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IN THE SUPREME COURT OF THE STATE OF NEVADA

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Electronically Filed
ZACH COUGHLIN;

Appellant.

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vs.

Jun 07 2013 08:37 a.m.

)
Tracie K. Lindeman
)
Clerk of Supreme Court
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) Supreme Court No: 62337
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) District Court No: CV11-03628

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SBN

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Respondents

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NOTICE OF FILING OF AMENDED NOTICE OF APPEAL in 61383 AS

TO ALL ORDERS IN CV11-03628 INCLUDING 3/30/12 oRDER AND
RECENT ARREST BY RJC BAILIFFS INCIDENT TO REQUESTING
SENSITIVE DOCUMENTS FROM FILING OFFICE BY WAY OF
BAILIFFS AND WASHOE COUNTY JAIL'S DEPRIVING COUGHLIN
RIGHT TO ACCESS JUSTICE IN ANY MEANINGFUL WAY; AND
MOTION FOR OR REQUEST FOR EN BANC RECONSIDERATION OF ANY
ORDER DISMISSING COUGHLIN'S APPEAL
Petitioner, ZACHARY BARKER COUGHLIN, representing himself., files
this Motoin for STay of the summary eVICTION oRDERs of 10/25/11 and
10/27/11 in RJC 1708, and of the 1/11/12 denail fo Couglhin's 12/30/11 Motion for
STay in 03628, and the 11/8/11 denial of Coughlin's MOtion for STay in CV1103051 pursuant to NRS 40.385 and NRAP 8.
FACTS.ANALYSIS
The facts pertaining to this motion are:

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Docket 62337 Document 2013-16653

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CJS LANDLORD 1528 to 1577, Section C, STATUTORY DISPOSSESSION

PROCEEDINGS, SUMMARY PROCEEDINGS of the CJS Couglin attached an
exhibit is pretty instructive:
CJS LANDLORD 1528 to 1577, Section C, STATUTORY DISPOSSESSION
PROCEEDINGS, SUMMARY PROCEEDINGS of the CJS Couglin attached an
exhibit is pretty instructive:
1. In General: Nature and existence of remedy Purpose Necessity of landlordtenant relationship Scope of remedy -Recovery of rent, damages, or other claims
Effect of, or on, other remedies Time to sue and limitations 1535 Jurisdiction
1536 Stay of proceedings
2. Right of Action and Grounds: a. Grounds Generally 1538 Holding over
Breach of lease Nonpayment of rent h. Conditions Precedent Generally Demand of,
or notice to pay, rent Notice to perform covenants or conditions 1544 Notice to
quit Service of notice; waiver by landlord after service
3. Defenses: 1546 Limitation on available defenses generally Payment of rent
Breach of covenant by lessor 1549 Setoffs and counterclaims
4. Parties: Persons entitled to sue; parties plaintiff Persons against whom action
lies; parties defendant Intervention
5. Pleadings: Generally; complaint, petition, or affidavit 1554 Answer,
counteraffidavit, and subsequent pleadings Amendments 1556 Issues, proof, and
variance
6. Evidence, Trial, and Disposition:
a. Evidence and Burden of Proof: 1557 Burden of proof 1558
Presumptions; retaliatory evictions Admissibility of evidence 1560 Weight and
sufficiency of evidence
b. Conduct of Proceedings; Trial: Generally 1562 Determination of
questions of fact 1563 Dismissal or nonsuit; directed verdict 1564 Jury
trial; instructions
c. Disposition: Verdict and findings 1566 Judgment or final order Writ
or warrant of possession 1568 -Stay or injunction 1569 Award of costs and
attorney's fees Bonds and enforcement of liability thereon 1571 Effect of
proceedings Recovery for wrongful dispossession
7. Appellate Review: 1573 Stay pending appeal 1574 Notice of appeal; time
to appeal 1575 Grounds for review; preservation of issues 1576 Standard
of review Disposition of appeal"
AMJUR LANDLORD 840 to 888
V. Rights, Duties, and Liabilities of Parties C. Particular Rights of Landlord
6. Landlord's Possessory Remedies b. Summary Possessory Actions
(1) In General

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(a) Generally: 840. Purpose 841. Statutory nature; relationship with

common-law remedies 842. Construction 843. Application to holdover tenant
844. Determination of right to possession
(b) Notice to Quit and Demand for Possession: 845. Generally 846.
When given 847. Service 848. Requisites; sufficiency 849. Waiver
(c) Process, Summons, and Complaint: 850. Constitutional right to
process; service of summons 851. Posting, constructive service 852. Form of
petition or complaint
(d) Landlord's Right to Damages: 853. Generally 854. Restatement
rule 855. Attorney's fees
(2) Grounds for Termination of Lease and Recovery of Possession: 856.
Violation of obligation of tenancy; generally 857. Nonpayment of rent or late rent
payment 858. Habitual late payment 859. Illegal activity; drug-related evictions
860. Lease change
(3) By and Against Whom Maintainable: 861. Parties; generally 862. Action
against holdover tenant after premises leased to third party 863. Actions involving
statutory tenants 864. Effect of employment relationship
(4) Defenses, Setoff, and Counterclaims:
(a) In General: 865. Generally 866. Effect of raising defenses
(b) Particular defenses: 867. Defenses allowed; generally 868.
Disputed title 869. Landlord's breach of implied warranty of habitability
870. Landlord's waiver of breach; acceptance of rent payment 871. Landlord's
waiver of breach; acceptance of rent paymentHabitual late rent payment
(c) Landlord's Retaliatory Conduct: 873. Generally 874. 877.
CounterclaimsLease provisions Under the Uniform Residential Landlord
and Tenant Act 875. Under the Restatement
(d) Counterclaims; Setoff; Right to Cure: 876. Counterclaims 872.
Equitable defenses; injunction 878. CounterclaimsPermitted or
compulsory counterclaims 879. Setoff 880. Tenant's right to cure 881.
Tenant's right to cureUniform Residential Landlord and Tenant Act
Conclusiveness; res judicata
(5) Judgment: 882. Judgment and enforcement 883. Liability of landlord for
wrongful eviction 884.
(6) Appeal: 885. Mootness 886. Procedural issues 887. Standards of
review 888. Bond; continuing payment of rent
The Reno Justice Court's own "Appeal Information" handout held out to the
public and provided both in the Civil Division Filing Office and as the following
link, make clear that there is no "appeal bond" for the appeal of a summary eviction
(clearly making a distinction as to "formal evictions"..."APPEAL INFORMATION
Any pmty dissatisfied with the Court's decision may appeal it. If it is a Small
Claims action the appeal must be filed within five judicial days after the decision
date (excluding court date, weekends and holidays). If it is a Justice c.ourt civil
action, the appeal must be filed no later than twenty straight days after service of
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Notice of Entry of Judgment. If it is on a decision for a, formal eviction taken

