Summary
The Supreme Court of Nevada grants Charles Lam's motion for reconsideration of the clerk's dismissal of appeal No. 83908 for failure to pay a filing fee. The court concludes that the appeal was improperly docketed as a new matter because it was an amended notice of appeal arising from a tolling motion for reconsideration, vacates the dismissal, transfers the documents to appeal No. 83730, and administratively closes No. 83908.
Topics
Practice areas
Questions Presented
- Whether appellant's motion regarding the filing fee should be construed as a motion for reconsideration of the clerk's dismissal order.
- Whether appellant's district-court motion qualified as a timely motion under NRCP 59(e), thereby tolling the time for appeal and permitting an amended notice of appeal without an additional filing fee.
- Whether the appeal in Docket No. 83908 was improperly docketed as a new matter and should instead be transferred to Docket No. 83730.
Holdings
- A motion addressing the filing fee may be construed as a motion for reconsideration of a clerk's order dismissing an appeal under NRAP 27(c)(3).
- A motion filed within 28 days after service of written notice of entry, stating its grounds with particularity and requesting substantive alteration of the order, qualifies as an NRCP 59(e) motion and tolls the time for filing a notice of appeal under NRAP 4(a)(4)(C).
- When an appeal follows a qualifying motion for reconsideration and is filed as an amended notice of appeal from the order resolving that motion, the appeal should not be docketed as a new matter and no additional filing fee is required.
Key quotations
“Because the motion for reconsideration was filed within 28 days from service of the written notice of entry of the district court's "Stipulation and Order to Approve First and Final Accounting," stated the grounds for the motion with particularity, and requested substantive alteration of that order, the motion for reconsideration had "NRCP 59(e) status, with tolling effect under NRAP 4(a)(4)(C)."” (2)
Factual background
Lam filed a motion seeking reconsideration of the district court's stipulation and order approving a first and final accounting, trustee fees, and attorney fees and costs. He subsequently filed an amended notice of appeal after the district court ruled on that motion, but the appeal was docketed as a new matter and dismissed for failure to pay an additional filing fee.
Procedural history
The appeal in Docket No. 83908 was docketed as a new matter without payment of the filing fee and was dismissed by clerk's order after appellant failed to comply with a notice requiring payment or a showing under NRAP 24. Appellant then filed a motion regarding the fee, which the Supreme Court construed as a motion for reconsideration. The court concluded that the appeal should have been docketed as an amended appeal related to Docket No. 83730, vacated the dismissal, transferred the documents to Docket No. 83730, and administratively closed Docket No. 83908.
Remand instructions
The clerk of the Supreme Court of Nevada was directed to transfer the documents in Docket No. 83908 to Docket No. 83730 and administratively close Docket No. 83908.