McClandon v. Dist. Ct. (Dakem & Assoc.'s, LLC)

• Court: Nevada Supreme Court
• Decided: November 23, 2016
• Docket: 69949
• Status: Unpublished

Opinion

IN THE SUPREME COURT OF THE STATE OF NEVADA

JOEANN MCCLANDON, AN No. 69949 INDIVIDUAL, Petitidtker, FLED THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, NOV 2 3 2016 IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE KENNETH C. CORY, DISTRICT

Respondents, and DAKEM & ASSOCIATES, LEC, A LIMITED LIABILITY COMPANY,/ Real Party in Interest. / x ORDER DENYING PE77TIONF \OR WRIT OF MANDAMUS

This is an origi41 petition for writ of mandamus challenging a district court order deny,jjig a motion to set a ide a renewed judgment for failure to comply with N S 17.214's renewal proc dures. I. On Sept6mber 29, 2005, real party in lizterest Dakem & Associates, LLC, /obtained a judgment against pet ioner JoeAnn McClandon in the amount of $73,401 and $480.71 for legal osts after a two-day bench/ trial. Thereafter,. Dakem began efforts tck enforce judgment, wyich were ultimately unsuccessful. Because civil judgments are only orceable for a period of six years pursuant to NRS 11.190(1), Dakem was required to renew its judgment under NRS 17.214 by

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' ( c0-3tI ci September 29, 2011, unless the statute of limitations period was tolled. 1 Mier this deadline passed, on February 23, 2012, Dakem filed an ex parte motion to renew judgment with the district court, which as granted on

March 13, 2012, and filed on March 15, 2012. Althou Dakem claims it

sent several notices to McClandon's last known ddress, McClandon

maintains that she never received those notices. Over\three years later, on April 13,/2015, McClandon filed a motion with the district court to vacate Dake s renewal of judgment and

have the original judgment declared expi ed. After full briefing and argument by both partie\s,„\the district co rt denied McClandon's motion. McClandon's counsel then Withdrew fro representation, and McClandon filed a timely pro se appeal. T t dismissed McClandon's appeal on July 31, 2015, stating that "[n]o tatute or court rule provides for an

appeal from either an order 443/hi a motion to declare a judgment expired or an order denying a motid to quash a bench warrant." McClandon v. Dakem & ssocs., LLC; Docket No. 68430 (Order

Dismissing Appeal, July 31/2015). McClandon n petitions this court f a writ of mandamus to

command the district court to vacate the March 15, 012, order renewing

judgment and declate the September 29, 2005, udgment against

McClandon expired..

1 Dakern p rsuaded the district court the statute of limita ons period was tolled by e stay ordered at McClandon's behest during he original appeal of the judgment. The parties dispute whether the stay c e into effect becau McClandon failed to post a supersedeas bond. Beca se we resolve this petition on procedural grounds, we express no opinio on whether the statute of limitations was tolled.

SUPREME COURT OF NEVADA 2 (0) 1947A "Writs of mandamus. . . are extraordinary remedies and are available when the petitioner has no 'plain, speedy and ade ate remedy in the or •nary course of law." D.R. Horton, Inc. v. Eight Judicial Dist. Court, 123 Nev. 468, 474, 168 P.3d 731, 736 (2007) (qu ing NRS 34.170). A writ of mandamus is "available to compel the perfo ance of an act that the law requires \. . or to control an arbitrary or capricious exercise of discretion." Int? Gme Tech., Inc. v. Second Jud ial Dist. Court, 124 Nev. 193, 197, 179 P.3d 55 558 (2008); see also S 34.160. Whether a writ of mandamus will be c sidered is withi this court's sole discretion. Smith v. Eighth Judicial Dt§t. Court, 107 ev. 674, 677, 818 P.2d 849, 851 (1991). The right to imme ate appeal a final judgment generally constitutes a plain, speedy and ad quate remedy at law. D.R. Horton, 123 Nev. at 474, 168 P.3d at 736. us, f a party has a right to appeal, then there is an adequate legal r medy av ilable to a party, and therefore a writ of mandamus is inapp opriate and '11 not issue. NRAP 3A(b)/8) permits appea of "[a] special order entered after final judgment," hich includes an or r declining to invalidate an improperly renewed judgment. See Leven v. y, 123 Nev. 399, 401-02, 168 P.3d 712, 714/(2007). NRAP 40 permits a pa ty to petition this court for rehearing if/error or misapprehension of record f ts occurred. H re, McClandon had a plain, speedy, d adequate legal remedy in tli/e form of a direct appeal from the district co rt's denial of her motion to/vacate Dakem's motion to renew the judgmen She timely appealed the district court's denial of her motion to this court \ut failed to cogently establish the jurisdictional basis for her appeal. As a re\ult, this

SUPREME COURT OF NEVADA 3 (0) 1947A court mistakenly dismissed her appeal on the grounds that there was "[n] statute or court rule [that] provides for an appeal from eit er an order denying a motion to declare a judgment expired or an 'der denying a motio to quash a bench warrant." McClandon, Dockq o. 68430 (Order Dismissiri Appeal, July 31, 2015). It appears at we incorrectly dismissed h appeal, based on confusion in )'he record as to the jurisdictional ha s for her appeal. McClan on, however, was not w out recourse. She could have chosen to petiti this court for re aring under NRAP 40(c)(2), clarifying the jurisdictio 1 basis for her ippeal and thus persuading this court to hear her appeal o hat McClandon failed to petition this court for rehearing is tal t er instant petition. McClandon's appeal and her unused petition\for ehearing constituted a plain, speedy, and adequate legal remedy th precludes the issuance of a writ of mandamus. Although McC1 was proceeding pro se, she was nonetheless responsible for fqnowin g 1\4e law and procedure of the courts. See Vanisi v. State, 117 Nev, 330, 340, 2 .3d 1164, 1171 (2001). Because Mc andon had lain, speedy, and adequate remedy at law in the fo of an appeal and a\Retition for rehearing, a writ of mandamus is map opriate. Therefore, we ORDE the petition DEN

C.J. Parratirre

Hardes

Pickering

SUPREME COURT OF NEVADA 4 (0) 1947A cc: Hon. Kenneth C. Cory, District Judge Tanner Harris Law Firm, LLC La Office of Daniel Marks Eigh District Court Clerk

SUPREME COURT OF NEVADA 5 (0) 1947A