Clark County Bar Association - Communique-August 2012

Communiqué

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Communique-August 2012

The August 2012 issue of Bar Journal Communiqué Focused on Appeals

AUGUST 2012 ARTICLES

The Huneycutt Remand—An Important Tool for Obtaining Post-Judgment Relief

The Nevada Supreme Court 101: A Practitioner’s Guide to the Nevada Supreme Court’s Internal Operating Procedures

PUBLICATION INFORMATION: The Communiqué publishes timely articles to keep attorneys abreast of current CCBA events and trends with scholarly articles, features, CCBA news and event calendars. Space is available for businesses to showcase their services or products.

Get more information on this publication on the Communiqué page or by calling the Clark County Bar Association at (702) 387-6011.

COVER IMAGE: The photo on the cover of the August 2012 issue of Communiqué is courtesy of Bill Gang, Nevada Supreme Court. Graphic design and layout by Steph Abbott.

The Huneycutt Remand—An Important Tool for Obtaining Post-Judgment Relief

By Stacy D. Harrop

© 2012 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (August 2012, Vol. 33, No. 8). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

—You’ve filed a motion for reconsideration or a NRCP 60(b) motion to modify or amend the judgment, but, before the district court can act to grant that request, an appeal is filed because those motions do not toll the time to file an appeal. What can you do so that the district court’s grant of relief is effective?

—You’ve appealed what purports to be a final judgment, but the Nevada Supreme Court issues an order to show cause why the appeal should not be dismissed because the judgment fails to expressly dispose of all of the parties or causes of action. What can you do to correct the judgment without having to start the appeal process over?

—While on appeal some other unforeseen circumstance occurs that would affect the judgment in your favor if only the district court had jurisdiction to consider it. What can you do to get a the matter considered and possibly avoid a lengthy appeal process on the original judgment?

The answer to these dilemmas is to seek a Huneycutt remand from the Nevada Supreme Court, a procedure for getting jurisdiction back in the district court to alter, amend, or even vacate an appealed-from judgment.

What is a Hunneycutt remand?

In general, “a timely notice of appeal divests the district court of jurisdiction to act and vests jurisdiction in the [Nevada Supreme Court].” Mack-Manley v. Manley, 122 Nev. 849, 855 138 P.3d 525, 529 (2006). The district court only retains jurisdiction “to enter orders on matters that are collateral to and independent from the appealed order, i.e. matters that in no way affect the appeals’ merits.” Id. at 530. However, there are times that a party may wish to correct, alter, amend, or even vacate a judgment that is the subject of an appeal because the district court has indicated it would grant that request if only it had jurisdiction to do so. The Nevada Supreme Court has a procedure that allows a party to request a remand back to the district court to take actions that affect the judgment on appeal. This process can result in the appeal being dismissed or mooted, or it can result in only a temporary remand back to the district court, depending upon the relief being requested. This is the Huneycutt remand, named for the case in which the Court outlined this procedure—Huneycutt v. Huneycutt, 94 Nev. 79, 575 P.2d 585 (1978).

Why use the Huneycutt remand?

The Huneycutt remand is most appropriate when a motion for reconsideration or a motion to alter or amend the judgment under NRCP 60(b) has been filed, but the district court has not had an opportunity to act prior to a notice of appeal being filed. Neither a motion for reconsideration nor a NRCP 60(b) motions toll the time for appeal, so it is often the case that a notice of appeal will have to be filed before the district court can act. However, that notice of appeal divests jurisdiction from the district court. Even if the district court would have granted the relief sought, maybe even mooting the need for an appeal, without jurisdiction the district court is powerless to do anything. Asking the Nevada Supreme Court for a Huneycutt remand solves this problem and supports the policy for judicial efficiency and avoiding unnecessary appeals.

The remand can also be used in other situations because it is available anytime a party seeks to alter the judgment appealed from in some manner. For example, if the judgment contains a technical error or fails to expressly dispose of all parties or claims in the action, a party could seek a remand to obtain a corrected judgment and avoid a potential jurisdictional issue in the Nevada Supreme Court that could cause the appeal to be dismissed. The corrected judgment can then be made part of the pending appeal through an amended notice of appeal. There are many other situations that could arise where seeking a Huneycutt remand would be appropriate. Anytime a case is on appeal and the district court indicates it would take action in your favor, if only it had jurisdiction, consider seeking a Huneycutt remand as a means to accomplish your client’s goals.

How is a Huneycutt remand requested??

