PETER M. SOUTHWORTH, Petitioner,
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE ROB BARE, DISTRICT JUDGE, Respondents, and LAS VEGAS PAVING CORPORATION, Real Party in Interest.
Original pro se petition for a writ of mandamus or
prohibition challenging the denial of a motion to dismiss for
lack of jurisdiction. Petition granted.
M. Southworth, Ridgecrest, California, in Pro Se.
Emerson Law Group and Phillip R. Emerson, Henderson, for Real
Party in Interest.
petition asks this court to determine whether the time to
appeal outlined in the Justice Court Rules of Civil Procedure
(JCRCP), specifically the time set forth in JCRCP 98, is
jurisdictional and mandatory, therefore removing from the
district court's jurisdiction an untimely appeal from
AND PROCEDURAL HISTORY
case arose originally as a small claims action in the Las
Vegas Justice Court Township. Petitioner Peter Southworth
filed a small claims complaint against real party in interest
Las Vegas Paving Corporation (LVPC). The matter was first
heard by a referee appointed by the justice of the peace in
accordance with NRS 4.355 and as incorporated by Rule 48 of
the Justice Court Rules of Las Vegas Township. After the
referee made his findings of fact, conclusions of law, and
recommendations, recommending that Southworth receive only a
portion of his requested relief, Southworth filed a formal
objection. A de novo formal objection hearing was held, and
the justice of the peace pro tempore entered a final judgment
granting Southworth full relief on March 22, 2017. Notice of
the judgment was mailed to the parties on March 24, 2017. On
April 7, 2017, LVPC appealed that final judgment to the
moved to have the appeal dismissed under JCRCP 98, which
states that a notice of appeal from a small claims action
injustice court to district court must be filed within five
days of entry of judgment. LVPC first argued JCRCP 72, which
allows for 20 days to appeal, governed the
proceeding. Alternatively, LVPC argued that the
district court should exercise its discretion under JCRCP 1
to expand the time to appeal outlined in JCRCP 98, as the
procedure used in the justice court was confusing and the
notice of appeal was filed only two days late. The district
court agreed with this latter argument and denied
Southworth's motion to dismiss, thereby exerting
jurisdiction to hear the matter despite an untimely appeal.
Southworth now petitions this court for a writ of mandamus or
prohibition arresting the district court's improper
exercise of jurisdiction or compelling the district court to
grant his motion to dismiss.
issue before this court is whether the time to appeal
outlined in JCRCP 98 is jurisdictional and mandatory, or
whether a district court may exercise discretion to expand
the time to appeal where "literal application of [the]
rule would work hardship or injustice. " JCRCP 1.
Southworth asks this court to hold that JCRCP 98 is
jurisdictional and mandatory and to issue a writ of
prohibition arresting the district court from entertaining an
appeal that is untimely under that rule.
we examine whether writ relief is available in this context.
"Because the district court has final appellate
jurisdiction over cases arising injustice's court,
[petitioners] cannot appeal to [the appellate] court and may
seek relief only through a writ petition." Sellers
v. Fourth Judicial Dist. Court, 119 Nev. 256, 257, 71
P.3d 495, 496 (2003) (footnotes omitted). As a general rule,
we decline to entertain writ petitions that request review of
a decision of the district court acting in its appellate
capacity; however, where the district court has improperly
refused to exercise its jurisdiction, has exceeded its
jurisdiction, or has exercised its discretion in an arbitrary
or capricious manner, we make exception to that general rule.
State v. Eighth Judicial Dist Court (Hedland), 116
Nev. 127, 134, 994 P.2d 692, 696 (2000). Where a district
court has exercised jurisdiction over an untimely appeal from
a justice court, a petition for a writ prohibiting the
district court from hearing that matter is properly before
this court and may issue. City of Las Vegas v. Eighth
Judicial Dist. Court, 107 Nev. 885, 887, 822 P.2d 115,
116 (1991); see also NRS 34.320. Accordingly, we
determine that, because Southworth alleges that the district
court exceeded its jurisdiction, the matter is properly
before us and a writ of prohibition is the appropriate form
we hold that the rule governing timeliness of appeal from
small claims actions in justice court to district court is
"clear and absolute to give parties and counsel fair
notice of the procedures for vesting jurisdiction in"
the district court. See Phelps v. State, 111 Nev.
1021, 1022, 900 P.2d 344, 345 (1995). The rules state that
JCRCP 98 governs the time to appeal from small claims actions
in justice court and that a notice of appeal must be
filed in district court within five days of entry of
judgment. JCRCP 98; see also JCRCP 2, 72. The rules
further provide that "[f]ailure of an appellant to take
any step other than the timely filing of a notice of
appeal does not affect the validity of the appeal."
JCRCP 72 (emphasis added). In other words, failure to file a
notice of appeal from a small claims action in justice court
within five days clearly affects the validity of the appeal.
while JCRCP 1 gives the district court discretion to act
outside the scope of the rules where "literal
application of [the] rule[s] would work hardship or
injustice, " we further hold that such a broad,
discretionary rule cannot be used to expand the time to
appeal. See Scherer v. State,89 Nev. 372, 374, 513
P.2d 1232, 1233 (1973) ("The timely filing of a notice
of appeal is jurisdictional and is an essential prerequisite
to the perfection of an appeal."). We have repeatedly
indicated in analogous settings that exercising such
discretionary authority is inappropriate in the context of
appeal time limits. See, e.g., City of Las Vegas,
107 Nev. at 887, 822 P.2d at 116 (holding a district court
exceeds its jurisdiction and can be arrested by writ for
entertaining untimely appeals from judgments of conviction
entered in municipal court); Walker ...