Assocs. Ltd. P'ship, 
    507 U.S. 380
    , 396-97 (1993) (noting that in
    a representative litigation system, "clients must be held accountable for
    the acts and omissions of their attorneys"). Thus, to the extent that
    Hansen holds that dismissal will not follow violations of court rules or
    orders because counsel, acting on the client's behalf, occasioned such
    violations, that decision is overruled. 4
    'While the United States Supreme Court has recognized an
    exception to holding a litigant responsible for its attorney's procedural
    errors when the attorney actually abandons the client without notice, thus
    severing the principal-agent relationship, the cause necessary for that
    continued on next page...
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    Failure to follow court rules as grounds for dismissing civil appeal
    The United States Supreme Court has recognized that when
    an action is dismissed for failure to comply with court rules, the litigant
    cannot seek a do-over of their dismissed action based on arguments that
    dismissal is too harsh a penalty for counsel's unexcused conduct, as to do
    so would offend general agency principles.       
    Link, 370 U.S. at 633-34
                           (rejecting argument that petitioner's claim should not have been dismissed
    based on counsel's unexcused conduct because "fp] etitioner voluntarily
    chose this attorney as his representative in the action, and he cannot now
    avoid the consequences of the acts or omissions of this freely selected
    agent"). While Link was decided in the context of reviewing a trial court
    dismissal for failure to prosecute, its reasoning that a party cannot seek to
    avoid a dismissal based on arguments that his or her attorney's acts or
    omissions led to the dismissal applies to appellate court dismissals with
    equal force.
    For example, in Kushner v. Winterthur Swiss Insurance Co.,
    the Third Circuit Court of Appeals dismissed an appeal for appellant's
    failure to file an appendix that complied with court rules. 
    620 F.2d 404
    ,
    ...continued
    exception to apply is not present here. See Maples v. Thomas, 565 U.S.
    , 
    132 S. Ct. 912
    , 922-23 (2012) (distinguishing claims of attorney
    error, no matter how egregious, from claims of attorney abandonment, in
    concluding that cause to excuse procedural errors cannot be based on an
    attorney's error). We have also recognized two exceptions to the general
    agency rule that the "sins" of the lawyer are visited upon his client where
    the lawyer's addictive disorder and abandonment of his legal practice or
    criminal conduct justified relief for the victimized client, but those
    exceptional circumstances are not present here either. See NC-DSH, Inc.
    v. Garner, 
    125 Nev. 647
    , 656, 
    218 P.3d 853
    , 860 (2009); Passarelli v. J-Mar
    Dev., Inc., 
    102 Nev. 283
    , 286, 720, P.2d 1221, 1223-24 (1986).
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    407 (3d Cir. 1980). In so doing, the court made it clear to the appellate bar
    the importance and necessity of complying with court rules concerning the
    content and filing of briefs and appendices. 
    Id. The court
    explained the
    practical reasons and jurisprudential justification for its decision to
    dismiss the appeal, noting that the rules of appellate procedure and local
    court rules were enacted to enable the court to effectively process its
    increasing caseload, and that the number of appeals filed per judge had
    swelled dramatically since the rules were enacted.      
    Id. at 406-07.
    5 The
    court thus reasoned that it would not expend valuable judicial time in
    performing the work of errant counsel who failed to properly comply with
    briefing rules, and who, by failing to abide by appellate rules, hindered the
    court's efforts to provide speedy and just dispositions of appeals for every
    litigant. 
    Id. at 407;
    see also Barber v. Am. Sec. Bank, 
    841 F.2d 1159
    , 1162,
    (D.C. Cr. 1988) (dismissing appeal based on "counsel's failure to file a
    brief on time, his failure to file a motion for an extension ten days prior to
    the date his brief was due, his failure to seek leave to file his time
    5 Unlike  civil procedure rules governing district court actions,
    appellate court rules generally do not provide a remedial basis for
    reconsidering a final decision based on a litigant's neglect or mistake in
    processing its appeal; instead, rehearing or reconsideration of an appeal
    are not favored and will only be granted for limited reasons. Compare,
    e.g., the remedial district court rule NRCP 60(b), which provides a
    mechanism for setting aside a default judgment or order for mistake,
    inadvertence, surprise, or excusable neglect with the appellate rule for
    rehearing, NRAP 40, which allows rehearing of an appeal only upon
    demonstration that the court overlooked or misapprehended points of law
    or fact, and NRAP 40A, which explains the two bases on which en banc
    •
    reconsideration may be granted, neither of which are grounded on
    counsel's or the litigant's excusable neglect, mistake, or inadvertence.
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    enlargement motion late, and the clearly inadequate grounds he
    eventually offered for the late filings")
    In imposing the sanction of dismissal, the court in Kushner
    was mindful of the impact on appellants, noting that it could be argued
    that dismissal of an appeal unduly penalizes the litigant for the dereliction
    of errant 
    counsel 620 F.2d at 407
    . The court reasoned, however, that
    unlike a defendant in a criminal case, an aggrieved party in a civil case
    involving only private litigants "does not have a constitutional right to the
    effective assistance of counsel The remedy in a civil case, in which chosen
    counsel is negligent, is an action for malpractice."      
    Id. at 408
    (internal
    quotation marks omitted).° Other federal appellate courts have similarly
    dismissed appeals as a sanction for poorly presenting a case or failing to
    comply with briefing and appendix content rules. See Abner v. Scott Mem'l
    Hasp., 
    634 F.3d 962
    , 965 (7th Cir. 2011) (summarily affirming district
    court summary judgment and striking oversized brief that was not
    accompanied by a timely and supported motion for leave to exceed the
    °Although in criminal appeals the constitutional right to effective
    assistance of counsel under the United States Constitution's Sixth
    Amendment applies, there is no parallel constitutional protection in the
    civil context. See U.S. Const. amend. VI ("In all criminal prosecutions, the
    accused shall enjoy the right to . the Assistance of Counsel for his
    defense"); Rodriguez v. Eighth Judicial Dist. Court, 
    120 Nev. 798
    , 804-05,
    
