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You Won, Now What? Time Periods for Litigating Upon Remand

In Nevada, a case must be dismissed if it is not brought to trial within five years from the date it was filed.  NRCP 41(e).  Although dismissal is mandatory, the district court has discretion to dismiss with or without prejudice.  See NRCP 41(e); see also Harvey’s Wagon Wheel, Inc. v. Van Blitter, 959 F.2d 153, 156 (9th Cir. 1992).

There is a different timeline to bring a case to trial after an appeal.  When an appeal is taken, and the matter is remanded, the plaintiff has three years to bring the action to trial.  NRCP 41(e).

Three Years from What Date?

The three-year date runs from the date that remittitur is issued, not the date of the order of remand.  NRCP 41(e).

If a stay is in effect pending the appeal, the three-year deadline will not commence if the stay prevents the parties from immediately bringing the action back into active litigation before the district court upon remittitur.  Duke v. Simon, 124 Nev. 1464, 238 P.3d 808 (2008).  For example, in Duke, the appellant won and the matter was remanded.  However, the appellant had obtained a stay pending appeal of a set amount of time.  That stay wound up being in effect 280 days after remittitur was issued.  Once the stay was lifted, the clock on the three-year deadline began ticking.  Id.

Three Years from an Appeal vs. Three Years from a Writ

 A party who successfully takes a matter up on a writ does not get an extra three years to bring the action to trial under Rule 41(e).   The three-year deadline only applies to appeals, not writ petitions.  Monroe v. Columbia Sunrise Hosp. & Med. Ctr., 123 Nev. 96, 102, 158, P.3d 1008, 1011-12 (2007).  NRCP 41(e)’s five-year deadline applies when the matter is taken up on a writ.  Id.   Keep in mind that appellate review of a writ petition can take up to one year (or more).  Additional reasons why you may want to just wait to appeal are listed HERE.

Bring to Trial v. Deciding an Issue

Finally, the Nevada Supreme Court has made it clear that when Rule 41(e) says “trial” it means “TRIAL.”  Sort of.  It means all claims are resolved. Even if one claim is tried or litigated via dispositive motion work within the three-year period, the other claims must still be dismissed.  Allyn v. McDonald, 117 Nev. 907, 910, 34 P.3d 584, 586 (2001).

The Nevada Supreme Court has also made it clear that it will uphold dismissals even if there are equitable circumstances which would otherwise warrant reversal of the district court’s dismissal.  Id.  Rule 41(e) dismissals are mandatory, not discretionary.  The plaintiff, not the district court, is the one who filed the case and the one who assumes the responsibility to ensure that all crucial dates are met.  Id.  

The moral of this story is to remember your deadline for trying the case.  If you went up on appeal, it is three years from the date of remittitur.  If you went up on a writ, you had better get it done five years from the date of filing.

Remand: When What Goes Up, Comes Back Down

If you are an appellant, your goal on appeal is usually to obtain “remand.”  Remand occurs when the appellate court reverses the order you complained about and sends the case back to the lower court for proceedings consistent with the appellate court’s decision.

How does it work?  Here’s what you need to know

ONCE YOU APPEAL, THE LOWER COURT CANNOT MAKE ANY FURTHER DECISIONS ON THE ISSUES YOU HAVE APPEALED

When you appeal an order or decision, the lower court loses “jurisdiction” (i.e., the ability to make decisions) over the issues contained in that order or ruling.  The appellate court is now the only court which can decide those issues.  You then go through the appellate process, and the appellate court renders its decision.  Once the appellate court has rendered its final decision, it still has jurisdiction over the matter until “remittitur” issues.  “Remittitur” is a fancy word for a piece of paper that is sent back to the lower court which states “We’re done.”

If the appellate court affirms the lower court’s findings, remittitur usually means “We are ALL done.”  But, if the appellate court reverses, remittitur becomes “remand,” and “remand” means “We’re done.  You can have it back now.”

ON REMAND, THE LOWER COURT HAS TO FOLLOW THE DECISION OF THE APPELLATE COURT. 

On remand, the appellate court will usually give the lower court a mandate on what needs to be done to fix the error the appellate court found.  This will vary depending on what the issues are, and what the appellate court ruled.  For example, an appeal regarding trial error may be remanded for an entirely new trial.  But, an appeal regarding a legal issue may only be remanded for the lower court to issue a new order consistent with the appellate court’s findings.

On remand, the lower court must proceed as directed by the appellate court.  State Eng’r v. Eureka Cnty., 133 Nev., Adv. Op. 71, 402 P.3d 1249, 1251 (Nev. 2017).  If the appellate court makes a finding as to what the law is, or how the law should be applied, the lower court must apply it that way.  Id.  This is called the “law of the case” doctrine.  Id.

Law of the case only applies if the appellate court actually addressed and decided the legal issue.  Estate of Adams v. Fallini, 132 Nev., Adv. Op. 81, 386 P.3d 621, 624 (2016).  If the appellate court did not address the issue and the matter is remanded, the issue is fair game for the lower court.   Sometimes, this is an easy determination.  The Nevada Supreme Court frequently remands matters with orders or opinions in which the Court expressly states that it is deciding one particular issue and is not reaching or rendering a decision on another issue or argument.  When that happens, those issues or arguments are fair game in the lower court unless a decision on those would change the appellate court’s decision.  If a decision would affect an appellate court ruling, the issue is determined to be decided by “necessary implication” and may not be considered by the lower court.  Estate of Adams, 386 P.3d at 624.

HOW IT REALLY WORKS

On remand, the lower court must do whatever it was directed to do (or not do) by the appellate court.  The procedure following this will vary depending on the circumstances of the case and the issues of the appeal.

Sometimes, remand is black and white.  Most of the time, it is a shade of very confusing gray.  Here’s how to decipher some of the most common orders on remand:

1.    The lower court is reversed on a legal issue.   This means that the lower court must apply the law as the appellate court found it should be applied, interpreted, etc.  No further argument can be made.

2.     The lower court is reversed on a legal issue and remanded for further findings consistent with the appellate court’s order. This commonly happens in areas where the application of the law depends on “factors.”  If the lower court considered the wrong factors, or did not consider any factors at all, the lower court will have to (1) apply whatever factors (or their application/interpretation) it is directed to by the appellate court, and (2) render its own decision on the matter.  This means the litigants might be able to make further argument and/or present additional evidence.

3.    The lower court is reversed on a factual finding. Generally, the lower court must make the finding of fact that the appellate court states is the proper finding.  However, sometimes this means that additional argument or evidence needs to be presented.

4.   The lower court is reversed on one issue, and the appellate court states it need not reach the merits of the remaining arguments or other issues. This is called “leaving a matter open.”  Although the matter (issue) was argued and considered on appeal, the appellate court never addressed it.  These matters are usually fair game.

Remand is the goal when you appeal, but it is not the end of the story.  Pay close attention to what was ordered upon remand.  Because what goes up, only sometimes comes back down.