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DISSECTING CROSS-APPEALS

WHAT IS A CROSS-APPEAL?

A cross appeal is an appeal filed by a respondent.  Normally, when you are the respondent (or appellee) on appeal, you have won and your focus is on defending what the lower court did.  But, sometimes, neither side wins. 

When neither side wins, the first party to file an appeal becomes the appellant. If you want to challenge the district court’s findings as well, you do not have to file a separate appeal.  You can file a cross-appeal.

WHEN SHOULD YOU FILE A CROSS APPEAL?

You should file a cross-appeal “when acceptance of the argument [you] wish[ ] to advance would result in reversal or modification of the judgment rather than an affirmance.”  Hamilton Beach Brands, Inc. v. f’real Foods, LLC, 908 F.3d 1328, 1337 (Fed. Cir. 2018) (internal quotations omitted).  Cross-appeals must be filed if you “seek to alter the judgment below.”  Nw. Airlines, Inc. v. Cnty. of Kent, Mich., 510 U.S. 355, 364, 114 S. Ct. 855, 862, 127 L.Ed.2d 183 (1994). 

A common example of a cross-appeal is a party who prevails on summary judgment, but then is denied their requested attorney fees.  That party wants the summary judgment ruling to be upheld, but the attorney fee denial reversed.  They can cross-appeal the denial of fees. 

A cross-appeal cannot be filed when you generally agree with the outcome the court reached, but not with the court’s reasoning behind it.  “[A] party that is not adversely affected by a judgment lacks standing to cross-appeal.”  Vanda Pharm. Inc. v. W.Ward Pharm. Int’l, Ltd., 887 F.3d 1117, 1140 (Fed. Cir. 2018).  Instead, a responding party on appeal “may urge in support of a decree in any matter appearing before the record, although his argument may involve an attack upon the reasoning of the lower court.”  Jennings v. Stephens, 135 S. Ct. 793, 798, 190 L.Ed.2d 662 (2015) (internal quotations omitted).  And, “[a] prevailing party need not cross-[appeal] to defend a judgment on any ground properly raised below, so long as that party seeks to preserve, and not change, the judgment.”  Nw. Airlines, Inc., 510 U.S. at 364, 114 S. Ct. at 862. 

HOW DO YOU FILE A CROSS APPEAL?

You file a notice of cross appeal.  NRAP 28.1(b); FRAP 28.1(b).  After the appellant files their opening brief, you file a combined answering brief and opening brief on cross-appeal.  NRAP 28.1(c)(2); FRAP 28.1(c)(2).  You do not need to include a statement of the case or a statement of the facts in this brief, but it must comply with Rule 28’s requirements for opening briefs (not answering briefs) in all other respects. Id.

The appellant then gets to file a answering brief to the cross-appeal opening brief, and can combine that answering brief with their reply brief.  NRAP 28.1(c)(3).  You get to file a reply brief in support of your opening brief on cross-appeal.  NRAP 28.1(c)(4).  This must be limited to the issues presented in the cross-appeal. 

Page limits are different for briefs in a cross-appeal.  Usually, opening and answering briefs are limited to 30 pages.  On cross-appeal, the appellant’s opening brief is limited to 30 pages, but the combined answering and opening brief on cross-appeal is expanded to 40 pages.  Usually, reply briefs are limited to 15 pages, but the appellant’s combined reply and answering brief on cross-appeal is expanded to 30 pages.  The respondent’s reply brief on cross-appeal is still limited to 15 pages.  NRAP 28.1(e); FRAP 28.1(e). 

The time limits to file a brief in a cross-appeal generally remain the same.  In Nevada, opening briefs are due 120 days after the date the appeal is docketing or briefing is reinstated following the settlement program.  NRAP 28.1(f)(1)(A).  Combined answering and opening briefs on cross-appeal are due 30 days after the initial brief.  NRAP 28.1(f)(1)(B).  The reply brief and combined answering brief is due 30 days after that, and the final reply brief on the cross-appeal is due 14 days after that.  NRAP 28.1(f)(1)(C)-(D). 

In the Ninth Circuit, the opening brief is due 40 days after the record is filed, the combined answering and opening on cross-appeal is due 30 days after that, the combined reply and answering brief on cross-appeal is due 30 days after that, and the final reply brief is due 21 days after that (unless oral argument will occur prior to that, then it is due no later than 7 days before oral argument).  FRAP 28.1(f).

FOOD FOR THOUGHT

Cross-appeals are a highly strategical decision.  If you won a favorable substantive decision, you might not want to file a cross-appeal. As I repeatedly say, it is not persuasive to argue “The judge is an absolute idiot who really screwed up… so you should totally affirm them.”

Remittitur, Lawyers, and Malpractice, Oh My!: Branch Banking v. Gerrard

Unsurprisingly, lawyers really hate it when they get sued.  But, fortunately for one lawyer, the NVSC recently ruled that his former client’s legal malpractice claim against him was time-barred In Branch Banking & Trust Company v. Gerard, 134 Nev., Adv. Op. 106, 432 P.3d 736 (Nev. 2018).  In Nevada, when your case involves an appeal, the two year statute of limitations to sue your lawyer for legal malpractice in handling the case does not run until your “damages are no longer contingent on the outcome of the appeal.”  Branch Banking, 432 P.3d at 738.  The question answered by the NVSC in Branch Banking is when that moment occurs.

