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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.

Wait, Writ What? A Crash Course in Appellate Writs

A writ petition is, basically, an early appeal.  Attorneys love to file writ petitions while the case is still going because, in their mind, they don’t have to wait until the bitter end to prove the judge wrong.  Unfortunately, you cannot take anything and everything up on a writ.   Understanding how and when writ relief is appropriate will save you time and your clients money.

WHO CAN FILE A WRIT PETITION

Any party to the proceeding can file a writ petition.  Writ relief is also available to non-parties.  Only parties to the litigation have the right to appeal.  See NRAP 3A.  Thus, writ relief is the only avenue of appellate review for non-parties aggrieved by orders.

Writ relief is the only appellate remedy for attorneys who wish to challenge (1) orders disqualifying counsel, Nev. Yellow Cab Corp. v. Eighth Jud. Dist. Ct., 123 Nev. 44, 49, 152 P.3d 737, 740 (2007), and (2) orders issuing sanctions. Watson Rounds v. Eight Jud. Dist. Ct., 131 Nev., Adv. Op. 79, 358 P.3d 228, 231 (Nev. 2015).  Although they represent parties, an attorney is not a “party” to the litigation who can appeal these orders.  Emerson v. Eighth Judicial Dist. Ct., 127 Nev. 672, 676, 263 P.3d 224, 227 (2011).

Writ relief is also the appropriate remedy for disqualification or peremptory challenges to judges.  See Ivey v. Dist. Ct., 129 Nev. 154, 159, 299 P.3d 354, 357 (2013); Morrow v. Dist. Ct., 129 Nev. 110, 112, 294 P.3d 411, 413 (2013).

For other non-parties, writ relief is the appropriate appellate remedy for orders compelling non-party witnesses to appear and/or participate at trial or in discovery, Quinn v. Eighth Jud. Dist. Ct., 134 Nev., Adv. Op. 5, 410 P.3d 984, 987 (Nev. 2018), and denial of a motion to intervene.  Hairr v. First Jud. Dist. Ct., 132 Nev., Adv. Op. 16, 368 P.3d 1198, 1200 (Nev. 2016).

WHAT TYPE OF WRIT PETITION YOU SHOULD FILE.   

There are two main types of writ petitions available to civil practitioners:  (1) mandamus; and (2) prohibition.  A writ of mandamus is used to order the district court judge to do something.  Aspen Fin. Servs., Inc. v. Eighth Jud. Dist. Ct., 129 Nev. 878, 881, 313 P.3d 875, 877 (2013); see also NRS 34.160.   In contrast to mandamus, a writ of prohibition seeks to prevent the district court from doing something.   Sandpointe Apartments v. Eighth Jud. Dist. Ct., 129 Nev. 813, 817, 313 P.3d 849, 852 (2013); see also NRS 34.320.

You should file a writ of mandamus for the following:

(1)  Challenges to the district court’s discretion in imposing sanctions on a party.  City of Sparks v. Second Judicial Dist. Ct., 112 Nev. 952, 953 n.1, 920 P.2d 1014, 1015 n.1 (1996)

(2)  Issues of law that need clarification (from any form of order – dismissal, summary judgment, etc.).  Paley v. Second Judicial Dist. Ct., 129 Nev. 701, 703, 310 P.3d 590, 592 (2013).

(3) A district court’s refusal to exercise jurisdiction over a party, or the subject matter of the litigation.  Amezcua v. Eighth Judicial Dist. Court of State ex rel. Cnty. of Clark, 130 Nev., Adv. Op. 7, 319 P.3d 602, 603 (2014); State, Through Miller v. Eighth Judicial Dist. Court In & For Clark Cnty., 97 Nev. 34, 35, 623 P.2d 976 (1981).  Mandamus is particularly appropriate for orders quashing service of process.  Jarstad v. Nat’l Farmers Union Prop. & Cas. Co., 92 Nev. 380, 383-84, 552 P.2d 49, 51 (1976).

You should file a writ of prohibition for the following

(1)  Orders requiring improper discovery. Quinn, 134 Nev. at ___, 410 P.3d at 987 (Nev. 2018).  Writs of prohibition are the favored procedural vehicle “to correct an order that compels disclosure of privileged information.”  Wynn Resorts, Ltd. v. Eighth Jud. Dist. Ct., 399 P.3d 334, 341 (Nev. 2017).

