Opinion
89188 D-20-608912-D
09-24-2024
CESAR IVAN TORRES, Appellant, v. MARIA DE JESUS TORRES, Respondent.
PATRICIA A. MARR, ESQ. Jennifer Setters, Esq
UNPUBLISHED OPINION
PATRICIA A. MARR, ESQ.
Jennifer Setters, Esq
MOTION TO REINSTATE APPEAL AND PERMIT FILING OF DOCKETING STATEMENT
COMES NOW, Appellant, Cesar Ivan Torres, ("Cesar") by and through his attorney of record, PATRICIA A. MARR, ESQ., and files this Motion to reinstate his appeal. Appellant's Motion is made and based upon the pleadings and papers on file herein, the Memorandum of Points and Authorities below, and the Declaration of Counsel, attached hereto.
MEMORANDUM OF POINTS AND AUTHORITIES
I.
FACTS
On September 24, 2024, this appeal was dismissed by way of an Order Dismissing Appeal, for Appellant's failure to timely file a Docketing Statement.
However, Appellant believed that she had submitted the Docketing Statement for filing, which apparently was not accepted and/or saved as a draft. [Exhibit 1]. Counsel was unaware that the Docketing Statement remained unfiled.
Nonetheless, Counsel did not simply disregard this Honorable Court's Order, nor would she - ever. Attached as Exhibit 2 is the proposed Docketing Statement that Counsel submitted on September 19, 2024 at 5:08:27 p.m.
Counsel respectfully requests that this Honorable Court permit Appellant to submit the Docketing Statement, after the reinstatement of the Appeal.
Moreover, the matter is set for a Settlement Conference on October 22, 2024 and Counsel is optimistic for resolution of the matter. Notably, a final resolution of the specific issue at hand will preclude further litigation of this issue in the District Court.
II.
ARGUMENT
1. GOOD CAUSE EXISTS TO EXTEND THE TIME TO FILE THE DOCKETING STATEMENT AND REINSTATE THE APPEAL.
NRAP § 26(b)(1)(A) provides:
[F]or good cause, the court may extend the time (A) prescribed by these Rules or by its order to perform, any act, or may permit an act to be done after that time expires."
Our justice system is predicated upon the belief that justice will be obtained by using established procedures, applying applicable precedent, and rendering decisions that are fair and supported by the evidence.
Moreover, in Union Lead Min. &Smelter Co. v. Dachner, 239 P.2d 248 (Nev. 1951), this Court permitted the reinstatement of an appeal when senior counsel for the corporation returned from an illness and moved for reinstatement, after the appeal was improvidently dismissed by junior counsel. In Dachner, the Court considered several factors, including the lack of authority of junior counsel and the potential for injustice, and reinstated the appeal. Id. at 253. This Court held:
"However, if the fact of settlement was not presented to the court as a basis for action, neither was it concealed from the court. Thus, it can hardly be said that Dachner had abandoned or waived his contentions in relation thereto and his continuing with the appeal upon the merits cannot be said to have operated to nullify the settlement. Mills County v. Burlington &Missouri River Railroad Co., 107 U.S. 557, 2 S.Ct. 654, 27 L.Ed. 578 (in which case the Supreme Court of the United States found itself in a situation substantially identical to that confronting us). Under the circumstances it would ill befit us to read into the order of reinstatement an effectiveness never intended and contrary to its express language for the sole purpose of breathing life into the controversy over which this court was then laboring." Union Lead Min. &Smelter Co. v. Dachner, 239 P.2d 248, 253 (Nev. 1951).Id.
In short, the Court opined that reinstatement of the appeal will result in less danger of injustice to the parties. Id. at 523-524.
In this case, Counsel correctly calendared the due date for the Docketing Statement, drafted the Docketing Statement and thought she had filed the Docketing Statement. Counsel did not realize that thereafter, she apparently, did not submit the Docketing Statement and it was saved as a Draft. [Exhibit 2].
Accordingly, Appellant is seeking relief based upon the merits of this Appeal. Appellant does not desire this appeal to be dismissed based upon a missed deadline that was no fault of Appellant. Exhibit "3" is the Declaration of Patricia A. Marr, Esq., regarding the facts of this matter.
Appellant therefore respectfully requests. Pursuant to NRAP § 26(b)(1)(A), that this court acknowledge there is good cause to reinstate this Appeal, and permit Appellant this additional time to submit the Docketing Statement.
To ensure no further delay, this Docketing Statement is provided herein. As a portion of Exhibit 1. Upon this Court reinstating this case, Appellant shall immediately file the Docketing Statement to avoid further delay.
Appellant contends this delay in the filing of the Docketing Statement shall not cause irreparably harm to either party. Moreover, a Settlement Conference is scheduled on October 22, 2024 before Settlement Judge Ishi Kunin and Counsel remains optimistic that the matter will be resolved at that time.
III.
CONCLUSION
Based upon the facts herein, Appellant respectfully requests this Appeal be reinstated pursuant to the authority cited above so that Appellant may immediatel file his Docketing Statement.
EXHIBIT 1 OMITTED
EXHIBIT 2 OMITTED
EXHIBIT 3 OMITTED