Recent Decisions Regarding Jurisdiction - The Writ

Although seemingly straightforward, the appealability of administrative actions and judicial orders continues to be the subject of the Nevada Supreme Court’s published opinions. In re Guardianship of Carmen Gomez Wittier, 135 Nev. Adv. Op. 31 (Aug. 1, 2019), addressed whether appellate court jurisdiction existed over a district court order extending a temporary guardianship. Spar Business Servs., Inc. v. Nev. Employment Sec. Div., 135 Nev. Adv. Op. 40 (September 5, 2019), concerned a district court’s jurisdiction over a petition for judicial review under the Nevada Administrative Procedures Act. In both cases, the Court determined that dismissal of the judicial proceedings was required, although, in Spar, the dismissal was not on jurisdictional grounds.  

An Order Extending A Temporary Guardianship Is Not Appealable

An appellate court “may only consider appeals authorized by statute or court rule.” Brown v. MHC Stagecoach, LLC, 129 Nev. 343, 345, 301 P.3d 850, 851 (2013). The categories of appealable orders are set forth in NRAP 3A. In addition, various substantive statutes make certain orders appealable. See, e.g., NRS 41.670(4) (denial of anti-SLAPP motion to dismiss); NRS 38.247 (order denying motion to compel arbitration); NRS 155.190 (certain orders in probate proceedings). In Wittier, the Court could find no rule or statute that made an order extending a temporary guardianship appealable.

Wittier involved a son’s petition for a temporary and permanent guardianship over his mother. The district court entered an order appointing a temporary guardian and setting a hearing. After the hearing, the district court issued an order extending the temporary guardianship and scheduling another hearing to determine permanent guardianship. The mother appealed from that order.

Upon its initial review of the docketing statement and other documents, the Supreme Court flagged a potential jurisdictional defect and ordered the appellant to show cause whether the appeal should be dismissed for lack of jurisdiction. In response, the appellant asserted three independent bases for appellate jurisdiction, all of which the Supreme Court rejected.

First, the appellant asserted that the order extending the temporary guardianship was a final judgment and therefore appealable under NRAP 3A(b)(1). A final judgment is “one that disposes of all the issues presented in the case, and leaves nothing for the future consideration of the court, except for post-judgment issues such as attorney’s fees and costs” Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000) (internal quotation and citation omitted). The Court readily concluded that the order being appealed was not final because it had not resolved the petition for permanent guardianship.

Second, the appellant asserted that the order was appealable as the “functional equivalent” of a preliminary injunction, which is independently appealable under NRAP 3A(b)(3). Although the Court noted “some similarities between a preliminary injunction and a temporary guardianship order,” it nevertheless concluded that because temporary guardianships are subject to periodic review, they should not be treated as appealable preliminary injunctions. To reach this conclusion, the Court cited its decisions rejecting appeals from temporary custody orders. See Sicor, Inc. v. Sacks, 127 Nev. 896, 900, 266 P.3d 618, 620 (2011); In re Temporary Custody of Five Minors, 105 Nev. 441, 443, 777 P.2d 901, 902 (1989).

 Third, the appellant contended that the temporary guardianship order was appealable under NRS 159.375(1), which allows appeals from orders granting or revoking letters of guardianship. Noting that statutes authorizing appeals from specified interlocutory orders must be narrowly construed, the Court refused to shoehorn the appeal at issue into the statute. Simply because the order extending the temporary guardianship may have impliedly reauthorized the previously issued letters of temporary guardianship was insufficient to find a statutory basis for appellate jurisdiction.

Pointing to its limited powers of review, the Court emphasized that it could not assert jurisdiction simply because an appeal may present important issues implicating public policy.

Failure to Timely Serve A Petition For Judicial Review Is Not A Jurisdictional Defect

Spar challenged a decision by the Employment Security Division to deny unemployment benefits. The petition for judicial review was timely filed in the district court within the 30-day deadline specified in NRS 233B.130(2). However, the petitioner did not serve the agency until 15 days after the 45-day deadline set forth in NRS 233B.130(5).

The agency moved to dismiss, contending the district court lacked jurisdiction to decide the petition for judicial review. The district court granted the motion to dismiss, and the petitioner appealed.

The Supreme Court concluded that the 45-day deadline for service on the agency is not jurisdictional. In reaching this conclusion, the Court pointed to the distinction between NRS 233B.130(5) and NRS 233B.130(2), which “mandates who must be named as respondents to a petition for judicial review, where the petition must be filed, who must be served with the petition, and the time for filing the petition in the district court.” NRS 233B.130(2), the Court noted, affords the district court no discretion with regard to the statutory requirements.

NRS 233B.130(5), on the other hand, gives the district court discretion to determine whether good cause exists to extend the deadline for service. The Court concluded that such discretion would not exist with a jurisdictional requirement. In support of this conclusion, the Court cited Fitzpatrick v. State ex rel., Dep’t of Comm., Insur. Div., 107 Nev. 486, 813 P.2d 1004 (1991), which held that the untimely filing of a memorandum of points and authorities in support of a timely filed petition for judicial review is not a jurisdictional defect because the district court had discretion to extend the deadline.

Although the Court concluded in Spar that district court had jurisdiction, it nevertheless affirmed dismissal of the petition for judicial review because the petitioner failed to show good cause for belatedly serving the agency.

Conclusion

When it comes to appellate practice, questions of appealability are ever-present. Wittier and Spar further clarify the jurisdiction of the courts to hear administrative and judicial appeals.