Opinion
84681 85546
09-20-2023
VITALY ZAKOUTO, Appellant, v. THE STATE OF NEVADA, Respondent. VITALY ZAKOUTO, Appellant, v. PERRY RUSSELL, WARDEN, NORTHERN NEVADA CORRECTIONAL CENTER; JAMES DZURENDA, DIRECTOR, NEVADA DEPARTMENT OF CORRECTIONS; AND AARON D. FORD, NEVADA ATTORNEY GENERAL, Respondents.
UNPUBLISHED OPINION
ORDER DISMISSING APPEALS
These are consolidated appeals from district court orders denying a motion for new trial and denying a postconviction petition for writ of habeas corpus. Eighth Judicial District Court, Clark County; Jacqueline M. Bluth, Judge.
On May 1, 2023, counsel for respondents filed a motion to dismiss these appeals wherein he informed the court that appellant had died. On May 12, 2023, this court entered an order instructing that appellant's personal representative, if any, should file a motion for substitution in this court pursuant to NRAP 43 by July 31, 2023, if he or she wished to proceed with this appeal. See NRAP 43(a); Brass v. State, 129 Nev. 527, 306 P.3d 393 (2013); see also Walker v. Burkham, 68 Nev. 250, 253-54, 229 P.2d 158, 160 (1951) ("Upon the death of a party . . . the [action] cannot proceed until someone is substituted for the decedent . . .").
Subsequently, this court entered an order granting a motion to extend this deadline and directed any motion for substitution to be filed by August 30, 2023. This court cautioned that if no personal representative was substituted within that time, these appeals would be dismissed. See Brass, 129 Nev. at 530, 306 P.3d at 395. To date, no personal representative has filed a motion for substitution or otherwise communicated with this court.Accordingly, this court
It appears that a motion for appointment of special administrator was filed in the district court and denied. See Brass v. State, 129 Nev. 527, 306 P.3d 393 (2013) (stating that a motion for substitution must be filed in the district court because such a determination may involve fact-finding, which the district court is in a better position to conduct). The opposed motion filed in this court by appellant's counsel on behalf of appellant to substitute a personal representative is therefore denied. The countermotion to strike the motion to substitute is denied. The motion for enlargement of time to file exhibits in support of the motion to substitute personal representative is granted. The exhibits were filed on August 31, 2023.
ORDERS these appeals DISMISSED.
Respondents' motion to dismiss these appeals is denied as moot.
Herndon, J., Lee, J., Parraguirre, J.
Hon. Jacqueline M. Bluth, District Judge