BRANCH BANKING WAS APPARENTLY UNHAPPY WITH ITS FORMER LAWYER

 In Branch Banking, Branch Banking & Trust hired attorney Gerrard to represent it in litigation.  432 P.3d at 738.  The lawsuit wound up on appeal with the NVSC, and Branch Banking ultimately lost.  Id.  Branch Banking filed a writ of certiorari to the United States Supreme Court, and the United States Supreme Court denied certiorari on October 6, 2014. Id

While the writ of certiorari was pending, the Nevada Supreme Court issued remittitur in March 2014.  Id. Remittitur means that “the appeal [has] conclude[d] and appellate jurisdiction [has] end[ed].”  Id. at 739.

Sometime while all of this was happening, Branch Banking and Gerrard fell out of love.  I don’t know why.  It’s not in the opinion.  All I know is that Branch Banking ultimately wound up suing Gerrard. 

Branch Banking filed its legal malpractice lawsuit against Gerrard on October 5, 2016, just under two years from the date SCOTUS denied the writ of certiorari, and two years and seven months after the NVSC issued remittitur.  Id. at 738.  Gerrard argued that the bank’s lawsuit was time-barred because it was filed seven months after the two year anniversary of the NVSC’s issuance of remittitur.  Id. The NVSC agreed. 

THE LIMITATION PERIOD TO SUE THE LAWYER RUNS FROM THE DATE OF REMITTITUR UNLESS REMITTITUR IS STAYED

According to the NVSC, the purpose of statutes of limitation are to give people some certainty as to when they can no longer be sued.  Id. at 740.  This certainty would not arise if statute of limitations were tolled pending writs of certiorari to SCOTUS.  Id. These writs do not have to be filed until 90 days (3 months) after the opinion or order, and can take months to resolve.  Id. Considering that the majority of these are largely denied, the uncertainty associated with tolling the period during this time is great. 

In contrast, remittitur is a set date.  Id. at 740.  It issues 25 days after the final decision by the NVSC.  NRAP 41(a)(1). 

The NVSC further noted that remittitur can be stayed pending a writ of certiorari to SCOTUS under NRAP 41(b)(3).  Branch Banking, 432 P.3d at 740-41.  To stay remittitur, you simply have to file a motion to stay while the writ of certiorari is pending.  NRAP 41(b).  Remittitur will be stayed for 120 days (4 months).  You can extend the period of time for good cause (i.e., “SCOTUS hasn’t rejected or accepted our writ yet”).  See id. The 120 day period will be indefinitely extended if your writ is accepted, and remittitur will remain stayed until SCOTUS files its disposition of your appeal.  See id.

Branch Banking and Trust never sought to stay remittitur.  432 P.3d at 741.  Once remittitur issued, the limitations period began running for its lawsuit against its former attorney.  Because Branch Banking and Trust filed its legal malpractice action outside of the two-year limitation period, the district court properly dismissed its action.  Id

AND THE MORAL OF THIS STORY IS…

Don’t sue your lawyer.   

Just kidding. Sort of. 

But if you are going to sue your lawyer, pay attention to when that clock starts ticking on the limitations period.  

Anatomy of an Answering Brief

I recently discussed what an appellant must include in their opening brief HERE.  This post breaks down what a respondent (Nevada) or appellee (Ninth Circuit) needs to include in their answering brief.

WHAT YOU CAN LEAVE OUT

The good news for respondents/appellees who are wordy (or lazy) is that you do not need to include every item in an opening brief in your answering brief.

Items that you do NOT need to include are:

1.  jurisdictional statement;

2.  Routing statement (Nevada);

3.  statement of the issues;

4.  statement of the case;

5.  statement of the facts;

6.  standard of review; and

7.  conclusion.

NRAP 28(b); FRAP 28(b). 

These items may be left out of the brief if you agree with the appellant’s statement of them.  Beware, however, that anything you leave out gives the appellant the only say on this matter.  As a respondent/appellee, your answering brief is your one shot at telling the court your story.

WHAT YOU MUST INCLUDE

1.  The Rule 26.1 Corporate disclosure statement;

2.  table of contents

3.  table of authorities;

4.  summary of the argument;

5.  argument;

6.  compliance certificate.

These items are discussed HERE

Hall v. Hall Revisited: In re Estate of Sarge

The Nevada Supreme Court has joined SCOTUS in holding that an order resolving one consolidated matter is independently appealable.  Hall v. Hall, 128 S. Ct. 54, 198 L.Ed.2d 780 (Sept. 28, 2017); In re Estate of Sarge, 134 Nev., Adv. Op. 105, 432 P.3d 718 (2018).  I discussed the Hall opinion HERE.

Prior to Hall, the rule in Nevada was that a consolidated case could not be independently appealed.  Mallin v. Farmers Ins. Exchange, 106 Nev. 606, 608-09, 797 P.2d 978, 980 (1990).  Following Hall, however, the NVSC overruled MallinSarge, 432 P.3d at 722. It found that Mallin did not address Rule 42 and relied upon Ninth Circuit precedent that was overruled in Hall.  Id.  The NVSC further noted that Mallin overlooked an earlier NV court case which stated that consolidated cases were independently appealable.  Id. at  721.  Reasoning that it should never allow its prior decisions to operate as a “straight jacket,” the NVSC overruled Sarge and held that consolidated cases are now independently appealable.   