    102 P.3d 41
    , 45-46 (2004) (recognizing that the Sixth Amendment right to
    counsel applies only in criminal prosecutions); Sanchez v. U.S. Postal
    Serv., 
    785 F.2d 1236
    , 1237 (5th Cir. 1986) ("[T]he sixth amendment right
    to effective assistance of counsel does not apply to civil litigation."); Nelson
    v. Boeing Co., 
    446 F.3d 1118
    , 1119 (10th Cir. 2006) (providing that "filf a
    client's chosen counsel performs below professionally acceptable
    standards, with adverse effects on the client's case, the client's remedy is
    not reversal, but rather a legal malpractice lawsuit against the deficient
    attorney").
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    type-volume limitation, and announcing a warning that the "flagrancy of
    the violation" of the appellate rules alone might well have justified the
    appeal's dismissal); Snipes v. Ill. Dep't of Corr., 
    291 F.3d 460
    , 464 (7th Cir.
    2002) (noting that an appellate court may dismiss an appeal or summarily
    affirm the judgment when appellant fails to comply with briefing rules);
    N I S Corp. v. Liberty Mitt. Ins. Co.,      
    127 F.3d 1145
    (9th Cir. 1997)
    (dismissing appeal based on briefing violations); United States v. Green,
    
    547 F.2d 333
    (6th Cir. 1976) (dismissing appeal based on appendix
    deficiencies); see generally Wesley Kobylak, Annotation, Sanctions, in
    Federal Circuit Courts of Appeals, for Failure to Comply with Rules
    Relating to Contents of Briefs and Appendixes, 55 A.L.R. Fed. 521, 526-27
    (1981).
    Here, appellants did not follow the rules governing briefing
    and motions practice, and they did not adhere to the briefing deadlines set
    forth by court order, nor did they provide any adequate basis for their
    failure to do so. Thus, they cannot expect this court to continue to keep
    these matters on its docket and then consider the merits of the appeals
    when appellants eventually decide to submit their brief for consideration.
    Our May 24, 2013, order in fact warned appellants that dismissal may be
    forthcoming if the brief was not filed by the deadline imposed by that
    order. The dismissal therefore should have come as no surprise. Although
    appellants contend that Hansen v. Universal Health Services of Nevada,
    Inc., 
    112 Nev. 1245
    , 
    924 P.2d 1345
    (1996), provides them an out for the
    dismissal of their appeals and that Hansen should be applied to grant
    them a mulligan, in a sense, such a do-over is appropriately limited to
    remedy a poorly executed tee-shot, and not so much in the litigation
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    setting to correct failures to adhere to court rules and orders. 7 This court
    has in fact on several occasions recognized that an appeal may be
    appropriately dismissed for just such violations.   See Weddell v. Stewart,
    127 Nev. 
    261 P.3d 1080
    (2011) (declining to reconsider an order
    dismissing an appeal based on repeated failures to follow court rules and
    directives); City of Las Vegas v. Ass'n of Firefighters, Local No. 1285,
    