through Justice Court, such as an Unlawful Detainer, the appeal must be filed
within ten judicial days following the decision. Justice Court Rule 72B, 98,
N,R.S. 40.380....The fee indicated above for issuing a supersedeas bond will not be
charged at the time the appeal is filed unless the party appealing the action is at that
time filing a supersedeas bond. All other fees are payable at the time the appeal is
filed or anytime thereafter. Proceedings will not be stayed even after an appeal has
been filed unless a supersedeas bond has been posted. Usually, this bond will be for
the amount of judgment, any costs, plus interest as applicable for one year for
Small Claims or Justice Court civil action. If the case being appealed is for a formal
eviction and it is being appealed by the tenant, the supersedeas bond will be set by
the deciding judge. All fees must be paid for in CASH or with a check on an
ATTORNEYS' TRUST ACCOUNT ONLY.") , further establishing that both all
four of the $250 bonds Couglin deposited therein (on 10/17/11, 10/25/11, 12/13/11,
and 12/22/11) should have operated under NRS 40.385 to afford Couglin an
automatic, non-discretionary stay of the summary eviction effectuated on 11/1/11
(too early by the WCSO given the implication of page 1 line 12-16 of the Motion
for Stay of 11/28/06 in Anvui, which indicates the Constable/Sheriff in Clark
County obeys the statutory mandate that such process serves post on an evicted
tenant's door such 24 hour summary eviction lockout orders for no less than 24
hours prior to returning thereto to effectuate a lockout. Such is a matter of public
importance, as Couglin's qui tam action of 10/26/11 in CV11-03126 identified.
Instead, the WCSO, WCDA, WCPD, RJC, RCA, RMC, and RPD have retaliated
against Couglin repeatedly (arrest over ten times since that 10/26/11 filing and
summarily evicted nearly ten times by the RJC, particularly where the criminal
trespass conviction at issue in 61901 and 62337 turns upon the "patenly invalid
order" exception to the collateral bar rule and the dicates of NRS 40.253's "within
24 hours" requirement (which is not a mandate to the WCSO to race over to a
tenant's rental right after a summary eviction hearing, as it did in RJC RCR12-374
on 3/15/12, shortly before the NVB Hearing that Judge Beesley (the President of
the SBN in 2004 when Character and Fitness Committee members Kevin Kelly
(whom owns the Spearmint Rhino strip club in Vegas and moralized at Coughlin
for house in a ridiculously histrionic display in March 2002, with C&F Member
Michael Rowe, Esq. co-signing such a ridiculous display (no indication of whther
the same RPD Detective Ytrubide whom fraudulently had Couglin charged with a
felony and gross misdemanor and arrested incident thereto (with a gun pointed at
Coughlin's head from four feet away for no good reason, in his back yard, where
the RPD had trespassed without a warrant) upon an accusation that Coughlin's
alleged submission on the 10th judicial day (1/3/13...the allegation is that while
Coughlin was allegedly subject to the 12/20/12 TPO in RCP12-607 obtained by the
SBN (Clerk of Court Laura Peters filled out the applciation, then when they figured
out the employee couldn't seek it for themself, she whited out her name and had
Patrick King, Esq. sign it but they still used the summary "Exhibit 1A" that seems
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to have been written by Peters, referring to King in the third person and just
generally evincing a complete and utter lack of first year law school legal
concepts..then again, maybe that is an indication that is was actually drafted by
Asst Bar Counsel King....to file a NRCP 52(b), or 59 motion as to the 12/14/12
FOFCOL on appeal in 62337 was somehow violative (despite NRS 33.360, and the
failure to meet the jurisdictional prerequisite's under NRS 33.270 of posting a
security bond, or filing a verified TPO application with anything in the way of facts
verified therein (all the allegations in the 12/20/12 TPO Application in SBN v
Coughlin for the Worplace Harassment TPO in RJC RCP2012=607 where
contained in an unsworn, unincorporated, unattributed "summary" in "Exhibit 1A"
that was not on the mandatory "Form 4" "continuation page", etc., etc.). the felony
EPO violation charge concerns an allegation that Coughlin had a NRCP 15
Amendment or Supplemental to the purported 1/3/11 NRCP 52(b), NRCP 59(a),
(3), NRCP 50 filing in as to the 12/14/12 FOFCOL now on appeal in 62337 (Peters
admits to having both given Coughlin permission to fax file during a 9/11/12
communication and expressing the state of the forum in which Coughlin's formal
disciplinary matter was being held (SCR 99 grants jurisdiction, as a Waters "arm of
the court" to hold a disciplinary hearing, apparently in a quasi-court, as the SBN
before a Panel assembled by the NNDB.
Dun to the Thanksgiving Holiday, counsel for Anvui did not have an opportunity to
review and revise Dragon's proposed Order and counsel for Anvni has just learned
that the Court signed Dragon's version of the proposed Order on November 22,
2006. Counsel for Dragon respectfully submits that the Order is not in compliance
with Nevada Law inasmuch as it cans for execution of the eviction within 24 hours
of service of smite. NRS 40.360 states that "When the proceeding if for an unlawful
detainer after the default in the payment of rent, and the lease nr agreement under
which the rent is payable has not by its terms expired, execution upon the judgment
kiljapt be issued_un amArgsntcyo_f the judemer4...." Because the Order calls for
execution within 24 hours rather than 5 days, an emergency ex parte stay pending
appeal is necessary. Anvui dba lienrah's Bistro respectfully disagrees with the
Court's November 22, 2006 Order and has filed a Notice of Appeal of same. Anvui
haa been operating as Hannah's Bistro at the Lamed Premises for over a year now
'elder a commercial lease. Anvai has a significant customer base and good
reputation within the community. Anvui will sustain significant damages to its
business and reputation if it is required to vacate the premises and shut down
pending its appeal to the Nevada Supreme Court of the Court's November 22, 2006
Summary Eviction Order. As a result, Alma requests that this Court enter an
emergeney cxp parte order staying execution of the Summary Eviction Order
pending its Appeal to the Nevada Supreme Court.
http://www.washoecounty.us/repository/files/12/APPEAL
%20INFORMATION.pdf
"Proceedings will not be stayed even after an appeal
http://caseinfo.nvsupremecourt.us/public/caseView.do?csIID=16237
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At Page 1 line 20-22 of the 11/28/06 "Emergency Motion for Stay Pending
Appeal" in Anvui, it reads: "At 2:00 yesterday (Monday, November 27, 2006),
Hannah's Bistro was served by the Constable with the November 27, 2006 eviction
order. This morning, Tuesday, November 28, 2006 at 11:00 am, the Constable
returned and is in the process of evicting Hannah's Bistro." (see filing of
11/28/2006 Motion - Motion for Stay Filed Motion for Stay. Pending Appeal
(filed via fax). 06-24335 ) Also, the rationale supporting a stay in Anvui applies at
least as well here, should one replace "Hannah's Bistro" with Coughlin and
"restaurant" with "law practice/law license/countering all the spurious allegation
and prosecutions Coughlin has faced incident to the wrongfull summary eviction in
1708 and wrongful denial of the non-discretionary stay provided by NRS 40.385.
"Subdivision (d) is amended to add the exceptions for injunctions and receiverships
consistent with the amendments to subdivision (a). The provision retains the
Nevada rule that a stay upon appeal is effective when the supersedeas bond is filed
in lieu of the federal provision that the stay is effective when the court approves the
supersedeas bond. In determining whether to issue en Emergency Stay, the Court
considers four factors: (1) whether the object of the appeal will be defeated if the
stay or injunctio.n is denied; (2) whether petitioner will suffer irreparable or serious
injury if the stay or injunction is denied; (3) whether respondent will suffer
irreparable or serious injury if the stay Or injunction is granted; and (4) whether
petitioner is likely to prevail on the merits in the appeal. See NRAP R(cI). AR
shown below, Hannah's Bistro is entitled to a stay of the execution of the eviction.
A. WITHOUT AN EMERGENCY STAY, THE OBJECT OF THE APPEAL,
HANNAH'S BISTRO'S LEASEHOLD INTEREST, WILL BE DEFEATED
Without this Court's Emergency Stay, the District Court's Order terminatre.
thrinah's Bistro's leasehold interest as of November 28, 2006. This defeats the
object of the Appeal. Appellant Hannah's Bistro is an upscale restaurant that has
occupied the Leased Premises for over a year new. The lease term for Hannah's
Bistro does not end until September 1, 2015 With Hannah's Bistro having the eight
to one extended term of 10(ten) years, which would extend the WM of the lease to
September 1, 2025. See Exhibit 4. Thus, Hannah's Bistro has another 19 years
remaining under the lease. The District Court's Order terminates the lease as of
November 28, 2006, 2006. If Hannah's Bistro is not restored to the premises and a
stay is not entered, Hannah's Bistro's business operations will permanently
interrupted, resulting in the closure liArmAh'A Bistm, the loss of all employees
(including management), the loss of significant income, and tho inAe ef its good
will and customer base. This Court should issue a stay to prevent the object of the
Appeal, Hannah's Bistro's leasehold interest and Hannah's Bistro's business
operations, from being defeated. B. WITHOUT AN EMERGENCY STAY,
HANNAH'S BISTRO WILL SUFFER IRREPARABLE HARM This Court should
issue a Stay and return the Leased PTEMiSeS to Hannah's Bistro to prevent
Hannah's Bistro from suffering the irreparable harm of losing its leasehold interest.
An interest in land, by definition, is a unique asset that cannot be replaced. See
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Dixon v. Thatcher, 103 Nev. 414, 416, 742 12.2d 1029, 1030 (1987) (holding that
in the context of injunctive relief, the loss of real property rights is irreparable harm
because real property and its attributes are unique). Likewine, Hannah's Bistro's
leasehold intereat in the property and ITS rights under the purchase agreement
constitutes an interest in land, and by definition, are unique. Accordingly, Hannah's
Bistro will suffer irreparable harm at the loot of that interest. The closing of
Hannah's Bistro's doors will irreparably damage Hannah's Bistro by the loss of
Hannah's Bistro's employees (including management) as well as the loss of
Hannah's Bistro's customers, good will, and reputation. C. A STAY DURING THE
PENDENCY OF Int APPEAL CAUSES NO IRREPARABLE HARM TO
LANDLORD the stay. As a result, Hannah's Bistro requests that when this Court
issues RD Order staying In contrast to the irreparable harm that Harmah's Bistro
will safer without the stay, the Respondent/Landlord suffers no irreparable harm if
this Court were to issue a stay pending the Appeal. NM 40.335 provides that the in
addition to paying the $250 appeal cost bond (which Hannah'a 13istro has already
done see Exhibit 1), the landlord la protecting beranan the tenant whn retains
possemion of the premises ha.s the obligation. to pay rent during execution of the
eviction and returning Hannah's Bistro into possession of the Leased Premises, that
this Court also order that the monthly rent to be paid during the stay is the Basic
Rent (as set forth in the Lease) as well as normal operating costs (such as Boca
Park Cam charges, property taxes, utilities etc.) but ad 10 disputed item which is
the approximate $20,000/rnonth "bank interest" payment which ia a hotly =tested
issse and the subject of Hannah's Bistro's declaratory judpront action. Furthermore,
if necessary, any cone= of Responderat/Landlord related to the $20,000/manth
"bank interest" payment could be dealt with by the posting of a superseden bond.
D. HANNAH'S BISTRO IS LIKELY TO PREVAIL ON THE MERITS OF ITS
APPEAL As set forth in section 1 above, the lease agreement contains a 90 day
cure provision which gives Hannah's Bistro 90 days from receipt of any "notice of
default" to cure any default under the lease. Hannah's Bistro has paid in full all
Basic Rent for the months of May 2006 through September 2006. In adriitinn, ell
monthly operating expenses for Hannah's Nato (such as Boca Park CAM, utilities,
property taxes, etc.) are also paid in full through September 2006, with September's
operating expenses being paid after the filing of Hannah's Opposition but proof of
payment for September was supplied to the Judge in open Court at the hearing on
November 22, 2006. See Hannah's Bistro's Opposition to Defendant's Motion for
order to Show Cause at 2:8-14, attached as Exhibit 5. As a result, Hannah's Bistro is
likely to prevail on the merits of its appeal and likely to pmve that :Hannah's Bistro
is NOT in default under the lease and that no lease obligation has ever been past
due for more than 90 days from receipt ef any "notice of default." In addition,
Hannah's Bistro is likely to prevail in proving to this Court that the lease does not
require the payment of any "bank interest" to the landlord and certainly not
$20,000/month. IV. Conclusion Appellant Hannah's Bistro respectfully requests
that this Court immediately issue an order (1) staying execution of the November
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22, 2006 samrnary eviction order pending conclusion of this appeal; (2)
immediately returning possession of the Leased Premises to Hannah's Bistro to
continue operating its restaurant pending this appeal; (3) ordering that Hannah's
Bistro shall pay rent during the day pursuant to NRS 40.385 which is satisfied by
the payment of Basic Rent and typical operating expenses such as Boca Park Cam
charges, property taxed, utility hills, etc; (4) ordering that Hannah's Bistro is not
required to pay "bank interest'. pending the appeal to satisfy its rental obligations
under NRS 40.385. Hartnah's Bistm recreate any further just and equitable relief
that the Court deems appropriate or necessary under the circumstances."
The 2JDC failed to maintain a copy of the Notice of Appeal (which also
functioned as a Motion for Stay pursuant to NRS 40.385) that Coughlin submitted
alongwith his 10/19/11 Motion to Proceed In Forma Pauperis. Coughlin must not
be penalized for the the failure of the 2JDC clerks to even mark such as received
and maintain a copy, regardless of whether a filing fee was presented at such time.
The fact that Judge Berry, in CV11-03051 ruled on Coughlin's 11/8/11 Emergency
Motion for Stay means either that the 2JDC waived the filing fee or that Couglin
paid it.
Couglin absolutely swears under penalty of perjury pursuant to NRS 53.045
that he deposited another $250 with the RJC on 12/22/11 along with his NRS
40.385 Motion for STay, NOtice of Posting Supersedeas Bond in addition to the
$250 he deposited with the RJC on 12/13/11 for the exact same purpose and asks
that the RJC be ordered to return the entire $500 to Couglin immediately should
this Court find that the respondent's failure to return Coughlin's $700 deposit
satisfies NRAP 7, or, atlerantively, should such not be demed to satisfy NRAP 7,
Couglhin asks this Court to treat the $500 the RJC continues to withhold from
Coughlin (much as a stay has been withheld, or any sort of response to the various
nrs 1.230 1.235 disqualification motions Couglhin has filed, includign those in
RCR12-065630 (involving the same ECOMM 911 dispatchers that RPD Detective
Yturbide's wife, Jodi Yturbide, is counted amongst) and in RCR12-067980.
http://books.google.com/books?
id=SKcAdm4_8wIC&pg=PA335&lpg=PA335&dq=40.253+40.380&source=bl&ot
s=xo8sDYkJDm&sig=GCCLHGoqt49z8uasNncAH4geALc&hl=en&sa=X&ei=W
06cUZXLKYXayAGwkYDABg&ved=0CEkQ6AEwBA#v=onepage&q=40.253%
2040.380&f=false