To obtain a Huneycutt remand, the first step is to file the motion for relief you are seeking in the district court. Although the district court lacks jurisdiction to grant the motion, it retains the power to direct briefing on the issue and hold a hearing. The district court can then either deny the motion, or it can certify that it would grant the relief requested if the Nevada Supreme Court were to remand the case. Foster v. Dingwall, 126 Nev. Adv. Op. 5, 228 P.3d 453, 455 (2010).

If the district court certifies that it would grant the requested relief, the next step is to file a motion for remand in the Nevada Supreme Court to which the district court’s certification is attached. The motion should specifically seek a remand for entry of an order that grants the requested relief as provided in the certification. If that relief would moot the issues on appeal, the better practice is to also request that the Court dismiss the appeal at the same time. Whether to grant or deny a request for remand lies completely within the discretion of the Court, and it will not simply rubber-stamp such requests. Typically, however, the Court has granted Huneycutt remand requests if the required certification from the district court is first obtained, even when the other party to the appeal opposes the request. The Court will refuse to exercise its discretion to remand the matter when the district court intends to grant a request on remand that would be contrary to law or the motion made below seeking relief was untimely. Foster, 228 P.3d at 455–57. This is an important point to remember if you are on the opposing end of a request for remand, which could result in your appeal being mooted or dismissed—you are not constrained to just attacking the remand procedure sought, you can also attack the legal basis for the district court’s certification.

The Huneycutt remand procedure is a tool every litigator should keep in their post-judgment toolbox, as it provides for an important way to obtain an all-important alteration, amendment, or even vacation of a judgment after an appeal has been filed. It can be used to effect a much more efficient resolution to issues underlying the appeal or to correct a non-final judgment, as long as the district court agrees, which can makes both clients and judges happier.

Stacy D. Harrop is an associate at the law firm of Cotton, Driggs, Walch, Holley, Woloson & Thompson and practices in the areas of appellate and civil litigation, with an emphasis in the natural resources and eminent domain fields. Ms. Harrop received her J.D., magna cum laude, from the Northwestern School of Law of Lewis & Clark College in 2002, where she also earned a Certificate in Environmental and Natural Resources Law.

The Nevada Supreme Court 101: A Practitioner’s Guide to the Nevada Supreme Court’s Internal Operating Procedures

By Jeff Silvestri and Seth T. Floyd

When attorneys file an appeal, often the first question clients (and attorneys new to the appellate process) ask is how long will it take for the court to decide the case? This question can be a difficult one to answer because many variables affect the time to disposition of an appeal. This article aims to provide some guidance and some certainty for nervous clients (and attorneys), and to provide some tips for how counsel can assist in reducing the time it takes the Nevada Supreme Court to dispose of an appeal.

Contrary to popular opinion, the court actually disposes of appeals quite quickly considering its caseload. In 2011, approximately 2,395 cases were filed. Of those, more than half were disposed of in six months or less from the time the case was docketed, and more than three-quarters were decided in one year or less. Of the remaining cases, the time to disposition varies from one to three years.

There are essentially two factors that determine how long it will take for the Nevada Supreme Court to dispose of an appeal: (1) the time it takes for counsel to complete briefing (and a settlement conference for civil cases) and (2) the time it takes the court to process and review the case after briefing. Attorneys play a significant role in both steps as they determine the time it takes to get an appeal moving, and the quality of the briefing affects the court’s ability to expeditiously dispose of it.

Counsel’s role in determining the time to disposition

By timely filing briefs and any required settlement documents, counsel can reduce the time it takes to decide an appeal. In a typical civil appeal, the court’s settlement program may take up to 180 days, but can be significantly reduced if counsel submits all settlement materials on time and is diligent in participating in the settlement process. Upon completion of the settlement program, the standard briefing schedule also lasts 180 days. By adhering to these deadlines (120 days for the opening brief and 30 days for the answering and reply briefs), counsel can assist in making sure that appeals are processed within the time contemplated by the Nevada Rules of Appellate Procedure.Counsel also can reduce the time to disposition by properly setting up the issues on appeal. By clearly setting forth only the pertinent issues, counsel can simplify the Court’s review and streamline the Court’s ability to focus on the important arguments. Often, cases stall because parties have improperly stated their case on appeal, forcing a law clerk or staff attorney to undertake the laborious task of making the case themselves. This rarely ends well and, what is worse, it may lead to unnecessary delays if counsel succeeds in misdirecting the Court from the real issue before it. The moral of the story: drafting concise, focused, and properly supported briefs will help eliminate unnecessary delays.

After an appeal is briefed

Once briefing is complete, the Court’s internal process for disposing of the case governs the matter’s remaining appellate life. While many believe this to be a clandestine procedure, it is memorialized in the Court’s Internal Operating Procedures (IOPs), the current version of which, last amended in July 2009, is publicly available on the Court’s website at www.nevadajudiciary.us/index.php/viewdocumentsandforms/func-startdown/649/ (adopted as ADKT No. 288). While the IOPs do not provide exact timelines and deadlines for resolving matters, they do explain, in detail, how the Court manages appeals.