(2) Orders denying motions to quash service of process, or involving the exercise of jurisdiction which the district court lacks. Grupo Famsa v. Eighth Jud. Dist. Ct., 132 Nev., Adv. Op. 29, 371 P.3d 1048, 1050 (Nev. 2016).

WHEN YOU SHOULD FILE YOUR PETITION. 

A writ petition can be filed at any time, and there is no specific time by which one must be filed.  See NRAP 21.  This does not, however, mean that you can sit on your writ forever.  “Writ relief is subject to laches.”  State v. Eighth Judicial Dist. Ct. (Anzalone), 118 Nev. 140, 147-48, 42 P.3d 233, 238 (2002).  Laches bars writ relief if (1) “there was an inexcusable delay in seeking the petition,” (2) “an implied waiver arose from the petitioner’s knowing acquiescence in existing conditions,” and (3) the delay prejudiced the respondent.  Id. at 148, 42 P.3d at 238. A petitioner who is aware of their right to bring a writ petition and who offers no convincing explanation for their delay in doing so has inexcusably delayed seeking writ relief.  Bldg. & Constr. Trades Council of N. Nev. v. State, 108 Nev. 605, 611, 836 P.2d 633, 637 (1992).

WHERE YOU FILE YOUR PETITION. 

All writ petitions are initially filed with the Nevada Supreme Court.  See NRAP 21.  The petition can be heard by either the Nevada Supreme Court or the Nevada Court of Appeals.  You must include an NRAP 17 statement in the petition that identifies the court to which the issues should be directed.

WHY YOUR WRIT PETITION MAY BE GRANTED OR DENIED.

Writ relief is not a guarantee.  Writ relief is viewed as an “extraordinary remedy” that is only available if your alleged injury cannot be rectified by a subsequent appeal.  See NRS 34.170; NRS 34.330; see also Aspen Fin. Servs., Inc., 313 P.3d at 877-78.  90% of the time, your writ petition will be denied because you can eventually appeal from the order of which you now complain.

Occasionally, however, the appellate courts will agree to hear a writ petition even if the issue can be resolved in a later appeal.  The Nevada Supreme Court is particularly likely to consider the writ if you can demonstrate that resolution of the issues will promote judicial economy, clarify the law, and/or eliminate other, related litigation.  Yellow Cab of Reno, Inc. v. Second Judicial Dist. Court of State ex rel. Cnty. of Washoe, 127 Nev. 583, 589, 262 P.3d 699, 703 (2011); Williams v. Eight Judicial Dist. Court of State, ex rel. Cnty. of Clark, 127 Nev. 518, 525, 262 P.3d 360, 365 (2011).

These instances are rare.  Unless your issue falls into one of the topic areas listed above, it may be worth saving your time and your client’s money to wait for the appeal.

HOW YOUR WRIT PETITION SHOULD LOOK.  

When you file a writ petition you are the “petitioner,” the district court judge is the “respondent” and your opposing party is the “real party in interest.”  NRAP 21(a)(1).  Your caption should identify the parties in that manner. You have to serve the petition on the district court and your opposing party, as well as a file a notice of writ petition with the district court.  As with appeals, the district court has discretion whether to stay the litigation pending resolution of the writ proceeding.

Your writ petition must set forth: (1) the relief you are seeking, (2) the issues you want decided, (3) the facts necessary for the appellate court to understand the issues, and (4) legal argument as to why the appellate court should grant your writ.  NRAP 21(a)(3).  Writ petitions must be verified, i.e., signed under oath.  NRAP 21(a)(4).  And you should probably include some argument as to why your issue is appropriate for writ relief.

Unlike an appeal, the opposing party may not get a chance to respond.  The appellate court can deny your writ petition without an answer.  NRAP 21(b)(1).  If it determines that an answer is warranted, the appellate court will order the real party in interest, and sometimes the judge, to respond.  NRAP 21(b)(1); NRAP 21(b)(4).  Once the real party in interest responds, you may be asked for a reply, or the court may simply take the writ under consideration.

Writ petitions have to comply with the same formatting requirements as appeal briefs.  NRAP 21(d).  You also have to submit an appendix which complies with Rule 30.  NRAP 21(a)(4).

SO, WILL YOU FILE? 

