Petition for en banc reconsideration of an order dismissing appeals for failure to file opening brief and appendix.
Petition for en banc reconsideration denied.
Hoffman, Test, Guinan & Collier and John A. Collier, Reno; McDonald Carano Wilson LLP and Debbie A. Leonard and Seth T. Floyd, Reno; Sterling Law LLC and Beau Sterling, Las Vegas, for Appellants.
Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno; Wm. Patterson Cashill, Reno, for Respondents.
Hardesty, J. We concur: Gibbons, C.J., Parraguirre, J., Cherry, J., Pickering, J., Douglas, J., Saitta, J.
BEFORE THE COURT EN BANC.
These consolidated appeals were dismissed for failure to timely file the opening brief and appendix. In seeking the en banc court's reconsideration, appellants argue that dismissal of their appeals based on the missteps of their lead appellate attorney is contrary to this court's precedent recognizing public policy favoring dispositions on the merits. Appellants' dissatisfaction with their attorney's performance, however, does not entitle them to the reinstatement of their appeals, and their argument to the contrary is not consistent with general agency principles, under which a civil litigant is bound by the acts or omissions of its voluntarily chosen attorney. Although this court has a sound policy preference for deciding cases on the merits, that policy is not absolute and must be balanced against countervailing policy considerations, including the public's interest in expeditious resolution of appeals, the parties' interests in bringing litigation to a final and stable judgment, prejudice to the opposing side, and judicial administration concerns, such as the
court's need to manage its sizeable and growing docket. We therefore disagree with appellants that precedential uniformity provides a basis to reinstate these appeals. As appellants' contentions fail to satisfy NRAP 40A's standards, en banc reconsideration is denied.
FACTS AND PROCEDURAL HISTORY
The appeal in Docket No. 61024 challenged a district court judgment following a bench trial in a real property contract action. The appeal in Docket No. 61791 challenged the same court's post-judgment orders awarding attorney fees and costs. The appeals were consolidated on December 12, 2012, and a briefing schedule was set, under which appellants' opening brief was due by no later than March 12, 2013.
Overdue opening brief
On appellants' motion, the brief's due date was extended to April 11, 2013. On April 12, 2013, appellants filed a motion seeking a second extension until May 13, 2013, to file the brief. Because appellants did not submit the brief by the May 13 requested deadline, appellants' motion for a second extension was denied as moot on May 24, 2013. Despite denying the motion, the May 24 order allowed appellants 11 more days, until June 4, 2013, to file and serve the opening brief and appendix, but the order warned that failure to do so could result in the appeals' dismissal. The brief and appendix were not filed by that deadline. Appellants had two attorneys of record in these appeals: Beau Sterling and John A. Collier. Mr. Sterling apparently was responsible for briefing the appeal and filing documents in this court. Mr. Collier, who was trial counsel, received copies of this court's notices and orders.
Motion to dismiss
On June 10, 2013, respondents filed a motion to dismiss these appeals. Appellants, through Mr. Sterling, opposed the motion and again asked for more time to file the brief, until June 12, stating that the " short amount of additional time is requested in order to help spread out the deadlines slightly on a number of matters, including this one, that all fell due around the same time, and most of which are similarly urgent." Mr. Sterling also represented that he had recently filed briefs and prepared for oral argument in other matters and that he had a personal commitment. He stated that his motion for a ...