Anatomy of an Opening Brief

A

One of the biggest differences between litigation and appellate practice is the briefing.  When you litigate, you can get creative with how you draft motions, what you title them, and what you include within the body of the brief.  You cannot do that on appeal.  Here’s how you structure an opening brief, and what you must include. 

CORPORATE DISCLOSURE STATEMENT

After the title page, the very first thing you should include in the brief is a corporate disclosure statement under either NRCP 26.1, or FRAP 26.1.  NRAP 28(a)(1); FRAP 28(a)(1).  The purpose of a corporate disclosure statement is to identify the immediate ownership of entities so that the presiding Justices can determine whether they need to recuse themselves.  For example, if a Justice owns a lot of stock in one of the entities that owns the appellant, they should probably recuse themselves so as to avoid any appearance of improper bias towards the respondent. 

Corporate disclosure statements must be filed any entity that is not a natural person or a government agency.  NRAP 26.1(a); FRAP 26.1(a).  The disclosure must identify the owners (whether it is a corporation or not).  If a publicly held corporation owns 10% or more the company, that company must be identified.  If the entity is not owned by a public corporation, then the corporate disclosure statement needs to specifically state that fact.  Id

The corporate disclosure statements only require you to identify immediate ownership.  If your client is a limited liability company that is wholly owned by another company, you only need to identify that company.  You do not need to go further up the chain of ownership.  See NRAP 26.1; FRAP 26.1.

In Nevada, you must also list all counsel who appeared on behalf of your client before the lower court, and who are expected to appear on appeal.  NRAP 26.1(a). 

The corporate disclosure statement is the first thing you file on appeal, which means that you must file it if you engage in briefing prior to the opening brief (motions, etc.).  FRAP 26.1(b); NRAP 26.1(b). Even if you have already separately filed a corporate disclosure statement, you must include one in your brief.  FRAP 26.1(b); NRAP 26.1(b). 

IN NEVADA, YOU ALSO NEED A ROUTING STATEMENT

Following the corporate disclosure statement, you must include a routing statement under NRAP 17, specifying which court should hear your appeal and why.  NRAP 28(a)(5).  How appeals and the routing process work in Nevada is discussed HERE.

TABLE OF CONTENTS AND TABLE OF AUTHORITIES

The next two items you must include are a table of contents, with page numbers, and a table of authorities.  FRAP 28(a)(2)-(3); NRAP 28(a)(2)-(3).  The table of authorities should contain every case, statute, rule, regulation, and secondary source that you cite, with the page number where each citation appears.  FRAP 28(a)(3); NRAP 28(a)(3).  Authorities should be listed alphabetically (case law and secondary sources), or numerically (statues and rules).  Id

JURISDICTIONAL STATEMENTS

The next item that should appear is a jurisdictional statement, identifying the source of the Court’s jurisdiction.  This must include the rule of appellate procedure that provides jurisdiction in the Supreme Court or Court of Appeals.  NRAP 28(a)(4); FRAP 28(a)(4)  The primary rule in Nevada is NRAP 3A.

You must include the filing dates of the notice of appeal, and the date the judgment was entered to establish that your appeal was timely brought within the 30-day period to appeal.  NRAP 28(a)(4)(b); FRAP 28(a)(4).  

You must also certify that your appeal is either from a final judgment or order, or from some other order over which the Supreme Court or Court of Appeals have jurisdiction.  NRAP 28(a)(4)(c); FRAP 28(a)(4).  Appealable orders which are not final judgments under Nevada law are listed in NRAP 3A(b). 

STATEMENT OF THE ISSUES

The next item is a statement of the issues on appeal.  NRAP 28(a)(6); FRAP 28(a)(5).  The “issues” on appeal are the errors you contend the District Court made.  “The District Court abused its discretion in granting sanctions because  . . . “  The District Court erred in granting summary judgment because … etc.

STATEMENT OF THE CASE

Following the statement of the issues, you must present a statement of the case.  NRAP 28(a)(7); FRAP 28(a)(6).  A statement of the case is a brief synopsis of the underlying facts of the case and the procedural background underlying the appeal. 

It is not a place for you to go off on a rant about the raving injustice your client suffered.  Opening briefs have word limits, and those limited words should not be wasted in the statement of the case. The key word here is “brief.”  The statement of the case should identify the nature of the underlying case (this is an appeal from a personal injury lawsuit, this is an appeal from a jury verdict of guilty in a first-degree murder trial, etc.).  It should briefly explain the facts and the procedural history leading up to the appeal. 

STATEMENT OF THE FACTS

The statement of the facts is exactly what it sounds like:  the statement of the factual and procedural background relevant to the appeal.  NRAP 28(a)(8).  Every sentence in this portion should have a citation to an appendix or a record on appeal page. 

You do not have to include every fact or every piece of evidence and every motion that was filed.  Your statement of the facts only needs to include those facts which are directly relevant to the issues on appeal.