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http://www.leg.state.nv.us/session/76th2011/bills/ab/ab398_en.pdf
Not citing to it as a published opinion, but the 11/29/06 Order granting such
a stay in Anvui is instructive (though its seems at odds with the treatment given to
NRS 40.385 in the transcript attached to a filign in Venetian v. Two Roads in that
such order seems to posit that the District Court would have some discretion as to a
"continued stay", whereas, the statute NRS 40.385(1) seems to only allow
discretion as to increasing the supersedeas bond, an only where the commercial
tenant's rent is over $1,000 a month (and Coughlin's rent at his former home law
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office was $900, which he pointed out repeatedly, such as at MROA 1553 email to
the RJC:
"a stay From: Zach Coughlin (zachcoughlin@hotmail.com) Sent: Thu 11/24/11
3:19 AM To: kstancil@washoecounty.us
http://lawlibrary.nevadajudiciary.us/documents/landlordTenantForms0612/Landlor
d_TenantForms_31to36/AppealSummaryEvictionJusticeToDistrictCourt.my $2275
was ruled the supersedeas bond, and retained by the court, yet the eviction was not
stayed...rent was less than $1000, I am confused. ... NRS 40.385 Stay of execution
upon appeal; duty of tenant who retains possession of premises to pay rent during
stay. Upon an appeal from an order entered pursuant to NRS 40.253: 1. Except as
otherwise provided in this subsection, a stay of execution may be obtained by filing
with the trial court a bond in the amount of $250 to cover the expected costs on
appeal. In an action concerning a lease of commercial property or any other
property for which the monthly rent exceeds $1,000, the court may, upon its own
motion or that of a party, and upon a showing of good cause, order an additional
bond to be posted to cover the expected costs on appeal. A surety upon the bond
submits to the jurisdiction of the appellate court and irrevocably appoints the clerk
of that court as the suretys agent upon whom papers affecting the suretys liability
upon the bond may be served. Liability of a surety may be enforced, or the bond
may be released, on motion in the appellate court without independent action. 2. A
tenant who retains possession of the premises that are the subject of the appeal
during the pendency of the appeal shall pay to the landlord rent in the amount
provided in the underlying contract between the tenant and the landlord as it
becomes due. If the tenant fails to pay such rent, the landlord may initiate new
proceedings for a summary eviction by serving the tenant with a new notice
pursuant to NRS 40.253." That ORer in Anvui granting such a stay raqd:
"Appellant has attached to its motion for an emergency stay a copy of a $250 cost
bond posted with the Clark County Clerk on November 27, 2006. It appears,
therefore, that appellant has complied with NRS 40.885. Further, we have
considered the factors set forth in NRAP 8(c) and conclude that these factors
militate in favor of a stay. Also, as the summary eviction has been completed, we
grant appellant's request that it be restored to the premises. Accordingly, we hereby
order that possession of the leased premises be returned immediately to appellant
and we stay any additional action to enforce the summary eviction order pending
the hearing scheduled in the district court for December 1, 2006, on appellant's
motion for a stay. At the hearing, the district court shall determine the propriety of a
continued stay pending appeal. In the event the court grants a continued stay, it
may, if deemed. necessary, order appellant to file an. additional bond to cover the
expected costs on appeal, and shall determine the amount of monthly rent that
appellant is required to pay to respondent under the parties' lease agreement during
the pendency of this appeal."
MROA 1705 to 1709 is Couglin's 12/11/11 email to the RJC regarding NRS
40.385.
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Couglin pointed this out a few times in 1708 and 03628 (see MROA 1633,
1695, 1708 (ironic number, no?)..."FW: appeal brief date request pursuant to N. S.
Ct. instrucxtion From: Zach Coughlin (zachcoughlin@hotmail.com) Sent: Mon
12/05/11 12:34 PM To: cfranden@mail.co.washoe.nv.us;
kstancil@washoecounty.us 1 attachment
AppealSummaryEvictionJusticeToDistrictCourt.pdf (199.1 KB) Dear Chief Civil
Clerk Stancil and Acting Court Clerk Franden, I am writing to see about what bond
I need to pay. I have previously attempted to pay a bond, and, further, Judge
Sferrazza held on to basically my last $2,275 on earth after seemingly reclassifying
the impermissible rent escrow deposit I was forced to make to litigate habitability
issues under a NRS 40.253 summary eviction proceeding/"Trial"...That amount was
held onto as a bond of sorts, but Casey Baker got an order signed that also got that
amount awarded to his client, until I got that Order amended...I do know I have
gone to the filing offices and attempted to pay a filing fee or a bond, of at least
$250 and was denied the opportunity to do so, sometimes with commentary
directed at "my ass" that may or may not have included have inanimate objects
shoved up it....I wish to avoid any jursidictional dismissal of my appeal...It is
unclear what bond or fee I am required to pay and to whome. Judge Sferrazza did
(at least orally in court) approve my IFP with respect to the appeal in Justice Court
(I am not sure whether the Order as entered (and drafted by CAsey Baker reflects
that, but...subsequent comments from RJC staff support a finding that the rather
small fee for an appeal in RJC was waived pursuant to an IFP being granted...Mr.
Franden, I did file a Notice of Appearance for the District Court case number for
the appeal of the RJC Summary Eviction ORder cv11-03051, however, that case is
not appearing under my eflex account, as such I do not believe I can make any
payment of any fee or bond due... (MROA 1626)...Appeals from Orders for
Summary Eviction All tenants filing an appeal must post a bond of at least $250. If
you wish to stop the eviction pending your appeal and are a tenant of a residential
property whose monthly rent is $1000 or less, this $250 is all you are required to
pay. If you are a tenant of residential property whose monthly rent exceeds $1000
or a tenant of a commercial property you must post bond of $250 but the court can,
on its own or on the motion of the landlord, increase the bond. See NRS 40.385(1)
it is unclear whether the court views me as a residential tenant or a commercial
tenant. I pled as a commercial tenant, and therefore, given the No Cause EViction
notice (which, obviously did not allege non payment of rent or other non monetary
default on the lease), the summary eviction proceedings under NRS 40.253 are not
allowed to evict a commercial tenant such as myself (I ran both a law practice and a
mattress business out of the subject property....)...the rent was under $1,000....but if
I am a commercial tenant, the bond may be $250, or even more....however, that is
for non payment of rent notice eviction commercial tenants, not no cause one's like
my case...if I am viewed as a residential tenant or classified as such, then I think
$250 bond is owing, and I made several attempts to pay, including to Drema and a
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brunette RJC clerk whose name escapes me now (Ms. Stancil, I am referring to the
clerk whom was sitting next to Bonnie today) and maybe one other clerk. I kept
getting bounced out of the RJC filing office, despite entering the line and even the
window well prior to 5pm....as such I believe any bond paid at this point should
relate back to those dates, which are further complicated by the amended Eviction
ORder and treatment of the rent escrow/supersedeas/appeal bond in Judge
Sferrazza's Orders of oct 27, 2011 and NOvember 7, 2011 and the clause in such
orders related to a rulign on my Motion To STay before Judge Berry, which has not
been ruled on yet. Further, it would seem a stay should have been automatically
granted when Judge Sferrazza orally announced his ruling on October 26, 2011 that
he was retaining the $2,275 rent escrow, reclassifying it as a bond of sorts for the
appeal.... I wish to pay what I need to to keep my appeal alive, will you allow me
to?"(MROA 1628)."
see also MROA 1726 lines 1 to 12: ""NOTICE OF POSTING AND
ACCEPTANCE OF SUPERSEDEAS/COST BOND ON APPEAL WHEREAS,
the above-entitled Court issued a Judgment dated October 27, 2011 ordering the
eviction of Tenant from a noncommercial premises (the court's say s this, tenant
says it was his home law office, therefore commercial, regardless, rent was $900)
with rent less than $1,000.00, an appeal was filed on November 2, 2011, with
appropriate fees or waivers, NOW THEREFORE, Appellant Zach Coughlin, Esq.,
and Coughlin Memory Foam posts his Supersedeas/Cost Bond in the amount of
$250, pursuant to NRS 40.385(1). Pursuant to NRS 40.385(1)" see, also MROA
1811, 1926 to 1929, 1932, and especially 1935:
"Sferrazza. Pete From: Sferrazza, Pete Sent: To: Cc: Thursday, December 22, 2011
2:33 PM 'zachcoughlin@hotmail.com'; cdbaker@richardhillaw.com Stancil, Karen
Subject: RE: inventory continued Dear Mr Coughlin: The stay was denied . You
will need to ask the District Court for a stay. Pete Sferrazza From: Zach Coughlin
[mailto:zachcoughlin@hotmail.com] Sent: Thursday, December 22,2011 12:09 PM
To: Sferrazza, Pete; cdbaker@richardhillaw.com Subject: inventory continued Dear
Judge Sferrazza and Mr. Baker, Additionally some rare book are missing, family
photographs/keepsakes/heirlooms/media, I believe the hammer weighted action
caslo 88 key PX 330 Is the model number, I believe, I will have to check ....
Further, this Is all moot at this point as I have filed a Supersedeas Bond of
$250, and according to NRS 40.385, I automatically get a stay of eviction and
am entitled to return to the property and continue in possession. The statute
sets the Supersedeas Bond (which yields a stay> at $250 if rent is under $1000.
unless the Court wishes to rule that I am a commercial tenant. However, if the
court does rule that I am a commercii. . tenant, the No Cause Eviction Notice
in this case, ynder NRS 40.253 makes a Summary Eviction Proceeding
impermissible. as Summary Eviction Proceedings are not allowed against
commercial tenants where only a No cause Eviction Notice is filed. Its one or
the other, but Mr. Hill and Baker cannot have it both ways. Further, the
Courts Order of December 21, 2011 Is just that, and Order, its not an
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agreement, its not a settlement, etc, etc. and the audio record clearly reflects
that. NRS 40.385 Stay of execution upon appeal; duty of tenant who retains
possession of premises to pay rent during stay. Upon an appeal from an order
entered pursuant to NRS 40.253:"
in a Post It NOte Order that was never served on Couglin, or, apparently,
respondent, Judge Sferrazza, dated 12/22/11, (SEE MROA 1937, 1937) reveals an
application of NRS 40.380 despite the fact that 1708 was not a "formal eviction" (at
least through the lens of the 10/25/11 "Trial" date being recharacterized by Jduge
SFerrazza on 10/25/11, as a "continuation of the summary eviction proceeding of
10/13/11"...), as such the "within 10 days" of NRS 40.380 is inapplicable
(regardless, the 10/25/11 Order rendered by Judge SFerrazza not only waived the
filing fees to whatever extent such was not already done by the granting Couglin
IFP statuts on 10/6/11, but furthermore, it reclassified the $2,275 amoutn Couglin
deposited on 10/13/11 (which Couglin deposited in satisfaction of any appeal fees,
bonds, supersedeas bonds, transcript requirements necessary to obtain a stay and
further his appeal.. as satisfying Couglin's "appeal bond" (NOTE: there is not
"appeal bond" in appeals of summary eviction orders...there is a "supersedeas
bond" under NRS 40.385 that one, especially one whose rent is less than $1K, may
deposite an automatically obtain a non-discretionary stay (and the 11/7/11
discretionary making of some such amount to be "three times the monthly rent" is
void for lack of jurisdiciton). see also MROA 1942, 1946, 1960, 1978, 1994,
especially 2040, 2041, 2056, 2061, 2062, 2073, and ESPECIALLY 2175, where
Hill/Baker are nice neough to circle right near where in Coughlin's email the "rent
under $1,000" problems NRS 40.385 presents to respondent), MROA 2224-5, ,
also:
"THERE IS one thing that is really important to remember here, though...why is it
that Richard G. Hill, Esq. and Merliss feel the need to go into all these outrageous
allegations in the context of opposing a TRO or Motion For Stay? Why not just
focus on the relevant facts and law? Is it because NRS 40.385 is so very bad for
their case? Is it because one simply cannot use a Summary Eviction Proceeding
against a commercial tenant according to bright line black letter law in Nevada,
pursuant to NRS 40.253? Is it because they know they have to pick their poison, ie,
either I am a residential tenant and my rent is under $1,000, so under NRS 40.385,
by depositing the statutorily set sum of $250 with the Justice Court I "may" get a
stay during the pendency of the appeal, versus, where I am deemed a "commercial
tenant"....sure the bond can be set somewhere near three times the monthly
rent...but, GIVEN THE FACT THAT BAKER AND HILL CONDUCTED WHAT
(AND THEIR NEUROSURGEON CLIENT WILL UNDERSTAND THIS,
INCLUDING WHETHER OR NOT THEY GOT HIS INFORMED CONSENT
TO IT) WAS, ESSENTIALY, A 'WRONG SITE SURGERY" BY USING A NO
CAUSE EVICTION NOTICE TO EVICT A COMMERCIAL TENANT, IN
DIRECT CONTRAVENTION OF THE EXPRESS DICTATES OF THE BENCH
BOOK, NRS 40.253, AND (MROS 2275) THE ANVUI AND GLAZIER
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DECISIONS OF THE NEVADA SUPREME COURT, MERLISS'S WHOLE

CASE FALLS DOWN LIKE A HOUSE OF CARDS. And cue the sad, mournful
wrongful eviction soundtrack and ensuing litigation....Also, Mr. Hill is curiously
silent with respect to the Lease Agreement (attached herein as Exhibit 1), which, at
Paragraph 10, clearly states: "Resident further may use the premises for any
commercial enterprise, but not for any purpose which unlawful." Likewise, the
Lease Agreement in this matters, at Paragraph 11 holds: "OCCUPANCY:
Occupancy of the premises is limited to 2 adults...and shall be used for a residence
and for other purposes." (Emphasis added). (MROA 2276)...2. Amongst the
property Hill Merliss and Baker wrongfully applied a lien to were har drives,
including those containing sensitive client information. THERE IS EVIDENCE
THAT THOSE HARD DRIVES WERE ACCESSED AND OR COPIED WHILE
IN HILL AND BAKERS POSSESSION! THAT IS AN OUTRAGE OF EPIC
PROPORTIONS. Appellant, ZACHARY BARKER COUGHLIN, Esq.'s law
practice and mattress/furniture business "Coughlin Memory Foam"
("COUGHLIN"), was a commercial tenant at the Property beginning in late
February 2010. Coughlin's rent pursuant to the lease was $900.00 per month (ie,
under the $1,000 limit mentioned in NRS 40.385, and therefore a $250 bond
posting should have yielded a stay, much less the RJC keeping Coughlin's
$2,275...especially where Baker "remixed" Judge Sferrazza's pronouncement of his
ruling from the bench on October 26, 2011, a practice that the weasel Baker
reportedly does whenever possible. When Coughlin "last paid rent" has not been
litigated at all in this case or RJC Rev2011-001708, indeed, IT WAS A NO
CAUSE EVICTION NOTICE that was served in that case, why would a court
spend any time on when rent was last paid. Hill continues to try to paint the court in
clown makeup with his rubbish allegations of how "when rent was last paid" was
this or that. Stop it Richard, you embarass not only yourself, but your brethren in
the legal profession in the process. Hill lies in his typical and patented style (and
further, the undersigned has repeatedly, and does so again herein, state that he has
neither the time nor inclination to respond to every baseless allegation Hill makes,
as such, a blanket denial applies to anything uttered or written by Hill, his associate,
his staff, anyone Hill has every loved, anything Hill has ever touched, gazed upon,
or otherwise besmirched), in his Opposition, a state of affairs which he has
unseemingly passed on to his associate (MROA 2279)."
Additionally, Appellant respectfully submits that the October 27th, 2011 Order is
not in compliance with Nevada Law inasmuch as it calls for execution of the
eviction within 24 hours of service of it. NRS 40.360 states that "When the
proceeding if for an unlawful detainer after the default in the payment of rent, and
the lease agreement under which the rent is payable has not by its terms expired,
execution upon the judgment shall not be issued until the expiration of 5 days after
entry of the judmgent...." NRS 40.360 (3). Execution and enforcement. When the
proceeding is for an unlawful detainer after default in the payment of the rent, and
the lease or agreement under which the rent is payable has not by its terms expired,
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execution upon the judgment shall not be issued until the expiration of 5 days after
the entry of the judgment, within which time the tenant, or any (MROA 2477)
subtenant, or any mortgagee of the term, or other party interested in its continuance,
may pay into court for the landlord the amount of the judgment and costs, and
thereupon the judgment shall be satisfied and the tenant be restored to the tenants
estate; but, if payment, as herein provided, be not made within the 5 days, the
judgment may be enforced for its full amount and for the possession of the
premises. In all other cases the judgment may be enforced immediately. So, to the
extent the RJC chose to read into Respondent's case what was not plead or argued
(the RJC seemed to want to create a non-payment of rent Order where such a claim
was not plead, in which case, turnabout is fair play, and the October 27th, 2011
Order is void for lack of jurisdiction in that is goes against the dictates of NRS
40.360 (3) regarding execution and enforcement. Further, NRCP 62(d), NRS
40.385, and NRAP 7 provide that execution of an Order shall be stayed pending
appeal as long as a bond or equivalent security in the sum of $250 to cover costs of
appeal is fled with the district court. The RJC held on to $2,275 of Appellants
money, more than enough to cover the $250 appeal bond and any reasonable
supersedeas bond (and NRS 40.385 strongly asserts that a supersedeas bond of only
$250 was all required of Appellant where his rent was less than $1,000, as here).
Appellant may obtain a stay pending appeal by complying with the provisions of
NRS 40.385. This statute (at the relevant time in question) provided that if an
appeal is taken from an order of summary eviction entered pursuant to NRS 40.253,
"a stay of execution may be obtained by filing with the trial court a bond in the
amount of $250 to cover the expected costs on appeal." NRS 40.385(1). The statute
further provides that if the subject lease is for commercial property and the monthly
rent exceeds $1,000, the district court "may, upon its own motion or that of a party,
and upon a showing of good cause, order an additional bond to be posted to cover
the expected costs on appeal." Id. Judge Sferrazza's November 7, 2011 Order,
purporting to release to Appellant what had earlier been classified as satisfying both
the appeal bond and supersedeas bond, in addition to resetting the(MROA 2478)
amount such a supersedeas bond would entail to an impermissibly high figure,
outside the jursidiction available to the RJC where the Appellant's rent was under
$1,000, and also where the appellant was a commercial tenant and non-payment of
rent was not alleged. So for those keeping score at home, that is about five for five
for Judge Sferrazza exceeding the jursidiction granted to him under Nevada Law in
a manner that resulted in prejudice and irreparable harm to the Appellant and a
windfall to the Respondent (MROA 2479). also MROA 2486-87, 2473, 2803,
3047
MROA 2787 and 2833 contains a misprinted version of Couglin's 3/8/12
Case appeal Statement, the actual, corrcct version on file is attached hereto
(something went wrong with the fonts in trying to reduced the file size of the
MROA...