    110 Nev. 449
    , 453-54, 
    874 P.2d 735
    , 738 (1994) (concluding that dismissal
    was an appropriate sanction for failure to supply the record and take
    action in an appeal as "the primary responsibility for this transgression
    must lie with the appellant"); Varnum v. Grady, 
    90 Nev. 374
    , 
    528 P.2d 1027
    (1974) (dismissing an appeal based on appellant's counsel's multiple
    procedural derelictions and dilatory pursuit of appeal). As explained
    above, our decision denying reconsideration and declining to reinstate
    these appeals is consistent with authority from federal jurisdictions and
    with general agency principles that bind a client to its attorney's acts and
    omissions.
    7 Likewise, appellants' argument that the court could have accepted
    the late-submitted brief and appendix does not provide a basis for en banc
    reconsideration. See NRAP 40A; NRAP 31(b)(3) (a motion for an extension
    of time may be made no later than the due date for the brief); Varnum v.
    Grady, 
    90 Nev. 374
    , 376, 
    528 P.2d 1027
    , 1028-29 (1974) (counsel's caseload
    is not a reasonable ground for neglect of duties); Malloy ix WM Specialty
    Mortg., L.L.C., 
    512 F.3d 23
    , 27 (1st Cir. 2008) (affirming district court
    dismissal order, concluding that "plaintiffs proffered no legitimate excuse
    for the delay," and instead relied on legally insignificant excuses, such as
    preoccupation with other cases); Damiani v. ILL Hosp., 
    704 F.2d 12
    , 17
    (1st Cir. 1983) (affirming district court dismissal order and, in so doing,
    pointing out counsel's improper conduct in filing self-indulgent motions,
    not making every effort to comply with court orders, not seeking consent of
    opposing counsel if compliance was actually impossible, and not seeking
    "court approval for noncompliance based on a truly valid reason").
    SUPREME COURT
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    (0) 1947A    (step
    Respondents' failure to serve appellants' second attorney with their motion
    to dismiss is not grounds for reconsideration
    Appellants argue that because Mr. Collier was not served with
    the motion to dismiss or Mr. Sterling's motions for extensions of time, the
    court, in dismissing these appeals, "Condone[dl a Deprivation of Due
    Process." They argue that "[Oven the serious due process issues that are
    implicated by respondents' failure to serve Mr. Collier with the motion to
    dismiss, the panel should not have deprived appellants of their appeal
    rights under these circumstances."
    We reject appellants' argument that this court approved or
    condoned any conduct that led to a deprivation of appellants'
    constitutional rights. Appellants freely chose their appellate counsel, and
    counsel was served with all documents in this matter, including this
    court's May 24, 2013, order warning that the appeals were subject to
    dismissal if appellants failed to file the opening brief and appendix by
    June 4, and respondents' motion to dismiss, which counsel opposed on
    appellants' behalf. In fact, both of appellants' attorneys of record were
    served with the May 24 order and both were aware or should have been
    aware of the briefing deadlines. Regardless, NRCP 5(b) provides that
    when service "is required or permitted to be made upon a party
    represented by an attorney, the service shall be made upon the attorney." 8
    The rule refers to "an attorney" and "the attorney" in the singular, and
    courts interpreting the analogous federal rule have rejected the argument
    that FRCP 5 requires service on all counsel of record. See Nelson v. Heer,
    8 NBAP  25(b) uses consistent language, requiring a party to serve
    documents on other parties to the appeal and that "[s] ervice on a party
    represented by counsel shall be made on the party's counsel."
    SUPREME COURT
    OF
    NEVADA
    16
    (01 1947A    ce
    
