Ebel Vs. Briggs

• Court: Nevada Supreme Court
• Decided: April 16, 2021
• Docket: 81617
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF NEVADA

ANNE FRANCES EBEL, No. 81617 Appellant, vs. SANDRA P. BRIGGS, AN INDIVIDUAL; FILED AND THOMAS CULWELL, AN INDIVIDUAL, APR 1 6 2021 Res sondents. ELIZABETH A. BROWN CLERK OF SUPREME COURT BY DEPUTY' CLERK ORDER DISMISSING APPEAL

This is an appeal from a district court order granting a motion to dismiss for failure to state a claim. Eighth Judicial District Court, Clark County; Jacqueline M. Bluth, Judge. On February 22, 2021, the parties filed a stipulation for a second extension of time for appellant to file the opening brief. In support of the stipulation, counsel for appellant stated that he had not yet received the requested transcripts. On February 26, 2021, this court entered an order treating the stipulation as a motion, see NRAP 31(b)(2) (parties may stipulate to one 30-day extension of time from due date established by NRAP 31(a)(1)), granting the motion, and directing appellant to file and serve the opening brief and appendix by March 26, 2021.1 The order cautioned that no further extensions would be permitted absent extraordinary circumstances and extreme need, NRAP 31(b), and that failure to timely file the opening brief and appendix could result in the imposition of sanctions, including the dismissal of this appeal, NRAP 31(d). The order also noted that the transcript request form filed by appellant was

lA copy of this order is attached. SUPREME COURT OF NEVADA

(0) 1947A 40031, deficient because it did not bear the file-stamp of the district court clerk as required and was not addressed to the responsible court recorder. See NRAP 9(a)(3)(A), (C). This court directed appellant to file an amended transcript request form within 7 days that fully complied with NRAP 9(a). The order stated that failure to comply could result in the imposition of sanctions. NRAP 9(a)(7). Appellant filed an amended transcript request form on March 1, 2021. But the amended transcript request form was rejected by the clerk of this court on that same date because it did not bear the file-stamp of the district court clerk. Later that day, appellant filed a file-stamped transcript request form. Appellant has now filed an untimely motion for a third extension of time to file the opening brief. In support of the motion, counsel for appellant states that he has not yet received all requested transcripts. Respondents oppose the inotion and countermove to dismiss this appeal based on the failure to timely file the opening brief or timely move for an extension of time. Although appellant filed the opening brief and appendix on April 5, 2021, appellant did not file an opposition to the motion to dismiss. A motion for an extension of time to file a brief must be filed on or before the due date for the brief. NRAP 31(b)(3) (stating that "[a] motion for extension of time for filing a brief may be made no later than the due date for the brier). Counsel for appellant does not explain why the current extension motion was not timely filed. And this court is not convinced that counsel demonstrates extraordinary circumstances and extreme need in support of a third extension of time where it appears the delay in receiving the transcripts was due to counsel's failure to properly request the SUPREME COURT OF NEVADA

(01 1947A 4411M4x, 2 .t.71-774 '7777-1r , • • transcripts in a timely manner. Under these circumstances, and given that appellant has not filed an opposition to the motion to dismiss, the extension motion is denied and the countermotion is granted. This appeal is dismissed. The clerk shall strike the opening brief and appendix filed on April 5, 2021. It is so ORDERED.

/A, C.J. Hardesty

-c2.4•3"2"114'644elm.7 Parraguirre Silver

cc: Hon. Jacqueline M. Bluth, District Judge Patrick N. Chapin, Settlement Judge Bowen Law Offices Hall Jaffe & Clayton, LLP Eighth District Court Clerk

3 - IN THE SUPREME COURT OF THE STATE OF NEVADA

ANNE FRANCES EBEL, No. 81617 Appellant, . SANDRA P. BRIGGS, AN INDIVIDUAL; FILED AND THOMAS CULWELL, AN INDIVIDUAL, FEB 2 6 2021 Respondents. .ELIZASEM A. BROM CLERK OF WPM= COURT

ORDER GRANTING MOTION

The parties have filed a stipulation for a second extension of time to file the opening brief. The stipulation is treated as a joint motion for an extension of time. See NRAP 31(b)(2) (parties may stipulate to one 30-day extension of time from due date established by NRAP 31(a)(1)). In support of•the extension, the parties state that the requested transcripts have not yet been produced. Review of appellant's transcript request form reveals that it is deficient. The document does not bear the file-stamp of the district court clerk as required by NRAP 9(a)(3)(1). And the transcript requeSt form is not addressed to the responsible court recorder. See NRAP 9(a)(3)(C) (requiring an appellant to "examine the"district coOrt minutes to ascertain the nanie Of each court reporter or recorder who recorded the proceedings for which transcripts are necessary" and "prepare a separate transcript request form addressed to each court reporter or recorder who recorded the necessary proceedinge). Accordingly, appellant shall have 7 days from the date of this order to serve and file, in this court, an amended transcript request form that fully complies with NRAP 9(a). Failure to comply with this order may

sl/PifEW COURT result in the imposition of sanctions. NRAP 9(a)(7). The extension motion

WI MU 42011. • is granted. NRAP 31(b). Appellant shall have until March 26, 2021, to file and serve the• opening brief and appendix. No further exténsibns shall be permitted abSent extraordinary circumstances and extreme need. Id. Counsel'a caseload normally will not be deemed such a circumstance. cf. Varnum v. Grady, 90 Nev. 374, 528• P.2d 1027 (1974). Failure-to timely file the• opening brief and appendix may result in the imposition Of sancticins, including the dismissal of this appeal. NRAP 31(d). It is so ORDERED.

CJ

cc: Bowen Law Offices Hall Jaffe &Clayton, LLP