Matter of Application of Duong
Matter of Application of Duong
Concurring Opinion
concurring:
While I concur in the result reached by the majority, I write separately to state once again that our rules of appellate jurisdiction are unduly convoluted. This convolution routinely causes parties as well as this court unnecessary effort and analysis. Thus, in my view, a notice of appeal filed before resolution of tolling motions should be deemed valid for the purpose of invoking this court’s jurisdiction.
Opinion of the Court
OPINION
Hung Phuc Duong appeals from a district court order denying his petition to seal criminal records. The State has moved to dismiss the appeal. According to the State, Duong’s notice of appeal was untimely and failed to vest jurisdiction in this court because it was filed more than thirty days after Duong’s counsel received a copy of the court’s order and because Duong’s motion for reconsideration did not toll the time within which to appeal. The State never served written notice of the order’s entry on Duong, however, so NRAP 4(a)(l)’s thirty-day deadline for filing a notice of appeal was not activated. And, although the motion for reconsideration did not toll the time within which to appeal, Duong’s alternative motions to amend or make additional findings of fact or to alter or amend the judgment did. The notice of appeal was not filed too late, but rather too early because the district court had not resolved the alternative motions. After the district court formally resolved the tolling motions, Duong filed an amended notice of appeal. We conclude that we have jurisdiction and there is no jurisdictional basis for dismissing this appeal.
On February 11, 2002, Duong petitioned the district court under NRS 179.245 to seal all criminal records relating to his
On April 2, 2002, Duong moved the court to reconsider its order, or to clarify it and enter more specific findings and conclusions, or to alter or amend the judgment. On April 29, 2002, the district court entered a minute order denying the motion, but also explaining its reasons for denying the petition to seal Duong’s criminal records. On May 8, 2002, the court entered a written order summarily denying Duong’s motion for reconsideration. This order also contained a certificate of mailing, but again the State did not serve Duong with written notice of this order’s entry.
On May 21, 2002, Duong filed a notice of appeal from both orders.
On October 16, 2002, the State moved to dismiss the appeal. The State first argues that Duong’s notice of appeal was filed too late under NRAP 4(a)(1) because it was filed more than thirty days after Duong’s attorney received a copy of the order denying his petition. The State is mistaken.
The time for filing a notice of appeal in most civil proceedings is governed by NRAP 4(a)(1), which provides that the time begins when the written judgment or final order is entered and expires thirty days “after the date of service of written notice of the entry of the judgment or order appealed from.”
The State also argues that Duong’s April 2, 2002 motion for reconsideration did not toll the time within which to file the appeal under NRAP 4(a)(2). Although a motion for reconsideration is not a tolling motion, Duong’s alternative motions to amend or make additional findings of fact under NRCP 52(b) or to alter or amend the judgment under NRCP 59 were tolling motions.
Accordingly, we deny the State’s motion to dismiss this appeal, and we reinstate the briefing schedule. The State shall have thirty days from the date of this opinion within which to serve and file its answering brief. Thereafter, briefing shall proceed in accordance with NRAP 31(a)(1).
Three days are added to the thirty-day appeal period if service is accomplished by mail. See NRAP 26(c).
Rust v. Clark Cty. School District, 103 Nev. 686, 688, 747 P.2d 1380, 1382 (1987).
NRAP 4(a)(2).
Reference
- Full Case Name
- In the Matter of the Application of HUNG PHUC DUONG for an Order to Seal Records. HUNG PHUC DUONG, Appellant, v. THE STATE OF NEVADA, Respondent
- Cited By
- 2 cases
- Status
- Published