    121 Nev. 832
    , 834, 
    122 P.3d 1252
    , 1253 (2005) (recognizing that "federal
    decisions involving the Federal Rules of Civil Procedure provide
    persuasive authority when this court examines its rules").
    In particular, federal courts—recognizing that FRCP 5
    requires service on all parties, not on each attorney appearing on behalf of
    a party—have held that service on one attorney is effective service of a
    pleading.   See Daniel Ina Corp. v. Fischbach & Moore, Inc., 
    916 F.2d 1061
    , 1063 (5th Cir. 1990); Buchanan v. Sherrill, 
    51 F.3d 227
    , 228 (10th
    Cir. 1995) (concluding that service of a summary judgment motion on one
    of plaintiffs attorneys, but not on the other, was effective service under
    FRCP 5); see also City of Lincoln v. MJM, Inc., 
    618 N.W.2d 710
    , 713 (Neb.
    Ct. App. 2000) (citing Comstock v. Cole, 
    44 N.W. 487
    , 488 (Neb. 1890))
    (concluding that "the law has long been that where there are two
    attorneys of record, service upon one of them is adequate"). And in
    Nevada, "[n]otice to an attorney is, in legal contemplation, notice to his
    client." Lange v. Hickman, 
    92 Nev. 41
    , 43, 
    544 P.2d 1208
    , 1209 (1976).
    Thus, even if only one of two or several attorneys is served with a
    document, a party represented by the served attorney is deemed to have
    received notice of the document.          See 
    id. Accordingly, appellants'
                    constitutional rights remained intact throughout the appellate process,
    and respondents' failure to serve Mr. Collier with the motion to dismiss
    does not provide a basis for en banc reconsideration, as Mr. Sterling was
    served with that document and both Mr. Sterling and Mr. Collier were
    served with this court's May 24 order denying the motion for an extension
    SUPREME COURT
    OF
    NEVADA
    17
    (0) 1947A
    of time and warning that failure to file the brief could result in the
    appeals' dismiss al. 9
    CONCLUSION
    While Nevada's jurisprudence expresses a policy preference for
    merits-based resolution of appeals, and our appellate procedure rules
    embody this policy, among others, litigants should not read the rules or
    any of this court's decisions as endorsing noncompliance with court rules
    and directives, as to do so risks forfeiting appellate relief. In these
    appeals, appellants failed to timely file the opening brief and appendix
    after having been warned that failure to do so could result in the appeals'
    dismissals. Appellants actually had two attorneys who received copies of
    this court's notices and orders regarding the briefing deadline, but they
    nevertheless failed to comply with briefing deadlines and court rules and
    orders. Although they assert that Hansen v. Universal Health Services of
    Nevada, Inc.,      
    112 Nev. 1245
    , 
    924 P.2d 1345
    (1996), mandates
    reconsideration and reinstatement of their appeals, Hansen was a fact-
    specific decision to some extent, and an appeal may be dismissed for
    failure to comply with court rules and orders and still be consistent with
    the court's preference for deciding cases on their merits, as that policy
    must be balanced against other policies, including the public's interest in
    an expeditious appellate process, the parties' interests in bringing
    litigation to a final and stable judgment, prejudice to the opposing side,
    and judicial administration considerations, such as case and docket
    9Although  appellant's constitutional deprivation argument lacks
    merit, we point out that attorneys who do not participate in the electronic
    filing system should be served by traditional means. See NRAP 25(c);
    NEFCR 9(d).
    SUPREME COURT
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    NEVADA
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    (0) 1947A
    management. As for declining to dismiss the appeal because the dilatory
    conduct was occasioned by counsel, and not the client, that reasoning does
    not comport with general agency principles, under which a client is bound
    by its civil attorney's actions or inactions, and thus Hansen is overruled to
    the extent that it holds otherwise. For the reasons stated above, all other
    arguments advanced by appellants in support of their petition for en banc
    reconsideration are either not legally sound or do not meet the standards
    for en bane reconsideration under NRAP 40A. En bane reconsideration is
    therefore denied.
    r_e_e_t_tt      ,   J.
    Hardesty
    We concur:
    J.
    Pickering
    Parraguirre
    ,   J.
    SUPREME COURT
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    NEVADA
    19
    (D) 1947A -   O
    

Document Info

Docket Number: 61024

Citation Numbers: 2014 NV 23

Filed Date: 3/27/2014

Precedential Status: Precedential

Modified Date: 10/30/2014

Authorities (23)

Louis M. Damiani, M.D. v. Rhode Island Hospital , 704 F.2d 12 ( 1983 )

Malloy v. WM Specialty Mortgage LLC , 512 F.3d 23 ( 2008 )

Jesse M. Sanchez v. United States Postal Service , 785 F.2d 1236 ( 1986 )

kushner-marvin-and-kushner-dolores-husband-and-wife-v-winterthur-swiss , 620 F.2d 404 ( 1980 )

Nelson v. Boeing Commercial , 446 F.3d 1118 ( 2006 )

juanita-buchanan-v-penny-sherrill-individually-and-as-owner-of-autex , 51 F.3d 227 ( 1995 )

NC-DSH, INC. v. Garner , 125 Nev. 647 ( 2009 )

gciu-employer-retirement-fund-formerly-known-as-international-printing , 8 F.3d 1195 ( 1993 )

Robert Snipes, Plaintiff-Appellant/cross-Appellee v. ... , 291 F.3d 460 ( 2002 )

Charles Barber v. American Security Bank , 841 F.2d 1159 ( 1988 )

Daniel International Corporation, Cross-Appellant v. ... , 916 F.2d 1061 ( 1990 )

United States v. Jared Powers Green , 547 F.2d 333 ( 1976 )

City of Lincoln v. MJM, INC. , 9 Neb. Ct. App. 715 ( 2000 )

N/S CORPORATION, a Pennsylvania Corporation, Plaintiff-... , 127 F.3d 1145 ( 1997 )

Rodriguez v. Dist. Ct. , 102 P.3d 41 ( 2004 )

Lange v. Hickman , 92 Nev. 41 ( 1976 )

Hotel Last Frontier Corp. v. Frontier Properties, Inc. , 79 Nev. 150 ( 1963 )

Varnum v. Grady , 90 Nev. 374 ( 1974 )

Passarelli v. J-Mar Development, Inc. , 102 Nev. 283 ( 1986 )

Weddell v. Stewart , 127 Nev. 645 ( 2011 )

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