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873. Generally 874. Under the Uniform Residential Landlord and Tenant Act
875. Under the Restatement 876. Counterclaims 877. CounterclaimsLease
provisions 878. CounterclaimsPermitted or compulsory counterclaims 879.
Setoff 880. Tenant's right to cure 881. Tenant's right to cureUniform
Residential Landlord and Tenant Act 882. Judgment and enforcement 883.
Liability of landlord for wrongful eviction 884. Conclusiveness; res judicata
885. Mootness 886
AMJUR LANDLORD 840 to 888 IV. Rights, Duties, and Liabilities of Parties
C. Particular Rights of Landlord 6. Landlord's Possessory Remedies b. Summary
Possessory Actions
IV. Rights, Duties, and Liabilities of Parties C. Particular Rights of Landlord 6.
Landlord's Possessory Remedies b. Summary Possessory Actions (6) Appeal Topic
Summary Correlation Table References 888. Bond; continuing payment of rent
West's Key Number Digest West's Key Number Digest, Landlord and Tenant
k291(18), 315(1), 315(4) Where a tenant has vacated the premises, it is not required
to post bond in order to appeal a writ of restitution of the premises in an unlawfuldetainer action.[FN1] A bond is required only if the tenant, after receipt of a writ of
restitution of the premises, wishes to continue to occupy the premises.[FN2] Other
authority holds that a supersedeas bond is not required to perfect an appeal in a
forcible-detainer action, though a judgment in a forcible-detainer action may not be
stayed pending appeal unless a supersedeas bond is filed.[FN3] A statutory
requirement for an appeal bond in summary process actions may include the
requirement that periodic payments be made on account of a tenant's use and
occupancy pending an appeal.[FN4] Indeed, summary-eviction statutes commonly
provide that, whenever an action for the recovery of real property is pending on
appeal, the defendant must pay the plaintiff sums of money equal to the rent of the
premises.[FN5] By accepting the funds, the plaintiff does not waive the right to
obtain possession of the premises nor does receipt of the funds reinstate the
defendant as a tenant.[FN6] On the other hand, unless a statute provides otherwise,
a landlord who appeals a summary process judgment favorable to the tenant is not
entitled to a continuation, during the appeal, of the trial court's order for the tenant's
payments into court.[FN7] [FN1] Housing Authority of City of Pasco and Franklin
County v. Pleasant, 126 Wash. App. 382, 109 P.3d 422 (Div. 3 2005). [FN2]
Housing Authority of City of Pasco and Franklin County v. Pleasant, 126 Wash.
App. 382, 109 P.3d 422 (Div. 3 2005). [FN3] Marshall v. Housing Authority of
City of San Antonio, 49 Tex. Sup. Ct. J. 399, 2006 WL 508635 (Tex. 2006). [FN4]
Equity Residential Mgmt. Trust v. Calloway, 2001 Mass. App. Div. 86, 2001 WL
575496 (2001), order aff'd, 57 Mass. App. Ct. 1107, 782 N.E.2d 556 (2003). As to
the requirement that tenants continue to pay rent as a condition of remaining in
possession, irrespective of their defenses and counterclaims, see 866. [FN5]
Tovar v. Superior Court of Arizona In and For Maricopa County, 132 Ariz. 549,
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647 P.2d 1147 (1982); Leisure, Inc. v. Burt Development Co., 712 P.2d 1122
(Colo. Ct. App. 1985); Baker v. G.T., Ltd., 194 Ga. App. 450, 391 S.E.2d 1 (1990);
Ward-Steinman v. Karst, 446 So. 2d 999 (La. Ct. App. 3d Cir. 1984); Arcade Co. v.
Kentco, Inc., 592 A.2d 135 (R.I. 1991); Walker v. Blue Water Garden Apartments,
776 S.W.2d 578 (Tex. 1989). [FN6] Arcade Co. v. Kentco, Inc., 592 A.2d 135 (R.I.
1991). [FN7] Wyngate, Inc. v. Bozak, Inc., 40 Conn. Supp. 53, 480 A.2d 616
(Super. Ct. 1984). d. AMJUR LANDLORD 888
http://www.leg.state.nv.us/session/76th2011/bills/ab/ab398_en.pdf
(RED FLAGGED) NV ST 40.385
Citing References
Secondary Sources (U.S.A.)
1 44 Causes of Action 2d 447, Cause of Action by Residential Landlord to Evict
Tenants or Other Occupants (2011)
2 108 Am. Jur. Proof of Facts 3d 449, Landlord's Right to Evict Tenants or Other
Occupants from Residential Property (2011)
3 Notice of Posting and Acceptance of Supersedeas/Cost Bond on Appeal (31),
2006 WL 4385591 (State eforms), *1 (2006)
4 Notice of Posting and Acceptance of Supersedeas/Cost Bond on Appeal (33),
2006 WL 4385548 (State eforms), *1 (2006)
Court Documents
Trial Court Documents (U.S.A.)
Trial Motions, Memoranda and Affidavits
5 Ziggy and Mara KOTUR, Plaintiff, v. DANIELLE DELEE IRREVOCABLE
TRUST; Nevada Title Company, Inc.; Cathryn Miles Delee; Mobility, Inc.; Does
I through V, inclusive; Roe Corporations I through X, inclusive; Does I through
X, inclusive, Defendants., 2007 WL 4749297, *4749297+ (Trial Motion,
Memorandum
and Affidavit) (Nev.Dist.Ct. Mar 26, 2007) Motion to Stay the Eviction
of the Danielle Delee Irrevocable Trust on Order Shortening Time (NO.
A537220)
6 ANVUI, LLC, a Nevada Limited Liability Company, Plaintiff, v. G.L.
DRAGON, LLC, a Nevada Limited Liability Company, Defendant., 2006 WL
6160377, *6160377+ (Trial Motion, Memorandum and Affidavit) (Nev.Dist.Ct.
Nov 29, 2006) Defendant G.L. Dragon's Opposition to Plaintiff's Ex Parte
Motion or an Order Staying Execution of Summary Eviction Pending Appeal
or, in the Alternative, and/or Countermotion for Bond Pursuant to ...
(NO. A529511)
LIBRARY REFERENCES
Forcible Entry and Detainer 45.
Landlord and Tenant 291(18), 392.
Westlaw Key Number Searches: 179k45; 233k291(18); 233k392.
C.J.S. Forcible Entry and Detainer 76, 93.
C.J.S. Landlord and Tenant 730, 758, 784.
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RESEARCH REFERENCES
Encyclopedias
108 Am. Jur. Proof of Facts 3d 449, Landlord's Right to Evict Tenants or Other
Occupants
from Residential Property.
Treatises and Practice Aids
44 Causes of Action 2d 447, Cause of Action by Residential Landlord to Evict
Tenants or
Other Occupants.

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NRCP
Coughlin's lease had not "terminated" or "expired" at the time of his filing a
Tenan'ts Answer on 10/6/11 in rjc rev11-1708, and where the RJC essentially pled
non-payment for Merliss, and exposed Coughlin to such, NRS 40.360 (where 5
days is "less than 11" and nRS 40.400 makes NRCP 6(a),(e) applicable), as at page
16 of the 90 page first filing in Anvui: "Due to the Thanksgiving Holiday, counsel
for Anvui did not have an opportunity to review and revise Dragon's proposed
Order and counsel for Anvni has just learned that the Court signed Dragon's version
of the proposed Order on November 22, 2006. Counsel for Dragon respectfully
submits that the Order is not in compliance with Nevada Law inasmuch as it cans
for execution of the eviction within 24 hours of service of smite. NRS 40.360 states
that "When the proceeding is for an unlawful detainer after the default in the
payment of rent, and the lease ir agreement under which the rent is payable has not
by its terms expired, execution upon the judgment shall not be issued until the
expiration of 5 days after the entry of the judgment..." (there is similar 10 day
automatic stay upon the entry of an Order preventing exectuion thereupon under
NRCP 62(a), and the 2004 Drafter's Note to NRCP 62(d) makes clear "Subdivision
(d) is amended to add the exceptions for injunctions and receiverships consistent
with the amendments to subdivision (a). The provision retains the Nevada rule that
a stay upon appeal is effective when the supersedeas bond is filed in lieu of the
federal provision that the stay is effective when the court approves the supersedeas
bond." further supporting the Venetian v. Two Roads view that NRS 40.385 stays
are not discretionary, but easily obtained upon plunking down the $250.)...."
Because the Order calls for execution within 24 hours rather than 5 days, an
emergency ex parte stay pending appeal is necessary. Anvui dba lienrah's Bistro
respectfully disagrees with the Court's November 22, 2006 Order and has filed a
Notice of Appeal of same. Anvui haa been operating as Hannah's Bistro at the
Lamed Premises for over a year now 'elder a commercial lease. Anvai has a
significant customer base and good reputation within the community. Anvui will
sustain significant damages to its business and reputation if it is required to vacate
the premises and shut down pending its appeal to the Nevada Supreme Court of the
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Court's November 22, 2006 Suramary Eviction Order. As a result, Alma requests
that this Court enter an emergeney cxp parte order staying execution of the
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MROA 23 (NRS 4.420 holds such entries in a justice court docket to be prima facie
evidence of facts) cotains an entry for 10/25/11 reading: "Hearing held. Landlord
has met his burden of proof. EVICTION GRANTED effective October 31, 2011 at
5:00 pm. Landlord may in 48 hours from today, inspect the property. Order to be
submitted to the court by noon on Thursday. Deny request for a Jury Trial, not
timely. Bail/rent posted of $2275.00 not to be disbursed at this time. Tenant has 10
days to appeal and posted rent will suffice as appeal bond. Court fmds that there is
no Defense of retaliation by the landlord. Tenant's Verbal Motion to Stay, Denied.
jJ"
RJC Docket entries at MROA 25 included:
"DEC 1 Opposition to and Reservation of Right to Oppose on the Merits All
Papers Filed or Submitted by Defendant on or about November 23, 201 1. jJ Order
filed by Judge Peter J Sferrazza. (The Order Awarding Attorney's Fees is
VACATED; This Court no longer has jurisdiction in this matter with respect to the
eviction, since this case was appealed to the Second Judicial District Court; it is
further ordered that any other motions that have been filed with the Court shall be
stayed until such time as the appeal is decided.)
DEC 5 Opposition to Motion to Show Cause; Motion to Vacata and or Set Aside
and or Stay Eviction OrderlMotion for Sanctions filed. Affidavit/Declaration in
Support of Motion to Contest Personal Properth Lien and for Return of Personal
Property filed. Motion to Contest Personal Property Lien and for Return of Personal
Property filed. DEC 8 Received a check made payable to 'Second Judicial District
Court' dated 1 118/11 for $216.00. (This is for District Court's appeal fee when
appeal goes over) ks ...
DEC 12 Received check #1422 from Zachary Coughlin payable to District Court
for appeal fee. jJ
DEC 14 Receipt to Zachary Coughlin from Reno Justice Court for $250.00 for
appeal bond and a receipt for $1.00 for 'supersedeas bond'."
Further MROA contains the following entry" DEC 12 Emergency Motion for TRO;
Injunction Request for Submission of tbis Motion Attempting to Pay Appeal Bond
of $250.00 and Supersedeas Whatever it Is filed. Jj"
Oddly, MROA 25-26 contains those last two docket entries in such an
incongruent arrangment given the chronology attributed thereto.
DEC 15 ...Emergency Ex Parte Motion: Amended Case Appeal Statement.
Statement of Record on Appeal Motion to Set Aside Eviction Order, Emergency Ex
Parte Motion for Order Shortening Deadline; Amended Case Appeal Statement,
Statement of Record on Appeal, Motion to Set Aside Eviction Order, Emergency
Ex Parte Motion for Order Shortening Time; DESIGNATION OF RECORD AND
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STATEMENT OF POINTS ON APPEAL; AND NOTICE OF INTENT TO FILE