SUMMARY OF THE ARGUMENT

The next item that must be included is a summary of the argument.  NRAP 28(a)(9); FRAP 28(a)(7).  The summary of the argument is similar to an introduction in a motion.  It is your real first chance to tell the Court why you are appealing, what the legal wrongs were that were suffered, and why the District Court was wrong. 

Do not simply restate your headings from your argument in your summary.  The Court hates this so much that they specifically put in their rule not “do not repeat the argument headings.”

THE ARGUMENT

The argument portion also speaks for itself.  This is where you get to argue why your client was wronged, why the District Court erred, and why the Court should rule in your favor on appeal.

Remember to always include the applicable standards of review for each issue.  You are required to include these by rule.  NRAP 28(a)(10); FRAP 28(a)(8).  You can learn what standards apply to your issues HERE.

THE CONCLUSION

Congratulations! You’ve made it to the end of your brief.  You still have to write a conclusion.  NRAP 28(a)(11); FRAP 28(a)(9).  The conclusion must state the relief sought.  Are you seeking reversal of some, but not all? Are you seeking remand?  Tell the Court what you want. 

But keep it brief.  The conclusion is not a place to rehash all of your arguments. 

RULE 28.2 CERTIFICATE

Your brief must also contain a certificate of compliance. NRAP 28(a)(12); FRAP 28(a)(10).  This certificate certifies that your brief conforms to the type and format requirements of the court, meets the word count, and is otherwise, basically, a legitimate filing.  NRAP 28.2; FRAP 32(a)(7).  If you are not represented by an attorney, you do not need to include this certificate. 

Paying for the Other Guy: How to Appeal Attorney Fee Awards

Losing hurts, and it hurts even worse when you get saddled with the other guy’s attorney’s bill.  Here’s how and when you can appeal attorney fee awards.

APPEALING INTERLOCUTORY AWARDS

If the lower court awards the other side attorney fees before entry of a final judgment, the order is interlocutory.  This means it cannot be appealed until the entry of a final judgment in the case.  See Allen v. Nelson, 126 Nev. 688, 367 P.3d 744 (2010) (dismissing an appeal of an interlocutory award of attorney fees, taken prior to entry of a final judgment).  To determine when a judgment is considered final, please read this.

Once a final judgment has been entered, the attorney fee award can be contested on appeal along with any other issues.

ATTORNEY FEE AWARDS AFTER JUDGMENT

Attorney fee awards after entry of a final judgment are independently appealable as a “special order after judgment.”  NRAP 3A(b)(8); see also Lytle v. Rosemere Estates Prop. Owners, 129 Nev. 923, 925-26, 314 P.3d 946, 948 (2013).  This means that appeals from these awards must be filed within thirty (30) days of the notice of entry of order awarding attorney fees.  Winston Prods. Co. v. DeBoer, 122 Nev. 517, 525, 134 P.3d 726, 731 (2006).

Like final judgments, the time period to file these appeals can be tolled by a “tolling motion” filed under NRAP 4.  A “tolling motion” includes motions for reconsideration of the attorney fee award.  Id.

AMENDED NOTICES OF APPEAL, AMENDED JUDGMENTS, AND SEPARATE APPEALS

If you receive a final judgment while a motion for attorney fees is still pending, that motion for fees does not toll your time to file an appeal of the final judgment.  You must file within thirty (30) days.

What happens if you appeal a final judgment, only to be hit later with an attorney fee award that you also want to appeal?  It depends on what the district court does.

If the district court amends the final judgment you have already appealed, you must file an amended notice of appeal noting the amended judgment.  But, if the district court simply enters an order awarding attorney fees, or enters a separate judgment, you must file a separate appeal of these awards.  Campos-Garcia v. Johnson, 130 Nev. 610, 611-12, 331 P.3d 890, 891 (2014).  You will be asked to notify the Court of related appeals in both the case appeal statement and the docketing statement, and the Supreme Court Clerk will consolidate these appeals.

DENIAL OF ATTORNEY FEE MOTIONS

The flip side of this coin are those aggrieved by a district court’s denial of a motion for attorney fees.  The rules set forth above generally apply.  If a final judgment has not been entered, you cannot appeal the order denying your request until a final judgment is entered. If you are the respondent, you can file a cross-appeal after final judgment to address the denial of your fees.  If you are the appellant, you simply take the issue up with your other issues on appeal.

If the order is entered after a final judgment, you must file a separate notice of appeal unless you can timely file a cross-appeal.

At the end of the day, you have to pay a lawyer if you want to litigate.  Hopefully, the lawyer you pay is your own.

Protecting Your Pocket: When Attorney Fees and Costs are Recoverable on Appeal

Getting saddled with an appeal after you have won a case  can be a bitter pill to swallow.  Continuing to pay an attorney who you thought you were done paying only rubs into the wound.  Here’s how you might be able to recover attorney fees on appeal.

ATTORNEY FEES ON APPEAL ARE ONLY AWARDED FOR “FRIVOLOUS” APPEALS

A Nevada appellate court will only award attorney fees on appeal if:

  • “an appeal has been frivolously taken or processed in a frivolous manner;”
  • The appeal was filed solely to delay; or
  •  a party abuses and misuses the appellate process for some purpose other than resolving an appeal.

