WOODSON VIP v. SUCKOLL (2021)

ORDER DISMISSING APPEAL

Our review of the record on appeal reveals a jurisdictional defect. In the proceedings below, after the district court allowed respondents to serve Woodson by publication, and upon respondents’ application, the district court entered a default judgment and a subsequent judgment for punitive damages against Woodson. She subsequently filed a pro se motion to set those judgments aside, purportedly under NRCP 60(c). The district court construed the motion as one for relief under NRCP 60(b)(1), and it denied the motion in a written order applying all of the factors set forth in Rodriguez v. Fiesta Palms, LLC, 134 Nev. 654, 657, 428 P.3d 255, 257 (2018), for determining whether relief is warranted under that rule (the Yochum ² factors).

Woodson then retained counsel and, 30 days after she was served with notice of the written order denying NRCP 60(b) relief, filed another motion to set the judgments aside. In the motion, Woodson conceded that she did not argue the proper standard in her initial motion, and she proceeded to argue for relief under NRCP 60(b)(1) and the Yochum factors. The district court entered a written order denying the motion, concluding that it was actually a motion for reconsideration of the court's prior order denying NRCP 60(b) relief. On that ground, the district court concluded that the motion was an untimely motion for reconsideration under EDCR 2.24(b) and that, even if the motion was timely, it failed on its merits. Woodson now appeals in pro se from that order.

Because we agree with the district court that Woodson's second motion was effectively a motion for reconsideration of the district court's prior order applying the Yochum factors and denying relief from the judgments under NRCP 60(b)(1), we construe the order denying that motion as an order denying reconsideration, see Brown v. MHC Stagecoach, LLC, 129 Nev. 343, 345, 301 P.3d 850, 851 (2013) (providing that the appellate courts look to what an order actually accomplishes in determining its appealability), which is not appealable.³ Arnold v. Kip, 123 Nev. 410, 417, 168 P.3d 1050, 1054 (2007) (“[A]n order denying reconsideration is not appealable ․”). We therefore lack jurisdiction to review the district court's order, and we

ORDER this appeal DISMISSED.

FOOTNOTES

2.   Yochum v. Davis, 98 Nev. 484, 653 P.2d 1215 (1982), overruled on other grounds by Epstein v. Epstein, 113 Nev. 1401, 1405, 950 P.2d 771, 773 (1997).

3.   Even if this court might feasibly construe Woodson's notice of appeal, which designates only the order denying her second motion to set aside, as also challenging the original order denying NRCP 60(b) relief, see Abdullah v. State, 129 Nev. 86, 90-91, 294 P.3d 419, 421-22 (2013) (providing that an appeal will not be dismissed for failure to designate an appealable order if the intent to appeal from such an order can reasonably be inferred from the text of the order referenced in the notice and the respondent is not misled), the notice of appeal was not timely filed with respect to that order. See NRAP 4(a)(1) (providing that a notice of appeal must be filed within 30 days after service of written notice of entry of the order appealed from, unless a timely tolling motion is filed). And Woodson's second motion to set aside, which she filed 30 days after having been served with notice of the initial order, was not a timely tolling motion. See AA Primo Builders, LLC v. Washington, 126 Nev. 578, 585, 245 P.3d 1190, 1195 (2010) (providing that a motion for reconsideration seeking a substantive alteration to an appealable order constitutes an NRCP 59(e) motion with tolling effect if it is, among other things, timely filed); see also NRCP 59(e) (providing that a motion to alter or amend an order must be filed within 28 days after service of written notice of entry).