BRIEF; Statement of Proceedings; CERTIFICATE OF NO TRANSCRIPT;
NOTICE OF POSTING AND ACCEPTANCE OF SUPERSEDEAS/COST BOND
ON APPEAL filed...."
A receipt for that $250.00 NRS 40.385 supersedeas bond Coughlin posted
with the RJC (despite the RJC continually informing Coughlin that an "appeal
bond" was different from a "supersedeas bond" and that the "appeal bond" in 1708
would be the standard $250, which conflicts sharply with the statement of the law
on the Clark County site linked to above and quoted in Coughlin's 11/24/11 and
12/5/11 and 12/12/11 emails to various individuals with the 2JDC, RJC, and
responden'ts attorney's office.
The receipts found at MROA 1687-1688 establish that which Hill contends
is not supported by evidence in his 4/26/13 Motion to Dismiss. Now, Coughlin
absolutely knows he despoited another $250 with the RJC on 12/22/11, and its not
clear if Hill or the RJC is disputing that, but if they are, this should be good.
MROA 903 is the 10/25/11 Eviction Decision and ORder and reads:
"Hearing Held. DECISION: Landlord has met his burden ofproo EVICTION
GRANTED effective October 3 1 , 20 1 1 at 5:00 pm. Landlord may in 48 hours
from today, inspect the property. Order to be submitted to the court by noon on
Thursday. Deny request for a Jury Trial, not timely. Bail/rent posted of$2275.00
not to be disbursed at this time. Tenant has I 0 days to appeal and posted rent will
suffice as appeal bond. Court tinds that there is no Defense of retaliation by the
landlord. Tenant's Verbal Motion to Stay, Denied"
Now, conveniently, in his 1/5/12 Opposition to Coughlin's 12/30/11 Motion
for STay pursuant to NRS 40.385, responden'ts attorney attaches a fairly dated, by
that point, RJC docket, from 12/19/11, as his Exhibit 10...
Coughlin included an RJC docket in the older style before the RJC
converted to a more digital format, that went through 2/15/12 in his MROA at
MROA 4 to 9, and MROA
, and some curious things appear at MROA 8 (despite the fact that Coughlin's
filings listed therein of 12/21/11 and 12/22/11 do not appear in the 1/4/12
Supplemental the RJC filed in 03628...and still don't appear in the 4/1/13
Supplemental the RJC filed in 03628 to correct the failure to actually transmit the
documents listed in the "Appeal Receipt" and attested to in the Certificate of Clerk
in that 1/4/12 Supplementa filed by the RJC in 03628. What's more curious is the
fact that those very documents are awfully important when considering footnote 5
to Judge Flanagan's 3/30/12 Order denying Coughlin's appeal, the denial of a stay
to Coughlin overall, by both the RJC and the 2JDC, and Hill's current arguments
vis a vis NRAP 7 (and the noticeable lack of any indicia in the docket for the
12/20/11 hearing as to any "consent" to the Court entering any sort of Consent
Order, and the curiously titled 12/21/11 "Order Resolving Motion to Contest
Personal Property Lien" and then the ultra curious failure of the RJC, still, to
transmit the 12/21/11 filing by Coughlin, which is listed in the docket, at least, as
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"Tenant's NOtice that NO AGreement or Settlement was made or entered into by

Tenant, and that December 21,2011 ORder of Court was an Order:
VOLUME V
"DEC 20 Both parties appeared in front of Judge Sferrazza for a Motion to Contest
Personal Property Lein Hearing. Decision (l)Eviction was not premature and
Defendant was given opportunity To have a hearing or this Motion within 10 days.
(2) Order Dictated (3) Exhibits 1 to 7 Admitted. Bc
DEC 21 Order Resolving Motion To Contest Personal Property Lien filed.
DEC 21 District Court Civil Appeal processed. New Case Number is CV 11-03628
Dept. 7. DEC 22 Letter to all party's advising them of Appeal and the case number.
Notice of Posting and Acceptance of Supersedeas/Cost Bond on Appeal filed.
Tenants Notice that No Agreement or Settlement was made or entered into by
Tenant, and that December 21, 20 II Order of Court was an Order filed. Notice of
Posting supersedeas bond as set by statue where is my stay/request for submission
of All of tenant's outstanding motions filed. ce
DEC 27 Motion for Return of Bond filed. ce Emergency????filed. ce Fax from Mr.
Coughlin to the Court submitted. Above com:spondt:m::e reviewed - no action
necessary. Be ...""MROA 8.
Coughlin hereby authenticates that the RJC docket for Rev11-1708 found
between his MROA 4 to 9 is a true and correct copy of the docket provided to him
directly by the RJC's filing office, and so declares under penalty of perjury pursuant
to NRS 53.045.
MRIA 9 continues with some interesting things, too:
"JAN 12 FEB 2 FEB 15 FEB 17
FEB 2 Notice of Appeal received. (Appealing Order of 12121111) Motion to Alter
or Amend Judgment JCRCP 59; or in the Alternative, Motion to Set Aside or
Vacate 12121/11 Order Resolving Motion on Personal Property Lien (JCRCP60)
filed. ks
FEB 15 Request for Submission for Return ofS250.00 Supersedeas Bond filed.
SUBMITTED. ks
FEB 17 Order Denying Motion for Return of $250.00 Supersedeas Bond filed. ks
"PURSUANT TO JUDGE SFERRAZZA's DECEMBER 1, 2011 ORDER,
THE CLERKS CANNOT TAKE ANY MORE PLEADINGS ON THIS CASE
UNTIL THE APPEAL IS REMANDED FROM DISTRICT COURT - PER
JUDGE SFERRAZZA 2/17/12"
FEB 27 RECEIVED ONLY--- Faxed Jury Demand along with a Motion Informa
Pauperis. Be Mailed check for SI.OO (RJC Check # 33148 for a refund) ks"
Regardless of the fact that Hill's Schute citation absolutely does not support
dismissing the appeal absent further notice or order to Coughlin providing him
some opportunity to submit yet another $500 security (on top of the $500 the RJC
is still holding onto) under NRAP 7 (and Hill's contention that two separate filign
fees and or security bonds were required for what is not one appeal in 61383 (Hill's
getting the 61383 dismissed on 11/9/12, in such curious proximity to his appearing
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at Coughlin's 11/14/12 formal disciplinary hearing to spew his typical lies and
attempts to mislead the finder of fact, ironically, now works against him, as, given
such (and Hill is flat wrong in his assertion that the docket in 03628 doesn't contain
an entry indicating the filing fee paid as to the 7/30/12 Notice of Appeal, it does,
though is should indicate such was further paid as to the 7/18/12 Notice of Appeal
the RJC was erroneously delivered and filestamped despite coughlin's quite clear
instructions via kite to WAshoe County jail staff when he submitted such for filing
on 7/7/12), and Coughlin's subsequnet 7/24/12 Notice of Appeal in 03628 as well
(which, Hill acknowledge having been served in his 7/31/12 Opposition thereto),
and which Coughlin delivered to Hill's office that day anyways, on top of that fact
that is far to late for Hill to be arguing otherwise, especially where HIll is an efiler,
received at least a "courtesy notification" from the eflex system, and for the 2JDC's
eflex system to maintain that such a courtesy notification compared to its
customary "notice of electronic filing" email to efilers like Hill is an acceptable
distinction, especially given the sudden disappearance of the WDCR 10 mandated
"after hours drop box" the same week the efiling fees tripled, is just not
supportable.
As to NRAP 7, the RJC has two different $250 supersedeas bonds Coughlin
deposited, one on 12/13/11 and the other on 12/22/11 (in addition to the desposit of
$2,275 on 10/17/11, which more than coverd the $250.00 for the NRS 40.385
supersedeas bond "perfected" the Notice of Appeal submitted to the RJC on
10/18/11 (After 2JDC Supervisor Michelle Purdy refused to file it in the 2JDC),
which the RJC waited to file stamp until 10/19/11)

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http://www.clarkcountycourts.us/lvjc/evictions-tenant.html
"
(2) The Tenant may file an immediate Appeal

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(A) Summary Eviction Cases

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The Tenant may obtain an immediate stay by filing an Appeal and a $250.00 bond
with the Court. The Court cannot waive the bond.
The filing fee for an Appeal is $71. If the Tenant cannot afford the Appeal filing
fees, the Tenant must also prepare a Fee Waiver Application before arriving at the
Clerks Office. The Clerks Office will receive the documents that the Tenant wants
to file and if the Fee Waiver is granted by a Judge, the documents will be filed. If
the Fee Waiver is denied, the Clerks Office will call the Tenant to advise the
Tenant has 2 business days to pay the fee or their document will not be filed.

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Note: Once a Fee Waiver Application has been denied on a case by the Judge, the
Tenant cannot submit another Fee Waiver Application. The Tenant must pay the
fees at the time of filing the documents.

3
4
5
6

In an action concerning: (a) A lease of commercial property; or (b) Any other

property for which the monthly rent exceeds $1,000, the court may, upon its own
motion or that of a party, and upon a showing of good cause, order an additional
bond to be posted to cover the expected costs on Appeal.

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8
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A Tenant who retains possession of the premises that are the subject of the Appeal
during the time the Appeal is pending must pay to the Landlord rent in the amount
provided in the underlying contract or lease between the Tenant and the Landlord
as it becomes due. If the Tenant fails to pay the rent, the Landlord may file a new
Summary Eviction proceeding by serving the Tenant with a new notice pursuant to
NRS 40.253.

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(B) Formal Civil Evictions

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Pursuant to NRS 40.380, either party may, within 10 days, Appeal from the
judgment rendered. An Appeal by the Defendant will not stay (postpone) the
execution of the Judgment, unless within the 10 days the Defendant executes and
files a bond with two or more sureties, in an amount to be fixed by the court but
which shall not be less than twice the amount of the judgment and costs. This
amount is required because if the judgment is affirmed on Appeal, or if the Appeal
is dismissed, the party Appealing must pay the judgment and the cost of Appeal,
the value of the use and occupation of the property, and the monetary damages of
the Landlord during the time the Appeal is pending. When the Appeal is filed and
the bond in the amount determined by the Court is filed, all further proceedings in
the case shall be stayed."
http://www.nevadajudiciary.us/index.php/viewdocumentsandforms/func-startdown/
5158/
the "Landlord/Tenant Handbook" held out to the publicon this Court's web
site under an "Access to Justice Commission" (not clear at this time if their is a
disclaimer of some sort on the site as to the veracity of the information contained
therein or the utlity of the available standardized forms). At page 24 of 32 is the
following:
"Tenants must also post a bond, but the amount of the bond will depend on whether
they are appealing a summary or formal order for eviction, and whether or not they
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wish to stop the eviction pending the appeal. Tenants are responsible for
continuing to pay rent pending the outcome of the appeal and can be subject to
another eviction action for failing to do so. See NRS 40.385(2)
Appeals from Orders for Summary Eviction
All tenants filing an appeal must post a bond of at least $250. If you wish to
stop the eviction pending your appeal and are a tenant of a residential
property whose monthly rent is $1000 or less, this $250 is all you are required
to pay.
If you are a tenant of residential property whose monthly rent exceeds $1000,
or a tenant of a commercial property you must post bond of $250 but the court
can, on its own or on the motion of the landlord, increase the bond. See NRS
40.385(1)
Appeals from Temporary Writs of Restitution

12

16

If your landlord was awarded a temporary writ of restitution (an eviction that was
ordered following a show cause hearing as opposed to a trial), you may not file an
appeal. See Justice Court Rules of Civil Procedure 72A. However, you may have
other remedies available that are outside of the scope of this section. Tenants
wishing to challenge a temporary writ of restitution are encouraged to seek legal
advice (Find a Lawyer).