NRAP 38(b).  The Nevada Supreme Court can also award monetary sanctions if it finds that an appeal is frivolous. NRAP 38(a).

Awards of attorney fees on appeal under NRAP 38 are rare.  The appellate courts have substantial discretion to award these fees, and they rarely exercise that discretion.  Bd. of Gallery of History, Inc. v. Datecs Corp., 116 Nev. 286, 288 n.2, 994 P.2d 1149, 1150 n.2 (2000).

An appeal is not frivolous merely because the party lost.  See, e.g., Bobby Berosini, Ltd. v. PETA, 114 Nev. 1348, 1356-57, 971 P.2d 383, 388 (1998); Edington v. Edington, 119 Nev. 577, 588, 80 P.3d 1282, 1290 (2003).

NRAP 38 truly comes into play when the opposing party’s conduct has been dishonest, disruptive, and fails to comply with the rules of appellate procedure.

For example, in Varnum v. Grady, the Nevada Supreme Court imposed monetary sanctions because the appellant failed to abide by five procedural requirements relating to transcripts, record designation and filing fees.  90 Nev. 374, 375-77, 528 P.2d 1027, 1028 (1974).  After the respondent moved to dismiss the appeal, the appellant argued that its counsel should be excused for not following the rules because he was involved in a trial and working on other briefs.  Id.  Needless to say, the Nevada Supreme Court completely rejected the argument, refused to accept counsel’s preoccupation with other cases as a valid excuse, and found that the appellant’s prosecution of its appeal was dilatory and warranted monetary sanctions.  Id.

Sanctions can also be issued against respondents.  In Sobol v. Capital Management Consultants, Inc., the Nevada Supreme Court issued sanctions against the respondent because of its “blatant misrepresentation of the stipulated facts” in its brief, and because it quoted language from a dissent in a case as if it were “the holding of the case.”  102 Nev. 444, 446-47, 726 P.2d 335, 337 (1986).  The Nevada Supreme Court not-so-gently reminded the respondent that it “expect[s] and require[s] that all appeals . . . will be pursued in a manner meeting high standards of diligence, professionalism, and competence.”  Id. (Internal quotations omitted).

The Nevada Supreme Court has also made it clear that a voluntarily dismissed appeal is not automatically “frivolous” so as to warrant an award of attorney fees.  Breeden v. Eighth Judicial Dist. Ct., 131 Nev., Adv. Op. 12, 343 P.3d 1242, 1243 (Nev. 2015).  In Breeden, the Nevada Supreme Court rejected the argument that fees should be awarded under NRCP 42(b) and NRAP 38 for voluntary dismissal of appeals because “courts encourage rather than discourage voluntary, self-determined case resolutions.”  Id.

COSTS ON APPEAL ARE A DIFFERENT STORY

Unlike attorney fees, costs are frequently recoverable on appeal under NRAP 39.

How an appeal is resolved determines who has to pay the costs.  Here’s how Rule 39 works:

  • If the appeal is dismissed, the appellant has to pay the costs unless the parties agree otherwise.
  • If the judgment is affirmed, the appellant has to pay the costs (because they lost).
  • If the judgment is reversed, the respondent has to pay the costs (because they lost).
  • If the judgment is affirmed in part and reversed in part, then costs are only recoverable if the appellate court orders (because everybody won but also lost).

NRAP 39(a).

The costs that you can recover include:

  • Costs of copying for “necessary” copies of briefs and appendixes
  • Costs of roundtrip transportation for oral argument. These are limited to the distance between the district court and the appellate court (i.e., your New York lawyer can’t charge for flying from New York to Vegas).  The costs are further limited to 15 cents per automobile mile or the cost of commercial airfare, whichever is lowest.
  • Preparation and transmission of the record
  • Reporter’s transcript
  • Preparation of appendix
  • Premiums paid for supersedeas or other bonds filed upon appeal
  • The filing fee for the appeal

NRAP 39(c), (e). Costs for copies and transportation are capped at $500.  NRAP 39(c)(5).  For estimation of other appeal costs, read this post.

To recover these costs, you must file an itemized and verified bill of costs with the appellate court within 14 days after the order or opinion is issued.  NRAP 39(c)(3).    The costs are actually awarded in the remittitur.  NRAP 39(d).  If remittitur issues before costs are determined, then the district court adds the statement of costs to the remittitur.  Id. And if you have no clue what “remittitur” is, read this post.

DON’T FORGET OFFERS OF JUDGMENT

If you had fees awarded pursuant to an offer of judgment in the district court, you may be able to recover fees incurred upon appeal under that same offer of judgment.   NRCP 68 “extend[s] to fees incurred on and after appeal.”  In re Estate & Living Tr. of Miller, 125 Nev. 550, 555, 216 P.3d 239, 243 (2009).  Keep in mind, however, that the appellate court’s ruling regarding the offer of judgment on appeal will govern whether you can recover fees because the appellate court’s ruling is the law of the case.  Bd. of Gallery of History, Inc., 116 Nev. at 289, 994 P.2d at 1150.  This means that an order or opinion affirming the award under the offer of judgment only leaves the question of whether your fees incurred on appeal were reasonable.  Likewise, an order reversing the judgment may result in a finding that your offer was unreasonable, and you are not entitled to any fees.

