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FINAL SCHMINAL: WHAT CAN YOU REALLY APPEAL?

There are two inevitable truths to litigation:  Sometimes you lose, and losing sucks.  Fortunately, you can appeal.  Unfortunately, you usually have to wait until the bitter end of the case because of the Final Judgment Rule.

WHAT IS THE FINAL JUDGMENT RULE?

Before you can take an appeal, you must have a “final judgment.”  NRAP 3A(b)(1).  A “final judgment” is a judgment that resolves all claims and rights in the litigation, and leaves nothing for the lower court to consider except for non-substantive “post-judgment issues” like attorney fee awards.  Simmons Self-Storage Partners, LLC v. Rib Roof, Inc., 127 Nev. 86, 87, 247 P.3d 1107, 1108 (2011).

The final judgment rule exists to avoid “piecemeal litigation,” by having the lower court decide all of the issues in one case before the appellate court can re-examine those rulings.  Barbara Ann Hollier Tr. v. Shack, 131 Nev., Adv. Op. 59, 356 P.3d 1085, 1090 (2015).  It also prevents our already over-taxed appellate courts from an increasingly heavier caseload.  Archon Corp. v. Eighth Jud. Dist. Ct., 133 Nev., Adv. Op. 1010, 407 P.3d 702, 709 (Nev. 2017).  Finally, it actually makes litigation more efficient, since you cannot constantly appeal everything and endlessly delay the underlying case.  Musso v. Triplett, 78 Nev. 355, 358, 372 P.2d 687, 689 (1962).

HOW DO I KNOW IF MY JUDGMENT IS FINAL?

As noted above, a final judgment will resolve all substantive claims and issues.  Simmons, 127 Nev. at 87, 247 P.3d at 1108.  This means that liability and damages have been awarded or denied on all claims.  As long as all substantive claims and issues are resolved, it does not matter whether the lower court actually called its order a “judgment,” or an “order.”  You can appeal it.  Lee v. GNLV Corp., 116 Nev. 424, 427, 996 P.2d 416, 418 (2000).

The following orders are not appealable final judgments:

(1)       Orders denying jury trials.  O’Neill v. Dunn, 83 Nev. 228, 230, 427 P.2d 647, 648 (1967)

(2)       Orders granting or refusing a continuance.  Rosenthal v. Rosenthal, 39 Nev. 74, 153 P. 91, 92 (1915).

(3)       Orders denying summary judgment.  Cromer v. Wilson, 126 Nev. 106, 109, 225 P.3d 788, 790 (2010).

(4)       Pre-dismissal orders approving proposed settlements, entered prior to any final dismissal of the case.  Valley Bank of Nev. v. Ginsburg, 110 Nev. 440, 445, 874 P.2d 729, 733 (1994).

(5)       Orders denying or granting discovery motions.  Sunrise Hosp. v. Dailey, 109 Nev. 950, 951, 860 P.2d 162, 162-63 (1993).

(6)       Orders denying motion for leave to file a counterclaim.  Lucas v. Page, 89 Nev. 248, 249, 510 P.2d 868, 869 (1973).

(7)       Orders denying a motion to dismiss, motion for judgment on the pleadings, or motion to strike.

WHAT HAPPENS WHEN THERE ARE MULTIPLE PARTIES?

To be appealable under NRAP 3A(b)(1), the order or judgment must resolve all claims and liabilities against all parties.  Aldabe v. Evans, 83 Nev. 135, 136-37, 425 P.2d 598, 599 (1967).  If it does not, you must obtain certification under NRCP 54(b) from the District Court in order to appeal it.  Id.

DO I APPEAL AFTER JUDGMENT OR AFTER NOTICE OF ENTRY OF JUDGMENT?

If your district court requires that a notice of entry of order or judgment be filed, you should wait to appeal until after that time.  Kehoe v. Blethen, 10 Nev. 445, 453 (1876).  These can be filed by any party, so if you want to start the appellate clock ticking because you either anticipate an appeal or you want to file an appeal, you should file the notice of entry as soon as possible.

This post only discusses final judgments.  NRAP 3A contains a long list of other orders which are appealable.  In addition, there are many statutes that allow for interlocutory (i.e., immediate or early) appeals.  Be aware of your appeal rights for your claims when you file them.