17

Appeals from Judgments of Eviction

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A tenant appealing from a judgment of eviction (an eviction that was ordered
following a trial, as opposed to an order to show cause hearing) must post a bond of
at least $250. If that tenant wishes to stop an eviction pending the appeal, the
tenant is required to post a bond of at least twice the amount of the judgment and
costs. See NRS 40.380. "
http://www.scribd.com/doc/136382055/4-15-13-0204-62337-Notice-MotionFixed-Fonts

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XII. Reentry and Recovery of Possession by Landlord C. Statutory Dispossession

Proceedings; Summary Proceedings 1. In General 1535. Jurisdiction , Landlord
and Tenant 291(6.5), 302 Jurisdiction in summary proceedings for the recovery of
premises from a tenant is exclusively statutory. Jurisdiction in summary
proceedings for the recovery of premises from a tenant is exclusively statutory.[1]
As a general rule, a court sits in summary dispossession proceedings as a special
statutory tribunal to decide summarily issues authorized by statute.[2] It ordinarily
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does not sit as a court of general jurisdiction with power to hear and determine
other issues.[3] However, a court with jurisdiction over forcible entry and detainer
actions may have power to order all equitable remedies that a court of general
jurisdiction could use in resolving the same cause of action.[4] The action or
proceeding must be within the territorial jurisdiction of the court in which it is
brought.[5] Moreover, a judgment for rent or damages must not exceed the amount
by which the jurisdiction of the court is limited by constitution or statute.[6] If all
matters between a landlord and tenant cannot be adjudicated in the court in which
forcible entry and detainer proceedings are pending due to that court's limited
subject-matter jurisdiction, then either the landlord or tenant normally may
maintain an action in a court of competent jurisdiction for proper relief. [7] The
methods prescribed by statute for obtaining and exercising jurisdiction ordinarily
must be strictly pursued. [8] In a landlord tenant dispossess proceeding, while the
failure of the landlord to allege or prove the tenant's default, is sufficient ground to
warrant dismissal for lack of jurisdiction.[9] Subject-matter jurisdiction may be
dependent on the service of a proper notice to quit, which is a condition precedent
to a summary process.[10] Jurisdiction ordinarily is not ousted by matters occurring
after the action is brought,[11] and the tenant's removal from premises while a
summary proceeding is pending will not deprive the court of jurisdiction to render
an order awarding landlord possession.[12] Thus, a court errs in dismissing a
summary proceeding for nonpayment of rent and for judgment for rent arrears on
the ground that the court lacks jurisdiction because the tenant had vacated the
premises prior to trial.[13] [FN1] N.J.Housing Authority of Town of Morristown
v. Little, 135 N.J. 274, 639 A.2d 286 (1994). N.Y.Radlog Realty Corp. v. Geiger,
254 A.D. 352, 5 N.Y.S.2d 82 (1st Dep't 1938). N.C.Ford v. Ford Moulding Co.,
231 N.C. 105, 56 S.E.2d 14 (1949). As to requirement to sufficiently allege a cause
of action in pleadings, see 1553. [FN2] Wash.MacRae v. Way, 64 Wash. 2d
544, 392 P.2d 827 (1964). [FN3] Wash.Young v. Riley, 59 Wash. 2d 50, 365
P.2d 769 (1961). Limited jurisdiction Wash.MacCormack v. Robins Const., 11
Wash. App. 80, 521 P.2d 761 (Div. 1 1974). Effect of subsequent counterclaim Or.
Wilson v. Matthews, 291 Or. 33, 628 P.2d 393 (1981). [FN4] AlaskaShaw v.
Nanook, Inc., 64 P.3d 131 (Alaska 2003). [FN5] Mo.Kreisman v. Kornfeld, 208
S.W.2d 79 (Mo. Ct. App. 1948). N.J.Roy v. Hunter, 134 N.J.L. 357, 48 A.2d 220
(N.J. Sup. Ct. 1946). Improper venue not jurisdictional N.Y.Brocon Realty Co. v.
Massapequa Pizza, Inc., 42 Misc. 2d 742, 248 N.Y.S.2d 843 (Dist. Ct. 1964). [FN6]
Tex.Haginas v. Malbis Memorial Foundation, 349 S.W.2d 957 (Tex. Civ. App.
Houston 1961), writ granted, (Jan. 10, 1962) and judgment aff'd, 163 Tex. 274, 354
S.W.2d 368 (1962). Wyo.Hurst v. Davis, 386 P.2d 943 (Wyo. 1963). [FN7] Tex.
McGlothlin v. Kliebert, 672 S.W.2d 231 (Tex. 1984). [FN8] Ala.Bice v.
Hendrix, 274 Ala. 281, 148 So. 2d 224 (1962). N.Y.Village of Woodridge v.
Proyect, 18 Misc. 2d 623, 189 N.Y.S.2d 258 (County Ct. 1959). [FN9] N.J.
Marini v. Ireland, 56 N.J. 130, 265 A.2d 526, 40 A.L.R.3d 1356 (1970). Court not
deprived of subject-matter jurisdiction A deficiency in the prayer of a landlord's
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petition does not necessarily deprive the trial court of subject-matter jurisdiction in
a forcible detainer action. Tex.Powell v. Mel Powers Inv. Builder, 590 S.W.2d
837 (Tex. Civ. App. Houston 14th Dist. 1979). [FN10] Conn.City of Bristol v.
Ocean State Job Lot Stores of Connecticut, Inc., 284 Conn. 1, 931 A.2d 837 (2007).
[FN11] N.Y.Brause v. 2968 Third Ave., Inc., 43 Misc. 2d 691, 251 N.Y.S.2d 974
(App. Term 1964). [FN12] N.Y.Schor v. Domery, 34 Misc. 2d 865, 232
N.Y.S.2d 205 (J. Ct. 1962). [FN13] N.Y.Liza Realty Corp. v. M. Machlus
Leather Goods, 43 Misc. 2d 57, 250 N.Y.S.2d 379 (App. Term 1964). CJS
LANDLORD 1535 Corpus Juris Secundum Database updated March 2013
Landlord and Tenant XII. Reentry and Recovery of Possession by Landlord C.
Statutory Dispossession Proceedings; Summary Proceedings 1. In General 1536.
Stay of proceedings , Landlord and Tenant 290.5, 299 A summary proceeding to
dispossess a tenant may be stayed where orderly procedure demands such action. A
court may grant a stay in summary proceedings to dispossess a tenant where orderly
procedure demands such action, such as where it is necessary to determine the
outcome of the tenant's action for specific performance of an alleged option to
renew the lease.[1] However, a stay may issue only from a court which has
jurisdiction in the matter and may be granted only for a reasonable length of time.
[2] The landlord may have the right to apply to vacate or lessen the stay.[3] Under a
particular statute, a defendant may arrest the proceedings and retain possession by
filing a counteraffidavit and a bond for payment of such sum, together with the
costs, as may be recovered against him or her on the trial of the case.[4] [FN1]
Mont.Stanisich v. State Highway Commission, 141 Mont. 144, 375 P.2d 1019
(1962). Stay pending disposition of administrative proceeding regarding rental
increase D.C.Akassy v. William Penn Apartments Ltd. Partnership, 891 A.2d
291 (D.C. 2006). Stay not justified by jurisdictional priority rule OhioState ex
rel. Weiss v. Hoover, 84 Ohio St. 3d 530, 1999-Ohio-422, 705 N.E.2d 1227 (1999).
Stay conditioned on payment of rent N.Y.Cahill v. Mirando, 141 N.Y.S.2d 567
(Sup 1955). Injunctive relief not warranted Conn.Nicoli v. Frouge Corp., 171
Conn. 245, 368 A.2d 74 (1976). N.Y.Childress v. Lipkis, 72 A.D.2d 724, 443
N.Y.S.2d 63 (1st Dep't 1979). [FN2] N.Y.MacLeod v. Shapiro, 20 A.D.2d 424,
247 N.Y.S.2d 423 (1st Dep't 1964). As to stays pending appeal, see 1573. [FN3]
N.Y.Prandi v. Goldman, 117 N.Y.S.2d 505 (Mun. Ct. 1952). [FN4] Ga.Ward
v. Walker, 222 Ga. 451, 151 S.E.2d 228 (1966). CJS LANDLORD 1536
XII. Reentry and Recovery of Possession by Landlord C. Statutory Dispossession
Proceedings; Summary Proceedings 7. Appellate Review 1573. Stay pending
appeal , Landlord and Tenant 290.5, 291(18), 299, 315(1) The enforcement of a
judgment in summary proceedings may be included in the automatic stay
provisions of a statute, where the property is still in the possession of the tenant.
The enforcement of a judgment in summary proceedings may be included in the
automatic stay provisions of a statute, where the property is still in the possession
of the tenant.[1] However, an appeal ordinarily does not stay or suspend the
execution of the judgment[2] unless there is compliance with statutory conditions,
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such as furnishing a bond.[3] A statute may properly require a tenant to post an

