Opinion
ADKT 381.
December 16, 2004.
Before: DEBORAH A. AGOSTI Associate Justice, NANCY A. BECKER Associate Justice, MARK GIBBONS Associate Justice, ROBERT E. ROSE Associate Justice, A. WILLIAM MAUPIN Associate Justice, MICHAEL L. DOUGLAS Associate Justice.
ORDER AMENDING RULE 4(a) OF THE NEVADA RULES OF APPELLATE PROCEDURE
WHEREAS, this court's rules and case law currently provide that a notice of appeal is ineffective if filed after the oral pronouncement of a decision but before entry of the written judgment; and
WHEREAS, this court's rules and case law also currently provide that a notice of appeal filed before the formal disposition of a timely tolling motion is ineffective; and
WHEREAS, this court has determined that disallowing premature appeals can be unduly harsh when the appellant clearly intends to appeal but files the notice of appeal too quickly and can also preclude this court from considering some meritorious appeals; and
WHEREAS, this court has considered Rule 4(a) of the Nevada Rules of Appellate Procedure and determined that amendment of the rule is warranted to permit the filing of premature notices of appeal in civil cases and to restructure the provisions regarding tolling motions, accordingly,
IT IS HEREBY ORDERED that Rule 4(a) of the Nevada Rules of Appellate Procedure shall be amended and shall read as set forth in Exhibit A.
IT IS FURTHER ORDERED that this rule amendment shall become effective immediately. The clerk of this court shall cause a notice of entry of this order to be published in the official publication of the State Bar of Nevada. Publication of this order shall be accomplished by the clerk disseminating copies of this order to all subscribers of the advance sheets of the Nevada Reports and all persons and agencies listed in NRS 2.345, and to the executive director of the State Bar of Nevada. The certificate of the clerk of this court as to the accomplishment of the above-described publication of notice of entry and dissemination of this order shall be conclusive evidence of the adoption and publication of the foregoing rule amendment.
EXHIBIT A AMENDMENT TO RULE 4(a) OF THE NEVADA RULES OF APPELLATE PROCEDURE RULE 4. APPEAL — WHEN TAKEN
(a) Appeals in Civil Cases.
(1) Time and Location for Filing a Notice of Appeal. In a civil case in which an appeal is permitted by law from a district court to the Supreme Court, the notice of appeal required by Rule 3 shall be filed with the clerk of the district court. [A notice of appeal filed after the oral pronouncement of a decision or order but before the entry of a written judgment or order shall have no effect. A] Except as provided in Rule 4(a)(4), a notice of appeal must be filed after [the] entry of a written judgment or order, and no later than [thirty (30)] 30 days after the date [of service of] that written notice of [the] entry of the judgment or order appealed from is served. If an applicable statute provides that a notice of appeal must be filed within a different time period, the notice of appeal required by these rules must be filed within the time period established by the statute. (2) Multiple Appeals. If a party timely files a notice of appeal [is filed by a party], any other party may file and serve a notice of appeal within [fourteen (14)] 14 days of the date on which the first notice of appeal was served, or within the time otherwise prescribed by [this subdivision] Rule 4(a), whichever period last expires.
[(2) The running of the time for filing a notice of appeal is terminated as to all parties by a timely motion filed in the district court by any party pursuant to the Nevada Rules of Civil Procedure hereafter enumerated in this sentence, and the full time for appeal fixed by this subdivision commences to run and is to be computed from the date of service of written notice of entry of any of the following orders made upon a timely motion under such Rules: (i) granting or denying a motion for judgment under N.R.C.P. 50(b); (ii) granting or denying a motion under N.R.C.P. 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) granting or denying a motion under N.R.C.P. 59 to alter or amend the judgment; (iv) granting or denying a motion for a new trial under N.R.C.P. 59. A notice of appeal filed before the formal disposition of any timely post-judgment motion enumerated in this subdivision shall have no effect. A notice of appeal must be filed after the entry of a written order of the district court resolving any of the post-judgment motions enumerated in this subdivision and no later than thirty (30) days from the date of service of written notice of entry of that order.]
(3) Entry Defined. A judgment or order is entered within the meaning of this Rule when it is signed by the judge or by the clerk, as the case may be, and filed with the clerk. A notice or stipulation of dismissal filed pursuant to N.R.C.P. 41(a)(1) has the same effect as a judgment or order signed by the judge and filed by the clerk and constitutes entry of a judgment or order for the purposes of this Rule. If such a notice or stipulation dismisses all unresolved claims pending in an action in the district court, the notice or stipulation constitutes entry of a final judgment or order for purposes of this Rule.
(4) Effect of Certain Motions on a Notice of Appeal. If a party timely files in the district court any of the following motions under the Nevada Rules of Civil Procedure, the time to file a notice of appeal runs for all parties from entry of an order disposing of the last such remaining motion, and the notice of appeal must be filed no later than 30 days from the date of service of written notice of entry of that order; (i) a motion for judgment under Rule 50(b); (ii) a motion under Rule 52(b) to amend or make additional findings of fact; (iii) a motion under Rule 59 to alter or amend the judgment; (iv) a motion for a new trial under Rule 59. (5) Appeal From Certain Amended Judgments and Post-Judgment Orders. An appeal from a judgment substantively altered or amended upon the granting of a motion listed in Rule 4(a)(4), or from an order granting or denying a new trial, is taken by filing a notice of appeal, or amended notice of appeal, in compliance with Rule 3. The notice of appeal or amended notice of appeal must be filed after entry of a written order disposing of the last such remaining timely motion and no later than 30 days from the date of service of written notice of entry of that order. (6) Premature Notice of Appeal. A premature notice of appeal does not divest the district court of jurisdiction. The supreme court may dismiss as premature a notice of appeal filed after the oral pronouncement of a decision or order but before entry of the written judgment or order, or before entry of the written disposition of the last-remaining timely motion listed in Rule 4(a)(4). If, however, a written order or judgment, or a written disposition of the last-remaining timely motion listed in Rule 4(a)(4), is entered before dismissal of the premature appeal, the notice of appeal shall be considered filed on the date of and after entry of the order, judgment or written disposition of the last-remaining timely motion. [(4)] (7) Amended Notice of Appeal. No additional fees shall be required if any party files an amended notice of appeal in order to comply with the provisions of this Rule.