from a district court order granting a motion to amend
judgment or, alternatively for reconsideration, vacating a
prior judgment, and denying a motion to dismiss. Fifth
Judicial District Court, Nye County; Steven Elliott, Judge.
Albiston, LLP, and Becky Ann Pintar, Las Vegas, for
Fennemore Craig, P.C., and Christopher H. Byrd and Brenoch R.
Wirthlin, Las Vegas, for Respondent.
HARDESTY, PARRAGUIRRE and STIGLICH, JJ.
appeal, we consider whether an order granting a motion to
amend or reconsider a final judgment and vacating the
judgment is appealable as a special order after final
judgment. We conclude that it is not and therefore dismiss
AND PROCEDURAL HISTORY
Proimtu MMI LLC filed an amended complaint alleging several
causes of action related to the construction of a solar
electricity plant in Tonopah. On February 16, 2016, the
district court entered an order granting appellant TRP
International, Inc.'s motion to dismiss the claims
asserted by Proimtu against it and certified the judgment as
final under NRCP 54(b). Proimtu timely filed a tolling motion
pursuant to NRCP 59(e), see NRAP 4(a)(4)(C), asking
that the district court amend or reconsider the order
dismissing the complaint and allow the action to proceed. The
district court granted the motion, vacated the February 16,
2016, order granting the motion to dismiss, and denied the
motion to dismiss. TRP appeals from this order.
court entered an order directing TRP to show cause why this
appeal should not be dismissed for lack of jurisdiction,
questioning whether the order granting the motion to amend
and vacating the order granting the motion to dismiss is
appealable. TRP has filed a response and Proimtu has replied.
contends that the challenged order is appealable as a special
order after final judgment where the February 16, 2016, order
is a final judgment (under NRCP 54(b)), and the challenged
order was subsequently entered and substantively affects
TRP's rights arising from the February 16, 2016, order.
See Gumm v. Mainor, 118 Nev. 912, 920, 59 P.3d 1220,
1225 (2002) (defining an appealable special order after final
judgment as a post-judgment order that affects the rights of
a party to the action, growing out of the previously entered
judgment). Proimtu counters that orders amending or vacating
a judgment are not appealable under NRAP 3A(b) or this
court's caselaw, and an order denying a motion to dismiss
is an interlocutory nonappealable order. Proimtu specifically
asserts that the order is not a special order after final
judgment because once the judgment is vacated, there can be
no special order after final judgment.
final judgment in this case (pursuant to NRCP 54(b)) was the
February 16, 2016, order granting TRFs motion to dismiss. The
post-judgment order granting the motion to amend or for
reconsideration and vacating the judgment affected TRP's
rights arising from the final judgment because TRP was once
again subject to Proimtu's claims. Thus, the challenged
order could arguably be interpreted as meeting the definition
of a special order after final judgment and deemed appealable
under NRAP 3A(b)(8). See, e.g., Bates v. Nev. Sav. &
Loan Ass'n, 85 Nev. 441, 443, 456 P.2d 450, 452
(1969) (stating that an order granting a motion for rehearing
is appealable as a special order after final judgment).
this court has also held that a post-judgment order vacating
a final judgment is not a special order after final judgment.
In Reno-Hilton Resort Corp. v. Verderber, 121 Nev.
1, 6 n.24, 106 P.3d 134, 137 n.24 (2005), this court noted
that an order granting a motion for a new trial cannot be a
special order after final judgment because once a new trial
is granted, the judgment is vacated. Thus, an order granting
a new trial would be a nonappealable interlocutory order if
it were not independently appealable under NRAP 3A(b)(2).
More recently, in Estate of Adams v. Fallini, 132
Nev., Adv. Op. 81, 386 P.3d 621, 624 (2016), we concluded
that a post-judgment order granting a motion to set aside the
judgment under NRCP 60(b) for fraud upon the court was
interlocutory and not appealable. See also 15B
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 3916 (2d ed.
1992 and Supp. 2017) ("Orders granting motions to vacate
should be treated in the same way as orders granting a new
trial, and ordinarily are. An order that vacates a judgment
and sets the stage for further trial court proceedings is not
final."). Similarly, we conclude that an order granting
a motion to amend or ...