adequate bond before an appeal will be granted to cover the judgment appealed
from in an unlawful entry and detainer action, as well as rent that will accrue during
the pendency of the appeal.[4] A failure to file a bond will warrant the dismissal of
a motion to stay the proceedings[5] but does not divest the tenant of the right to
appeal.[6] Under a particular statute, the filing of an affidavit of substantial
hardship may automatically stay the execution of a judgment for possession, as a
matter of law, pending an appeal of the unlawful detainer action.[7] [FN1] N.Y.
Oleck v. Pearlman, 49 Misc. 2d 202, 267 N.Y.S.2d 76 (Sup 1966). [FN2] Pa.
White v. Long, 289 Pa. 525, 137 A. 673 (1927). Tenn.Bell v. Smith, 185 Tenn.
11, 202 S.W.2d 654 (1947). [FN3] N.Y.Pisano v. Nassau County, 41 Misc. 2d
844, 246 N.Y.S.2d 733 (Sup 1963), order aff'd, 21 A.D.2d 754, 252 N.Y.S.2d 22
(2d Dep't 1964). Purpose of bond requirement Conn.Young v. Young, 249 Conn.
482, 733 A.2d 835 (1999). Requirement of adequate security permissible U.S.
Lindsey v. Normet, 405 U.S. 56, 92 S. Ct. 862, 31 L. Ed. 2d 36 (1972). Process for
challenging appeal bond Mass.Erickson v. Somers, 446 Mass. 1015, 846 N.E.2d
1125 (2006). [FN4] W.Va.State ex rel. Reece v. Gies, 156 W. Va. 729, 198
S.E.2d 211 (1973). Bond covering damages, costs, and rent required Ariz.Tovar
v. Superior Court of Arizona In and For Maricopa County, 132 Ariz. 549, 647 P.2d
1147 (1982). Supersedeas bond proper Mont.Rasmussen v. Lee, 276 Mont. 84,
916 P.2d 98 (1996). [FN5] Ark.Harris v. Boyd G. Montgomery Testamentary
Trust, 370 Ark. 518, 262 S.W.3d 145 (2007). [FN6] Tex.Marshall v. Housing
Authority of City of San Antonio, 198 S.W.3d 782 (Tex. 2006). [FN7] Ala.Ex
parte Forbus, 510 So. 2d 242 (Ala. 1987). Affidavit sufficient Tex.Walker v.
Blue Water Garden Apartments, 776 S.W.2d 578 (Tex. 1989). CJS LANDLORD
1573 Corpus Juris Secundum Database updated March 2013 Landlord and Tenant
XII. Reentry and Recovery of Possession by Landlord C. Statutory Dispossession
Proceedings; Summary Proceedings 7. Appellate Review 1574. Notice of appeal;
time to appeal , Landlord and Tenant 291(18), 315(1) to 315(4) In order to avail
himself or herself of a statutory right of review in a statutory dispossession
proceeding, a party must comply with all of the conditions prescribed by statute. In
order for a party to take an appeal, he or she must comply with all the conditions
imposed by statute,[1] such as filing a notice of appeal,[2] in a timely manner.[3]
Appeals in summary proceedings are usually governed by statutes specifically
relating thereto rather than by statutes relating to appeals generally.[4] [FN1] Colo.
West v. Judd, 103 Colo. 432, 86 P.2d 1081 (1939). [FN2] Ga.Realty
Management, Inc. v. Keith, 114 Ga. App. 317, 151 S.E.2d 189 (1966). Tex.
Simmons v. Brannum, 182 S.W.2d 1020 (Tex. Civ. App. Austin 1944). [FN3] Nev.
Gibby's Inc. v. Aylett, 96 Nev. 678, 615 P.2d 949 (1980). N.H.Ladd v.
Coleman, 128 N.H. 543, 517 A.2d 811 (1986). Effect of failure to file timely appeal
Conn.HUD/Barbour-Waverly v. Wilson, 235 Conn. 650, 668 A.2d 1309 (1995).
Dismissal of untimely appeal for lack of jurisdiction Nev.Aikins v. Andrews, 91
Nev. 746, 542 P.2d 734 (1975). [FN4] Cal.Cambridge v. Webb, 109 Cal. App.
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2d Supp. 936, 244 P.2d 505 (App. Dep't Super. Ct. 1952). Fla.Wiesen v.
Schatzberg, 157 Fla. 375, 26 So. 2d 62 (1946). Lack of jurisdiction to issue writ of
certiorari Del.Capano Investments v. Levenberg, 564 A.2d 1130 (Del. 1989). As
to trial, judgment, and review of actions in ejectment, generally, see C.J.S.,
Ejectment 186 to 225. As to the right of review, generally, see C.J.S., Appeal
and Error 237 to 291. CJS LANDLORD 1574 Corpus Juris Secundum
Database updated March 2013 Landlord and Tenant XII. Reentry and Recovery of
Possession by Landlord C. Statutory Dispossession Proceedings; Summary
Proceedings 7. Appellate Review 1575. Grounds for review; preservation of
issues , Landlord and Tenant 291(18), 315(1) Questions may not be raised for the
first time in an appellate court reviewing the judgment in a statutory dispossession
proceeding. An appellate court reviewing the judgment in a statutory dispossession
proceeding will not consider questions that are attempted to be raised for the first
time on appeal.[1] Thus, the appellate court will not consider questions that were
not raised and presented in the trial court in some appropriate and adequate manner.
[2] Moreover, a failure to brief an issue on appeal ordinarily will result in a waiver
of that issue.[3] A question directed to the jurisdiction of the trial court over the
subject matter may be raised for the first time on appeal.[4] Where the lack of
jurisdiction of a superior court trying the case de novo appears on the face of the
record, the defendant's exception to the judgment for the plaintiff challenges the
correctness of the judgment.[5] Record. Questions of fact may not be properly
before the reviewing court in the absence from the record of a transcript of
testimony.[6] The actual record in the trial court must prevail over a statement in
the writ of error, and a paper may not be considered by the reviewing court where it
is not recited in, or made part of, the pleadings and is not a part of the trial court's
record.[7] Moot questions. The reviewing court will not consider the merits of the
appeal where only a moot question is involved.[8] Questions as to termination of a
lease and the propriety of a judgment for possession may be rendered moot by a
surrender of possession.[9] [FN1] D.C.Killingham v. Wilshire Investments
Corp., 739 A.2d 804 (D.C. 1999). Ill.Sinkovits v. Pearah, 51 Ill. App. 2d 131,
201 N.E.2d 183 (2d Dist. 1964). As to the right of review, generally, see C.J.S.,
Appeal and Error 237 to 291. [FN2] Cal.Garfinkle v. Montgomery, 113 Cal.
App. 2d 149, 248 P.2d 52 (3d Dist. 1952). IowaVerlinden v. Godberson, 238
Iowa 161, 25 N.W.2d 347 (1946). N.H.Liam Hooksett, LLC v. Boynton, 157
N.H. 625, 956 A.2d 304 (2008). Equitable doctrine against forfeitures sufficiently
raised Conn.Fellows v. Martin, 217 Conn. 57, 584 A.2d 458 (1991). [FN3] N.D.
Anderson v. Heinze, 2002 ND 60, 643 N.W.2d 24 (N.D. 2002). Failure to timely
brief after extensions Ark.Harris v. Boyd G. Montgomery Testamentary Trust,
370 Ark. 518, 262 S.W.3d 145 (2007). [FN4] Ill.William Knapp & Co. v. Johns,
335 Ill. App. 226, 81 N.E.2d 264 (1st Dist. 1948). [FN5] N.C.Howell v. Branson,
226 N.C. 264, 37 S.E.2d 687 (1946). [FN6] N.Y.Yearwood v. Speidell, 123
N.Y.S.2d 785 (County Ct. 1953). [FN7] Conn.Vogel v. Bacus, 133 Conn. 95, 48
A.2d 237, 169 A.L.R. 910 (1946). [FN8] Kan.Mueller v. Seiler, 158 Kan. 440,
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148 P.2d 266 (1944). [FN9] Colo.Allmer v. Andrews, 153 Colo. 487, 386 P.2d
705 (1963). Haw.Java Hawaii Investments, Inc. v. Lee, 2003 WL 21540644
(Haw. 2003). Me.Foster v. Bloomberg, 657 A.2d 327 (Me. 1995). Effect of
involuntary vacation D.C.Walker v. Smith, 499 A.2d 446 (D.C. 1985). CJS
LANDLORD 1575
Couglin filed a Complaint for illegal lockout with the RJC on 11/2/11, but
was not granted a hearing therein, despite AB 398's enactment requiring such, in
addition to NRS 118A.390:
"Section 14: Landlord Can Change Locks Without a Court Order for Eviction!
AB 398 now allows a landlord or its agent to change the locks on a commercial
property, if tenant is delinquent in rent payment. No court order is necessary. The
only requirement for the landlord to change the locks is to post a notice on the
property for a minimum of 5 days, informing the tenant where the new keys may be
obtained. The landlord is also allowed to demand all past-due rent prior to releasing
the new keys to tenants.
If the tenant believes he was unlawfully removed by the landlord, he may file in
justice court a verified complaint for reentry. A hearing will be scheduled and
tenant is required to testify under oath to the court the facts of the alleged unlawful
lockout. If the court reasonably believes that lockout has occurred unlawfully, the
tenant will be required to post a bond in an amount equal to 1 month of rent and the
court may issue a temporary writ of restitution.
If the landlord is found to have violated section 14, tenant may recover possession
of commercial premises, recover actual damages, recover one months rent or $500
whichever is greater, and attorneys fees and costs, less any delinquent rents.
On the other hand, if tenant is found to have testified in bad faith, landlord may
collect the same damages, less any sums for which landlord is liable to the tenant."
Its important to remem be that repondent, in 1708, did not alleged non-payment of
rent, which makes the lockout even more impermissible.
Coughlin's 12/11/11 email to the RJC's Chief Civil Division Clerk Stancil
seemed to change the RJC's previous insistence that it would not accept the $250
supersedeas bond Coughlin sought to deposit on a number of occasions with the
RJC (see MROA 1625=1626, 11/24/11 email to the RJC and Respondent's
attorney, etc.). that 12/11/11 email reads:
"RE: appeal brief date request pursuant to N. S. Ct. instrucxtion

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From:Zach Coughlin (zachcoughlin@hotmail.com)

Sent:
Mon 12/12/11 10:36 AM
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To:
kstancil@washoecounty.us

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Dear Chief Civil Clerk Stancil,

Thank you for your response. This commemerates our telephone conversation of
December 5th, 2011 wherein you informed me again that the RJC would not be
requiring or accepting any appeal bond or supersedeas bond. You specifically
stated that the RJC had decided to "waive" any requirments that I post such bond.
It does not seem all that clear that I do have any requirement to post such a bond,
upon reviewing the statute, but your statement on the phone on December 5th, 2011
made it clear that the RJC would not even accept any such posting from me. We
spoke about this in conjunction with my mentioning that I had on several
previous occasions attempted to pay to various RJC civil filing office clerks the
appeal and or supersedeas bonds for rev2011-001708, but was roundly refused each
time, often with a RJC Bailiff make some threat centered around my "ass" as he
was bullrushing me out of the filing office, despite my approachign the counter and
seeking to submit papers for filing prior to 5:00pm on two separate days between
November 21-23, 2011, in addition to my previous attempts. Further, I believe the
RJC should not have refused to accept my supersedeas bond on appeal of $250 (or
some other amount, depending on if I or my law practice or mattress business
(Zachary Coughlin's Memory Foam Mattresses and Pillows, business license on file
with NV Dept of Taxation) are deemed in a commercial lease (which, given the No
Cause Notice of Eviction served in rev2011-001708, and the dictates of NRS
40.253, would make the RJC's Summary Eviction Order void for lack of
jurisdiction, as summary evictions are only allowable against commercial tenants
where failure to pay rent is alleged and pled BY THE LANDLORD, not by some
ultra creative sua sponte "opening the door" theory of bringing a non payment of
rent argument into the equation merely because the tenant alleges retaliation where
several 14 day notices to cure habitability issues went unresponded to, and or where
the tenants right to fix and deduct came into play, or where habitability complaints
were met with agreements in writing from the landlord to rent deductions (which,
apparently, were subsequently dishonored).
Now, Judge Sferrazza's December 1st, 2011 Order (which comes shortly after
Richard G. Hill, Esq.'s pronouncement that the law needs to stop because he is
going on vacation from Thanksgiving to New Years) is apparently taking the
position that, because an Appeal has been filed, Judge Sferrazza (and I guess the
entire RJC) will not address any more motions, and that I am precluded from
getting the Hearing that NRS 40.253(7)-(8) grant a right to:

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NRS 118A.520 When lien or security interest in tenants household goods may be
enforced; distraint for rent abolished; damages.
1. Any lien or security interest in the tenants household goods created in favor
of the landlord to ensure the payment of rent is unenforceable unless created by
attachment or garnishment.
2. Distraint for rent is abolished.
3. A landlord who retains the household goods or other personal property of a
tenant in violation of this section is liable to the tenant for damages as provided
in NRS 118A.390.
(Added to NRS by 1977, 1344; A 1985, 1418)
I hereby move the court to sanction Merliss and HIll for withholding from me the
materials for which they have not lien at all. Further, Hill has filed documents into
the court with what he believes to be my social security number, and Hill withheld
my only state issued identification from me for over 7 days from despite my
numerous written and oral requests for it from November 15, 2011 to November
22, 2011. When Hill finally did give me my driver's license, he produced a white
garbage bag full of trash, telling me they were my "client files". Hill repeatedly, in
written correspondence and in his NOvember 21, 2011 filign with the RJC claims
that he would or will give me my client files without any preconditions, yet he has
continually failed to, to, I believe, much damage to my clients cases and my
businesses. Mr. Hill continues to refuse to provide any access whatsoever to my
client files, and further, is holding property of mine that was not at the 121 River
Rock St. address at the time of the early, illegal, not properly noticed or "receipt"
showing, "lockout". Additionally, he asserts an unlawful rent distraint, producing a
bill from a contractor for some $1060 for fixing a leak in the basement, somehow
trying to argue that that fits within the "reasonable costs for storage, moving, and
inventorying".

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I have previously attempted to pay a bond, and, further, Judge Sferrazza held on to
basically my last $2,275 on earth after seemingly reclassifying the impermissible
rent escrow deposit I was forced to make to litigate habitability issues under a NRS
40.253 summary eviction proceeding/"Trial"...That amount was held onto as a bond
of sorts, but Casey Baker got an order signed that also got that amount awarded to
his client, until I got that Order amended...I do know I have gone to the filing
offices and attempted to pay a filing fee or a bond, of at least $250 and was denied
the opportunity to do so, sometimes with commentary directed at "my ass" that may
or may not have included have inanimate objects shoved up it....I wish to avoid any
jursidictional dismissal of my appeal...It is unclear what bond or fee I am required
to pay and to whome. Judge Sferrazza did (at least orally in court) approve my IFP
with respect to the appeal in Justice Court (I am not sure whether the Order as
entered (and drafted by CAsey Baker reflects that, but...subsequent comments from
RJC staff support a finding that the rather small fee for an appeal in RJC was
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waived pursuant to an IFP being granted...Mr. Franden, I did file a Notice of

Appearance for the District Court case number for the appeal of the RJC Summary
Eviction ORder cv11-03051, however, that case is not appearing under my eflex
account, as such I do not believe I can make any payment of any fee or bond due..."
Las Vegas Justice Court's interpretation:
http://www.clarkcountycourts.us/CivilSHC/landlord-tenant-evictions/ordersummary-eviction.html#2
"To Do If You Received An Order for Summary Eviction
Whether or not you had your day in court, you may come home to find an order for
summary eviction posted on your door. If you have received such an order, other
than moving, your options include:
Filing a Motion to Stay and/or Vacate Summary Eviction;
Filing an Appeal; or
Negotiating an agreement with your landlord.
Filing a Motion to Stay and/or Vacate Order for Summary Eviction
A Motion to Stay and/or Vacate Order for Summary Eviction (link to form), allows
the tenant to ask the court to:
1.Grant the tenant up to 10 more days in which to move,
2.Set aside or vacate the order based on legal reasons why the order should never
have been issued in the first place; or
3.Stay the eviction order until a hearing can be held on the motion.
Motion to Stay
A tenant may file a motion to stay a summary eviction order at any time after an
eviction notice is served, however, most tenants do not request a stay until they
have received the eviction order. A motion to stay is simply a request for more time
in which to move.
The court may only stay an eviction order for up to 10 days. NRS 70.010(2)
In the Las Vegas Justice Court, only 1 motion to stay may be filed on any case.
JCRLV 11(l)
Motion to Vacate
A motion to vacate is a request to the court to set aside, or vacate, the order for
summary eviction because there are legal reasons why the order should not have
been entered. The tenant may request that the court stay the eviction order until it
holds a hearing on the motion to vacate.
Legal reasons for vacating an eviction order may include:
The tenant was not properly served with the eviction notice(s);
Excusable neglect on the tenants part;
Fraud, misrepresentation or other misconduct of an adverse party;
Mistake, inadvertence, surprise;
Newly discovered evidence;
The judgment is void. See JCRCP 60
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Filing an Appeal of an Eviction Order