 

 

Havensight v. Nike: Just Do . . . Not Do What Havensight Did.

I wrote last week about the general requirements for a notice of appeal here.  This week, I’m discussing the oversights of Havensight Capital, LLC in its notice of appeal from its lawsuit against Nike, Inc.

HAVENSIGHT HATES NIKE (AND THE FEELING IS PROBABLY MUTUAL)

Havensight is a competitor of Nike who sued Nike for infringement on Havensight’s soccer brand and lost.  Havensight Capital v. Nike, 891 F.3d 1167, 1169 (9th Cir. 2018).  The day after Havensight lost, it filed a new lawsuit against Nike.  Id.

Havensight then engaged in a bunch of procedural shenanigans that would only confuse you if I tried to relay them here.  Basically, Nike was litigating against the equivalent of an angry toddler armed with permanent markers and rocks.  This resulted in the judge dismissing Havensight’s lawsuit, awarding attorney fees and sanctions against Havensight’s lawyer under Rule 11, and denying Havensight’s motion to reconsider these orders.  Id. at 1169-70.

Undeterred, Havensight continued its ineffective barrage of dull objects at Nike, resulting in the court entering an order declaring Havensight a “vexatious litigant,” and awarding Nike more attorney fees.  Havensight then filed an appeal with the Ninth Circuit.  Id. at 1170-71.

HAVENSIGHT’S DEFECTIVE NOTICE OF APPEAL

As I stated here, you must include all orders you intend to challenge on appeal in your notice of appeal.  In Havensight’s notice, it only mentioned the orders dismissing its complaint, and imposing the Rule 11 sanctions.  It did not mention the later orders denying Havensight’s request for reconsideration, imposing additional sanctions, and declaring Havensight a vexatious litigant.  Id. at 1171.

Under FRAP 3, you must state the orders you are challenging on appeal.  FRAP 3(c)(1)(B).  Appellate courts are courts of limited jurisdiction, and they do not have jurisdiction over orders that are not included in the notice of appeal.  Smith v. Barry, 502 U.S. 244, 248 (1992).

Your failure to designate the order might not be fatal to your appeal, if it is clear from the notice of appeal that you intend to challenge the order and you will be prejudiced by your mistake.  West v. United States, 853 F.3d 520, 523 (9th Cir. 2017).

The Ninth Circuit found that it could not infer any intent from Havensight’s notice of appeal to challenge the subsequent orders, and dismissed Havensight’s appeal to the extent it challenged those rulings.  Havensight, 891 F.3d at 1171.

HAVENSIGHT’S UNTIMELY APPEAL

Once judgment is entered, you must file your notice of appeal within thirty days.  FRAP 4(a).  The time to file the appeal can be extended if a post-judgment tolling motion is filed.  FRAP 4(a)(4)(A)(iv).  Motions to alter or amend a judgment under Rule 59 are considered “tolling motions,” and the time to appeal does not run until 30 days after the grant or denial of those motions.  Id.  A motion to reconsider is generally viewed as a Rule 59 motion for purposes of appeal.

In this case, the district court dismissed Havensight’s complaint on February 18, 2015.  Havensight filed a motion for reconsideration the next day, on February 19, 2015.  The court denied that motion on April 22, 2015.  Judgment was entered on July 18, 2015.  Havensight, 891 F.3d at 1172.   Havensight filed its appeal on October 15, 2015.

Apparently, Havensight argued that because it filed a “tolling” motion, it was entitled to an additional sixty-two days to file its appeal after judgment was entered.  The Ninth Circuit rejected this argument because Havensight’s motion for reconsideration was both filed and resolved before judgment was entered.  Id. at 1173.  Because Havensight did not file its appeal by August 17, 2015, the Ninth Circuit dismissed Havensight’s appeal of the order dismissing its complaint as being untimely.  Id. at 1174.

If you still have any doubt as to whether you should specify every order you intend to appeal in your notice of appeal, follow Nike’s lead and JUST DO IT.

The ABC’s of Notices of Appeal

To begin your appeal, you must file a notice of appeal.  NRAP 3; FRAP 3.  Although it seems simple, you can really screw your appeal up if you do not know what the notice of appeal must contain.  Here’s a quick breakdown:

WHO CAN FILE THE NOTICE OF APPEAL

A lawyer with client authority

Generally, your counsel (or yourself, if you are unrepresented and appearing pro se) files the notice of appeal.  However, an attorney cannot file a notice of appeal on your behalf without your consent.  The Comm’n on Ethics of the State of Nev. v. Hansen, 134 Nev., Adv. Op. 40, 419 P.3d 140, 142 (Nev. 2018).  If your attorney files a notice of appeal on your behalf before you have given them consent, the notice of appeal is defective. Id.

Hansen is the most recent decision of the Nevada Supreme Court to address effective notices of appeal.  Hansen involves the tragic tale of poorly placed hunting traps, two assemblyman, one self-proclaimed “local watchdog,”  the Nevada Commission on Ethics, and a partridge in a pear tree.  Id. at 140.

