Nevada Supreme Court Reminds Litigants And Judges Of Their Pre-Appeal Responsibilities - The Writ

Appellate practice really starts in the district court. Employing the proper procedure, identifying whether an order is appealable, and ensuring the district court adequately supports its decisions are key elements of a properly teed-up appeal. The Nevada Supreme Court emphasized these points again in two recent decisions.

Not All Orders Related to Injunction Requests Are Appealable

Appellate jurisdiction only exists when authorized by statute or court rule. NRAP 3A(b) lists various types of appealable orders, including “[a]n order granting or refusing to grant an injunction or dissolving or refusing to dissolve an injunction.” Previously, the Court interpreted this language as being limited to injunctions that are governed by NRCP 65. Peck v. Crouser, 129 Nev. 120, 124, 295 P.3d 586, 588 (2013). In Peck, the Court held that a post-judgment vexatious litigant order that restricted a party's court access was not subject to NRCP 65 and therefore was not appealable under NRAP 3A(b)(3).

The Court adhered to this limitation in Nelson v. Nelson, 136 Nev. Adv. Op. 36 (2020), concluding that NRAP 3A(b)(3) does not create jurisdiction over an order denying a joint preliminary injunction in a divorce case. Nelson involved a wife’s request to extend a joint preliminary injunction issued pursuant to Eighth Judicial District Court Rule 5.517 to prevent her husband from disposing of any property that was subject to a community interest claim. The district court denied the relief sought, and the wife appealed.

Flagging a potential jurisdictional defect, the Court issued a show cause order for the wife to demonstrate that appellate jurisdiction existed. In response, the wife pointed to NRAP 3A(b)(3). Unpersuaded, the Court held that because NRCP 65 expressly excludes family division matters, and NRAP 3A(b)(3) only allows appeals from orders decided under NRCP 65, there is no appellate jurisdiction over an order entered under EDCR 5.517.

The Court’s rationale was straightforward: the standards in NRCP 65 and EDCR 5.517 for a preliminary injunction are distinct. As to NRCP 65, the movant must show irreparable harm and a likelihood of success on the merits, with notice to the adverse party and adequate security. In contrast, joint preliminary injunctions issued pursuant to EDCR 5.517 require no showing of probable success or harm. The court clerk must issue such an injunction upon the request of either party without security. This more lenient standard, the Court concluded, does not have the same indicia of finality as does a NRCP 65 preliminary injunction.

In light of this result, orders issued under Second Judicial District Court Rule 43(2)(b) are likely not appealable. Being unappealable, however, does not mean a joint preliminary injunction in a family matter is unreviewable. As the Court noted in Nelson, a party may file a petition for writ of mandamus if the criteria for such relief are met.  

Importance of District Court Findings

A district court decision that has thorough findings of fact tilts heavily towards affirmance because those findings are given great deference on appeal and will only be disturbed if they are unsupported by the record or show an abuse of discretion. Conversely, the absence of findings can have serious consequences for an order undergoing appellate review. This was on display in Matthews v. State, 136 Nev. Adv. Op. 38 (2020), where the Court reversed a conviction because the district court failed to make findings when denying an equal protection objection to the peremptory challenge of a venire member.

In Matthews, the State exercised one of its peremptory challenges to an African-American woman from the venire. Matthews objected based on Batson v. Kentucky, 476 U.S. 79 (1986), contending that the peremptory challenge was based on race. The State then proffered reasons for the challenge, referring to the juror’s demeanor in responding to certain questions. Matthews and the State presented conflicting arguments about whether the juror’s demeanor was indeed different than the other members of the venire.

The district court summarily overruled Matthews' objection without making any specific findings or explaining its reasoning. Matthews was convicted. On appeal, Matthews disputed his conviction by claiming that removal of the juror violated his constitutional rights under the Equal Protection Clause. Both sides agreed that the only step of the Batson analysis at issue was whether the district court “undert[ook] a sensitive inquiry into such circumstantial and direct evidence of intent as may be available and consider[ed] all relevant circumstances….”

The Court minced no words when it came to the absence of any findings to support the district court’s ruling: “[We have] repeatedly implored district courts to . . . clearly spell out their reasoning and determinations… When the district court fails to do so, this court may not be able to give the district court's decision the deference that it would normally receive.”

The district court “is uniquely positioned to observe” demeanor that cannot be gleaned from a transcript, the Court noted. Because the transcript in Matthews “belied” the State’s non-demeanor explanations, and the district court’s failure to make findings constituted structural error, the Court was “left with no choice” but to reverse and remand for a new trial.

Conclusion

Nelson and Matthews are good reminders to litigants and judges regarding their procedural responsibilities. An appeal from an unappealable order when a writ petition is the only means of obtaining appellate court review is a waste of time and resources. The same is true for a district court decision that lacks written findings. Making the extra effort before a case goes up on appeal will pay off in the long run.  

Debbie Leonard owns Leonard Law, PC, where her practice focuses on appeals before Nevada’s appellate courts, the Ninth Circuit Court of Appeals and administrative agencies.  She served as the 2013-2014 Chair of the State Bar’s Appellate Litigation Section and is Lead Editor of the Nevada Appellate Practice Manual, 2016 and 2018 editions. She is also a mediator and Nevada Supreme Court settlement judge.