WILMINGTON TRUST II 2006 v. FORT APACHE HOMES INC (2022)

ORDER DISMISSING APPEAL

A review of the record revealed a potential jurisdictional defect. Specifically, none of the designated orders were appealable due to an intervening August 14, 2019, district court order setting aside the summary judgments, entered upon a limited remand by this court in a previous appeal. See Wilmington Tr., N.A. as Tr. to Citibank, N.A. v. Fort Apache Homes, Inc., Docket No. 78390 (Order Granting Motion for Limited Remand, Aug. 7, 2019). Thus, this court ordered appellant to show cause why the appeal should not be dismissed.

In the response and reply to our order to show cause, the parties agree that this court should dismiss the appeal for lack of jurisdiction.¹ Because the district court's August 14, 2019, order set aside the previous summary judgments, and the order denying appellant Wilmington Trust, N.A.’s renewed motion for reconsideration is not independently appealable, we agree with the parties and dismiss this appeal for lack of jurisdiction. NRAP 3A(b) (outlining appealable determinations).

In its reply, respondent Port Apache Homes, Inc., requests that we order Wilmington Trust to pay for its attorney fees on appeal because the appeal was frivolous. See In re Herrmann, 100 Nev. 149, 152, 679 P.2d 246, 247 (1984) (holding that this court may award attorney fees where the appellant raises no new legal arguments or when an appeal is frivolous); NRAP 38. After review of the record, we reject Fort Apache's request because we do not view the appeal as frivolous. See Woods v. Label Inv. Corp., 107 Nev. 419, 427, 812 P.2d 1293, 1299 (1991) (declining to grant an award of attorney fees where the appeal was brought in good faith), disapproved of on other grounds by Hanneman v. Downer, 110 Nev. 167, 871 P.2d 279 (1994). The district court order denying Wilmington Trust's renewed motion for reconsideration was unclear as it appears to frame Wilmington Trust's motion as seeking to set aside the earlier summary judgments, even though the district court had already set them aside. Because the order was unclear, Wilmington's appeal was not frivolous despite our decision here that it is subject to dismissal. Thus, Fort Apache must pay its own attorney fees. Accordingly, we

ORDER this appeal DISMISSED.²

FOOTNOTES

1.   We note that respondent Via Valencia/Via Ventura Homeowners’ Association filed a limited joinder to Fort Apache's reply to the order to show cause, agreeing that the appeal should be dismissed for further proceedings below.

2.   The Honorable Mark Gibbons, Senior Justice, participated in the decision of this matter under a general order of assignment.