In a crazy plot twist, the partridge was not snared by the traps.  Instead, the assemblyman who placed them was snared, or cited, by the Nevada Department of Wildlife for violating a statute regarding their placement.  After his fellow assemblyman requested a Legislative Counsel Bureau opinion as to whether the traps violated the statute, a local watchdog then filed an ethics complaint against both men with the Commission for allegedly abusing their positions.   Id. at 140.

After the Commission refused to dismiss the ethics complaint, the assemblymen filed a petition for judicial review.  Id.  The district court agreed that the ethics complaint should be dismissed.  Id.  The Commission did not, and filed a notice of appeal.  Id.

When I say “Commission,” I actually mean the Commission’s counsel filed the notice of appeal, and he did so after only consulting with the chair and executive director rather than the entire Commission.  Id.  When you are a lawyer, and you represent an organization, the entire organization is the client.  NRPC 1.13(a).

In Hansen, the Nevada Supreme Court dismissed the appeal because the “client,” i.e., the Commission, did not give the attorney authorization prior to filing the notice of appeal.  Id. at 142.  The Court reasoned that an appeal is a decision that a public body must hold a public meeting and vote upon because it requires commitment of public funds.  Id.  Since that did not happen prior to filing the notice of appeal, the Court dismissed the appeal for being defectively noticed.  Id.

Multiple parties with common interests on appeal

With authority, your attorney can file a notice of appeal on your behalf.  If you are an attorney who represents multiple clients, you can file a “joint notice of appeal.”  NRAP 3(b)(1); FRAP 3(b)(1).  If you have co-parties whose interests are aligned with yours but who are represented by separate counsel, you can also file a joint appeal.  Id.  On appeal, the parties will be treated as individual appellants. Id.   You can also file separate notices of appeal, and seek consolidation or joinder.  NRAP 3(b)(2); FRAP 3(b)(2).

WHAT HAPPENS IF YOU SCREW UP THE NOTICE OF APPEAL 

Even if you screw up the notice of appeal, the district court clerk must still file it and notify the Nevada Supreme Court, and the Nevada Supreme Court clerk must accept it and assign it an appeal number.  NRAP 3(a)(2)-(3).  The Ninth Circuit does not require the same of its courts, and a procedurally defective notice of appeal may result in immediate dismissal without prejudice.  See FRAP 3.

The only court that can dismiss an appeal for a defective notice of appeal is the appellate court, not the district court.  The district court’s obligation is to keep a clear record of the case, including any deficiency in the notice of appeal.  Whitman v. Whitman, 108 Nev. 949, 951, 840 P.2d 1232, 1233 (1992).  While the district court should inform the appellant of procedural deficiencies, it must still file the notice of appeal. Id.

WHAT YOU NEED TO INCLUDE IN THE NOTICE OF APPEAL 

The notice of appeal needs to include three main items:

1.  The Identity of the Parties on Appeal 

The notice of appeal should designate the appellant, the respondent, and any other interested parties.  NRAP 3(c)(1)(A); FRAP 3(c)(1)(A).  If you have counsel, the notice of appeal should also state which parties that attorney represents on appeal. Id.

2.  The Judgment or Order Being Appealed 

This is the most important thing to include in your notice of appeal.  Any “appealable judgment or order that is not designated in the notice cannot be considered on appeal.”  Abdullah v. State, 129 Nev. 86, 91, 294 P.3d 419, 422 (2013).  If you leave it out, you have not appealed it.  Always identify all orders and judgments on appeal.  NRAP 3(c)(1)(B); FRAP 3(c)(1)(B).

3.  The Court To Which You Are Appealing 

You must state the court to which you hope to appeal.  NRAP 3(c)(1)(C); FRAP 3(c)(1)(C). This is very simple. In Nevada, all appeals are first filed in the Nevada Supreme Court.  If you appeal from district court, you simply have to state you are appealing to the Nevada Supreme Court.  Once the appeal is docketed, and your briefs are filed, the Nevada Supreme Court will determine whether to assign the case to the Court of Appeals.  NRAP 17.

In the Ninth Circuit, your appeal will almost always go to the Ninth Circuit Court of Appeals.

HOW YOU FILE A NOTICE OF APPEAL

Your notice of appeal must be filed with the district court clerk.  NRAP 3(d); FRAP 3(a).  In Nevada, you must serve a copy on all other parties by either mailing it to their last known address, or their lawyer.  NRAP 3(d)(1).  In the Ninth Circuit, the federal district court clerk must serve the notice on all parties.  FRAP 3(d)(1).  If the federal district court clerk fails to serve the notice of appeal, your notice of appeal is still effective.  FRAP 3(d)(3).

 

What Court Will Hear Your Appeal? An Overview of Nevada’s Appellate System

A typical appellate court system has three courts:  a lower court (district court), a court of appeals (the Nevada Court of Appeals or, in federal court, the Ninth Circuit Court of Appeals), and a supreme court (the Nevada Supreme Court or the United States Supreme Court). In a typical system, your appeal would go to the next court.  If you appeal from district court, you go to the intermediate appellate court.  If you appeal from the intermediate appellate court, you go to the supreme court and hope it accepts your appeal.