My rule of thumb regarding writs is only to file if necessary.  Sometimes your client will believe it is necessary against your advice.  Sometimes, you will believe it is necessary only to have the Supreme Court dismiss your petition.  But it is important to know that writ petitions are not simply an appeal on steroids.  You are not automatically granted the right to interlocutory appellate review.

Class Action Certification Appeals and Cobra Sexual Energy

What do class action certification appeal deadlines and an over-the-counter supplement called “Cobra Sexual Energy” have in common?  A poor consumer who created new law in the Ninth Circuit after discovering that his sexual supplement did not, um, perform as expected.

Enough People Were Duped by Cobra Sexual Energy to File a Class Action Lawsuit . . . Allegedly.  

Some guy named Lambert filed a “class action” lawsuit against the manufacturers of the supplement Cobra Sexual Energy after the supplement did not provide the advertised (and, I guess, desired) “animal magnetism” and “potency wood.”  Class action lawsuits are lawsuits in which the defendant has allegedly harmed such a large number of people that the “class” – or every individual plaintiff – cannot easily be determined. FRCP 23(a); NRCP 23(a). One (or two, or five, etc.) plaintiffs who have come forward are designated to be representatives of the “class” and sue on behalf of those harmed.

To turn a lawsuit into a class action, the plaintiff(s) have to get “certified” as a class by the Court. NRCP 23(c); FRCP 23(c). Once a class has been “certified,” it can always be “de-certified” if the court later determines that the lawsuit is more appropriate as a traditional lawsuit rather than a class action.  FRCP 23(c)(1)(C); NRCP 23(c)(1).

That is precisely what happened to Lambert. His lawsuit was first certified as a class action, and then later de-certified by a new judge.  Lambert appealed.

This is the part where the lawsuit gets significantly less interesting for those who are not appellate lawyers (or class action practitioners).

Interlocutory Appeals from Class Action Certifications

Generally, you have to wait until the bitter end of a case before you can appeal. However, some rules allow for “interlocutory,” or mid-case appeals. FRCP 23(f) permits a party to petition the Ninth Circuit for interlocutory review of an order certifying or decertifying a class action. These appeals must be filed within 14 days of the order certifying or decertifying the class.  Id.  Nevada does not have a reciprocal rule.

It seems like a fairly straightforward rule, but it is not. As Lambert learned, the 14-day deadline to file the appeal can be “tolled,” i.e., expanded.

In the Ninth Circuit, the 14-day Deadline Under FRCP 23(f) May Be Equitably Tolled

The general consensus among the various court is that time limitations contained in rules are merely procedural, whereas time limitation contained in statutes are generally jurisdictional (i.e., the court cannot hear the case if the time limitations are not followed).  This means that time deadlines found in rules can be expanded under certain circumstances.  Relying on this line of authority, the Ninth Circuit concluded that FRCP 23(f)’s 14-day appeal deadline is not jurisdictional, and can be expanded.  Lamber v. Nutraceutical Corp., 870 F.3d 1130 (9th Cir. 2017).

Generally, with any appeal, filing a motion for reconsideration will “toll” the time in which an appeal must be filed if the motion is filed before the deadline to appeal.  The Ninth Circuit reasoned that it should be no different for interlocutory appeals under FRCP 23(f).  Lambert filed a motion for reconsideration, but he did not file it within the 14-day deadline.

Fortunately for Lambert, deadlines can also be expanded for “equitable” (i.e., fair) reasons.  To determine whether FRCP 23(f)’s 14-day deadline should be expanded for equitable reasons, the Ninth Circuit will consider whether (1) the appellant was diligent in pursuing their rights, (2) external circumstances prevented the appeal from being timely filed, and (3) the appellant filed something that was similar to filing a motion for reconsideration within the 14-day deadline.  Lambert, 870 F.3d at 1177-78.

According to the Ninth Circuit, Lambert met all of these factors.  First, he communicated his intention to file a motion for reconsideration at a hearing that took place ten days after the court order (and within the 14-day deadline).  Second, the district court instructed Lambert to file his motion within ten days, giving him twenty days from the date of the order.  Lambert complied.  Finally, Lambert filed his Rule 23(f) petition within fourteen days after his motion for reconsideration was denied.

The moral of Lambert’s story is that sometimes appellate filing deadlines are not so much rules as they are guidelines.  You should still try to comply with them, however.  Not all of us are as sympathetic of appellants as poor Lambert, the guy who just wanted to experience the sexual energy of a cobra and instead experienced…something less.