By the time briefing is complete, the Court already has completed its preliminary review of the case, including a jurisdictional check. The cases are then screened by the appropriate division, either criminal or civil. During screening, cases are reviewed by a staff attorney who identifies important issues and assigns the matter to one of four decision tracks: (1) en banc chambers, (2) panel chambers, (3) en banc staff, or (4) panel staff. En banc cases generally are reserved for appeals with significant precedential value or that raise important constitutional or public policy questions, while panel cases are those with lesser precedential value and little or no effect beyond the named parties. En banc and panel cases generally are assigned to chambers if they require significant attention from the justices or they involve multiple complex issues. Not surprisingly, these cases tend to be the ones that take longer to process. Staff cases generally can be resolved by applying settled law to one complex issue or to several non-complex issues. The time it takes to screen and assign cases varies depending on the complexity of the issues and length of the record, but the Court typically is able to complete the screening process in 30 days.

Once a case is screened and assigned, the time it takes to disposition depends largely on its track. Panel staff cases, for which oral argument is not granted, generally take the least time to resolve. These also comprise the majority of the Court’s matters. For these cases, staff presents the issues to the justices for their consideration, along with a recommended draft disposition. The panel of justices then deliberates about the case and decides the appropriate outcome. The justices then provide guidance to the staff regarding the draft disposition and, after the necessary changes are made, the disposition is signed and filed.

All other cases require a bench memorandum, prepared by either a staff attorney or a law clerk within an assigned chamber. In either case, it takes approximately one month to complete the memorandum and corresponding research, after which the case either will be assigned for disposition or oral argument. A decision to hold oral argument must be made within 60 days after the case is assigned to an attorney for a bench memorandum.

If a case is assigned to oral argument, it will be placed for argument on the next available argument date. These dates usually occur during the first two weeks of each month, although the Court typically tries to limit the number of oral arguments in July and August in order to catch up on disposing pending cases. The justices assigned to an appeal hold a conference after the oral argument, during which they typically decide how to dispose of the case. Once they make this decision, the matter is deemed submitted for purposes of the Court’s internal procedures.

Once a case is deemed submitted, there are internal deadlines that govern how long the Court has to produce a written disposition. However, it is important to note that a case is not deemed submitted until the justices agree on the outcome at a conference. Often, after a bench memorandum is complete and/or oral argument is held, the justices request additional research or additional time to review issues relevant to the appeal. There is no deadline for this process, which may involve multiple conferences, supplemental memorandums, and/or draft opinions. For the few cases that fall into this category, predicting the time to disposition is nearly impossible. Once submitted, however, the disposition must be drafted within 60 days (panel cases) or 90 days (en banc cases).

The final step in the process involves editing the dispositions. Staff attorneys utilize a formal, highly concentrated editing process that is designed to last only two to three weeks. Unless substantive issues arise during editing, the final draft of the disposition (either an order or opinion) will be approved at the next conference and subsequently published.

Telling your client how long their appeal will take

If it seems that determining when the Court will dispose of an appeal is an inexact science, it is. There are many points along the timeline where a decision may stall, and there is no way to determine whether this has occurred in a given case. However, most appeals do not involve complex issues or issues of first impression, so they are not likely to get oral argument or be disposed of by a published, written opinion (in fact, in 2011, the Court only published 71 written opinions out of the 2,220 cases disposed). Therefore, most appeals will be disposed of within six months to a year after briefing is complete.

For the remaining cases, although it is difficult to predict the timeline to disposition with certainty, understanding the Court’s internal procedures is critical for clients (and attorneys) who may otherwise believe that their case has disappeared into the abyss. Understanding this process can increase counsel’s effectiveness in properly setting up the appeal. Being able to explain the Court’s internal operating procedures to a client, even in general terms, will go a long way towards managing the client’s expectations. It is important to keep in mind that even though an appeal can be frustrating at times, the Court’s deliberative and somewhat flexible process is necessary to achieve the correct outcome for the parties. After all, it is much better for the Court to be right than fast, but if appellate counsel follows the requisite timelines and carefully briefs the issues, the Court can be both.

Jeff Silvestri is a partner at McDonald Carano Wilson LLP and is co-chair of the firm’s Appellate Practice Group. Seth Floyd is an attorney at McDonald Carano Wilson LLP and formerly worked as a law clerk for Nevada Supreme Court Justice James W. Hardesty.