Nevada is not a typical appellate court system.  To understand which court will hear your appeal, you need to know the following:

THE HISTORY OF NEVADA’S APPELLATE COURTS

Nevada did not get an intermediate court of appeals until January 2015.  Prior to 2015, all appeals went directly to the Nevada Supreme Court.  Because that was the only appellate court in Nevada, the Nevada Supreme Court heard every appeal.  And because Nevadans were spoiled by having their supreme court hear all of their appeals, they were reluctant to vote for the creation of an intermediate appellate court.

As a result, the Nevada Supreme Court was buried in appeals with a massive back log of cases, and litigants were constantly complaining about how long an appeal took to process.

The solution was to create an intermediate appellate court that did not automatically hear every appeal, but that could hear those appeals which are inherently time sensitive.  Thus, the Nevada Court of Appeals was born.

Despite the creation of the Court of Appeals, every appeal is still filed with the Nevada Supreme Court.  The Supreme Court then “pushes down” certain categories of appeals to the Court of Appeals.

CASES THAT ARE PRESUMPTIVELY HEARD BY THE NEVADA COURT OF APPEALS:

Under NRAP 17(b), the categories of appeals that are presumptively assigned to the Court of Appeals are:

  • Criminal appeals in criminal cases that do not involve the death penalty, or conviction of a category A or B felony unless the challenge is to the sufficiency of the evidence or the length of the sentence.
  • Appeals from judgments in torts cases where the amount of the judgment is less than $250,000 (this does not include attorney fees and costs);
  • Appeals from judgments in contract cases where the amount at issue is less than $75,000;
  • Appeals from “postjudgment” orders in civil cases (i.e., attorney fees, new trials, motions to amend the judgment, etc.)
  • Appeals from cases involving statutory liens under NRS Chapter 108 (i.e., mechanics’ liens and other similar liens);
  • Appeals from administrative agency decisions, excluding decisions by Nevada’s taxing and water agencies, and/or the public utilities commission.
  • Family law appeals, except for proceedings for termination of parental rights or proceedings under NRS Chapter 432B;
  • Interlocutory appeals on motions for change of venue;
  • Interlocutory appeals from the grant or denial of an injunction;
  • Writ petitions challenging discovery orders or motions in limine;
  • Appeals from probate court (trust and estate litigation) if the estate or trust has less than $5,430,000 in value; and
  • Appeals from the foreclosure mediation program.

There are certain benefits to having a case presumptively assigned to the Court of Appeals.  For example, the Court of Appeals’ case load is slightly less than the Nevada Supreme Court’s, which means that your appeal may be resolved faster.

Furthermore, assignment to the Court of Appeals will not unduly delay the litigation.  An assignment to the Court of Appeals does not mean that you or your opposing party automatically gets a second appeal to the Nevada Supreme Court.  Any appeal to the Nevada Supreme Court from the Court of Appeals will only be accepted on a petition filed under NRAP 40B, and the acceptance of these appeals is purely discretionary with the Nevada Supreme Court.

WHAT CASES ARE PRESUMPTIVELY HEARD BY THE NEVADA SUPREME COURT

Under NRAP 17(a), the Nevada Supreme Court presumptively hears the following cases:

  • Cases involving the death penalty;
  • Cases governing ballot or election questions;
  • Cases involving judicial discipline.
  • Cases involving attorney admission and discipline;
  • Cases involving approval of prepaid legal service plans;
  • Questions of law certified by a federal court under NRAP 5;
  • Appeals from Nevada’s tax and water agencies, and the public utilities commission;
  • Family law appeals involving termination of parental rights or that arise under NRS Chapter 432B;
  • Appeals that raise an issue of first impression (and particularly, those raising issues of first impression regarding a constitutional question)
  • Appeals that raise an issue of statement public importance;
  • Appeals that raise an issue in which there is a split of authority between published decisions coming out of two courts (i.e., state and federal), or the Court of Appeals and the Nevada Supreme Court.

The Nevada Supreme Court may also retain cases which are not presumptively assigned to the Court of Appeals, even if these appeals are not presumptively retained by the Nevada Supreme Court.  Did that confuse you?  If your appeal doesn’t fall within any of the categories contained in NRAP 17(a)-(b), there is a chance it will remain with the Nevada Supreme Court.  Remember, however, that the assignment of cases is discretionary and that discretion rests with the Nevada Supreme Court.  Once the Nevada Supreme Court assigns a case to the Court of Appeals, you cannot seek re-assignment to the Nevada Supreme Court. NRAP 17(d).

ROUTING STATEMENTS

When you file your brief or writ petition, you must include a NRAP 17(d) routing statement that identifies the court you believe should hear the appeal.  In the statement, you must include whether the appeal falls within cases presumptively assigned to either court under NRAP 17(a)-(b).  If your case involves an issue of first impression, an issue of statewide public importance, or seeks a resolution to a split of authority, you should identify that in your NRAP 17 routing statement.  The Nevada Supreme Court is not omniscient.  They cannot be expected to know the full landscape of the law if litigants do not inform them of the need for a decision on certain issues.

Remember, as well, that even if your case is presumptively retained by the Nevada Supreme Court, you can always request assignment to the Court of Appeals in your NRAP 17 routing statement.

If your case has been assigned to the Court of Appeals, you will receive notification from the Nevada Supreme Court under NRAP 17(e).

If all this confuses you, just remember this one thing:  Your appeal will go up, and someone in a robe is probably going to decide it.