Either party may appeal from an order for eviction by filing within 10 judicial days
from the date that the order or judgment is entered. In order to appeal a judgment of
eviction issued in the context of a formal eviction action, visit How to Appeal
From a Judgment or Order (link to pg. 114). To appeal from an order for summary
eviction, you must take the following steps:
1.File a Notice of Appeal (link to form);
2.File a Statement of Facts and Law in Support of the Appeal (link to form);
3.Pay the $71.00 filing fees; and
4.Post a bond with the court. Click here (link to appeal bonds below) for
information on the amount of the bond that you are required to post.
PLEASE NOTE, a tenant seeking to stop the eviction pending their appeal must file
the above documents prior to being removed from the rental unit.
Appeal Bonds
A bond must be posted with the court regardless of who is filing the appeal. Bonds
may be refunded to the party posting it if they win their appeal.
Landlords wishing to appeal from the denial of an eviction order must post a bond
of at least $250. See JCRCP 73.
Tenants must also post a bond but the amount of the bond will depend on whether
they are appealing a summary or formal order for eviction and whether or not
they wish to stop the eviction pending the appeal. Tenants are responsible for
continuing to pay rent pending the outcome of the appeal and can be subject to
another eviction action for failing to do so. See NRS 40.385(2)
Select the appropriate link for:
Appeals from Orders for Summary Eviction
Appeals from Temporary Writs of Restitution
Appeals from Judgments of Eviction
Appeals from Orders for Summary Eviction
All tenants filing an appeal must post a bond of at least $250. If you wish to stop
the eviction pending your appeal and are a tenant of a residential property whose
monthly rent is $1000 or less, this $250 is all you are required to pay.
If you are a tenant of residential property whose monthly rent exceeds $1000 or a
tenant of a commercial property you must post bond of $250 but the court can, on
its own or on the motion of the landlord, increase the bond. See NRS 40.385(1)
Appeals from Temporary Writs of Restitution
If your landlord was awarded a temporary writ of restitution (ie an eviction that was
ordered following an order to show cause hearing as opposed to a trial), you may
not file an appeal. See JCRCP 72A. However, you may have other remedies
available that are outside of the scope of this section. Tenants wishing to challenge
a temporary writ of restitution are encouraged to seek legal advice.
Appeals from Judgments of Eviction
A tenant appealing from a judgment of eviction (ie an eviction that was ordered
following a trial as opposed to an order to show cause hearing) must post a bond of
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at least $250. If that tenant wishes to stop an eviction pending the appeal, the tenant
is required to post a bond of at least twice the amount of the judgment and costs.
See NRS 40.380
Appeals from Orders for Summary Eviction
All tenants filing an appeal must post a bond of at least $250. If you wish to stop
the eviction pending your appeal and are a tenant of a residential property whose
monthly rent is $1000 or less, this $250 is all you are required to pay.
If you are a tenant of residential property whose monthly rent exceeds $1000 or a
tenant of a commercial property you must post bond of $250 but the court can, on
its own or on the motion of the landlord, increase the bond. See NRS 40.385(1)

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it is unclear whether the court views me as a residential tenant or a commercial

tenant. I pled as a commercial tenant, and therefore, given the No Cause EViction
notice (which, obviously did not allege non payment of rent or other non monetary
default on the lease), the summary eviction proceedings under NRS 40.253 are not
allowed to evict a commercial tenant such as myself (I ran both a law practice and a
mattress business out of the subject property....)...the rent was under $1,000....but if
I am a commercial tenant, the bond may be $250, or even more....however, that is
for non payment of rent notice eviction commercial tenants, not no cause one's like
my case...if I am viewed as a residential tenant or classified as such, then I think
$250 bond is owing, and I made several attempts to pay, including to Drema and a
Jocelyn, RJC filing office clerks and maybe one other clerk. I kept getting bounced
out of the RJC filing office, despite entering the line and even the window well
prior to 5pm....as such I believe any bond paid at this point should relate back to
those dates, which are further complicated by the amended Eviction Order and
treatment of the rent escrow/supersedeas/appeal bond in Judge Sferrazza's Orders
of October 27, 2011 and NOvember 7, 2011 and the clause in such orders related to
a rulign on my Motion To Stay before Judge Berry, which has not been ruled on
yet. Further, it would seem a stay should have been automatically granted when
Judge Sferrazza orally announced his ruling on October 26, 2011 that he was
retaining the $2,275 rent escrow, reclassifying it as a bond of sorts for the
appeal...."

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Coughlin filed on 4/7/12 in CV11-03628 a NRPC Rule 52 or 59(a),(e) tolling

Motion as to the 3/30/12 Order denying Coughlin's appeal (amongst other things)
(see Coughlin's Meta ROA at page 2984-3008) that has yet to be diposed of by the
2JDC. Coughlin filed an Amended Notice of Appeal in CV11-03628 to make even
more clear that he was and is appealing the 3/30/12 ORder denying his appeal of
the 10/25/11 and 10/27/11 summary eviction orders...Likewise, Coughlin filed on
9/15/12 a NRCP 52 or 59 Motion as to the 6/25/12 Order awarding Attorney's Fees.

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NRAP 3A(b)(2)(3) and (4) also list various types of interlocutory orders that
are independently appealable, such as an order granting or denying an
injunction (MRAO 2443 line 17-18). Ross v. Giacomo, 97 Nev. 550, 55455, 635
P.2d 298, 301 (1981) (stating that the court has refused to require the notice of
appeal to be a technical trap for the unwary draftsman, and allowing
reasonable inferences in the notice of appeal as to which order is being
appealed from),
Motion for Stay According to the terms of NRCP 62(a), there is an automatic
stay of most orders and judgments of 10 days following service of written
notice of its entry. While there is no firm deadline to file a motion for stay, it
should be done prior to the execution of the order or judgment. So, how is HIll
able to throw away my sentimental items from my grandmother in the town
dump just a day or so after the January 11, 2012 Order at issue here?
The Supreme Court recently clarified that the 10-day period in which to file a postjudgment tolling motion is calculated by counting only judicial days for the 10
days, and if service is accomplished by mailing or electronic means, an additional 3
calendar days are added after the 10 days. DeBoer, 134 P.3d at 731.(MROA 2449).
When a notice of appeal is timely filed, the district court cannot enter any orders
regarding the issues that are pending before the Supreme Court. See Mack-Manley
v. Mack, 122 Nev. 75, __, 138 P.3d 525, 52930 (2006). However, the district
court is free to make orders on collateral issues that are not pending before the
Supreme Court. Id. In the event that a district court enters an order on an issue
pending before the Supreme Court after the district court has been divested of
jurisdiction, the district courts order is void, but the district court may hear such a
matter and certify to the Supreme Court how it intends to rule. Smith, 109 Nev. at
74041, 856 P.2d at 1388. (MROA 2450).
C. EFFECT OF PREMATURELY-FILED NOTICE OF APPEAL. In the event that
a notice of appeal is filed during the pendency of any post-judgment tolling motion,
or after the oral pronouncement of an order but before the written order, the notice
of appeal is considered premature. See NRAP 4(a)(6). Although a notice of appeal
usually divests the district court of jurisdiction, a premature notice of appeal does
not divest the district court of jurisdiction. Id.; see also Smith v. Emery, 109 Nev.
737, 740, 856 P.2d 1386, 1388 (1993) (citation omitted). There are certain
exceptions to this general rule that the district court is divested of jurisdiction; for
example, a motion for stay according to NRCP 62(d) can be made at or after the
time of the filing of the notice of appeal. (not according to Judge Sferrazz'a
unserved Note Orders in early November and 12/22/11 in 1708 as to Coughlin NRS
40.385 Motions for Stay...). According to the former NRAP 4(a)(2), the Supreme
Court treated a premature notice of appeal as untimely, and consistently held that
such a notice of appeal shall have no effect. See, e.g., Rust v. Clark County
School Dist., 103 Nev. 686, 688, 747 P.2d 1380, 1382 (1987). However, on
December 16, 2004, the Supreme Court issued an order amending NRAP 4(a),
stating that it was unduly harsh to disallow premature appeals, especially when
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such appeals present meritorious issues. See Order Amending Rule 4(a) of the
Nevada Rules of Appellate Procedure, ADKT 381 (Dec. 16, 2004). The current
NRAP 4(a)(6) now states that a notice of appeal filed after the pronouncement of a
decision or order but before the written entry will automatically be considered as
filed on the date of and after entry of the order, judgment or written disposition of
the last-remaining timely motion (so long as the Supreme Court does not dismiss
the deficient notice of appeal in the interim). Additionally, NRAP 4(a)(7) allows a
party to file an amended notice of appeal to cure any such deficiency without
incurring any additional filing fees. Regardless of the timing of the notice of appeal,
an amended notice of appeal may be necessary to identify any post-judgment
tolling motions from which an appeal may be taken. (MROA 2451)

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2. coughlin's filing of 1/30/12 in cv11-03628 Hill reference in Motion to

Dismiss in 61383 of 4/26/13. Clearly, page 1 (meta-ROA (MROA) 2442-2443.
("Zach Coughlin files this document, and also wishes it to serve as notice that an
interlocutory appeal is being filed" of that 1/30/12 filing makes clear it is a Notice
of Appeal of an "interlocutory" variety, as to not just some denial of a NRCP Rule
62 TRO in the 1/11/12 Order that denied Coughlin's 12/30/12 Motion to Stay
(which at pages 12-13 and 18 clearly cited to the non-discretionary stay required by
NRS 40.385 and the difficulty to Respondent presented by the fact that either the
pre-Oct2011 form of NRS 40.385 (considering Coughlin's rent was under the
$1,000 listed therein) or the newer NRAP Rule 8 specifically invoking version
(whichever would apply, its not so clear given timeframes involved) make very bad
for Respondent considering the jurisdictional prerequisitie (see Paul v Armstrong,
Davidsohn v. Doyle, etc.) presented by NRS 40.254's prohibition against the use of
NRS 40.253 against "commercial tenant's" (and Coughlin clearly pled that he was
such, at least to a mixed extent where using the propertly as his former "home law
office" (something even Judge Sferrazza said on 10/25/11...."I'm not going to let
you live there, or use the office, for free" when threatening to apply an even more
attenuated and dubious applicaiton of NRS 118A.355(5) where Merliss had
consented to deals, settlements, and set offs, and any other allegedly owing rental
amounts (its not like Merliss ever pled non-payment, or met the jurisidictional
prerequisite of filign a verified "landlord's affidavit" per NRS 40.253(5)-(6) that
satisfied NRS 40.254(2)...)

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, so whether NRAP 3a(b)2-4 applies where NRAP 4 does and where Hill feeled
compelled to serve a Notice of Entry, and where In re Vertung makes rather clear,
is irrelevant. Furhter, the 7/30/12 Notice of Appeal was actually kited from Washoe
County Jail on July 7th, 2012 with clear instructions to file it in the court listed in
the caption (2JDC), and the 7/18/12 RJC file stamping (see RJC Administrator
Steve Tuttle's designation on that file stamping) and the chain of custody therein
make clear that the Notice of Appeal is timely. Further, the section IV of
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Coughlin's 1/30/12 filing in 03628 that Hill/Baker were so critical of in the

Opposition thereto makes clear the modern approach in light of the ADKT
announcement in 2004 disclaiming the previous import of Rust vis a vis premature
notices of appeal (to whatever extent the 1/30/12 or 2/14/12 or 2/15/12 (2/14/12 is
another Notice of Appeal, you'll find) NOA's are not given the interlocutory "goes
to jurisdiction" or would "affect the subject matter of the appeal" (Hill's mootness
argument judicially estops Hill from arguing something else there, now, it would
seem) approach set forth in Witters and Baron v. Best Buy (see attached
Emergenecy Amend Notice of Appeal in cv11-03628 and incorporate such by
reference, with a file stamping of 4:32 pm...), also,
The taking of an interlocutory appeal generally deprives the trial court of the
authority to act regarding the matter that is the subject of the appeal.[FN1]
However, except where the appeal concerns the very authority of the lower
court to adjudicate the controversy,[FN2] appeal of an interlocutory order does
not divest the trial court of all jurisdiction in a case, but rather restrains the trial
court from entering any order which would change or modify the order on appeal or
which would have the effect of interfering with the review of that order.[FN3]
[FN1] Florida Patient's Compensation Fund v. Caduceus Self Ins. Fund, 543 So. 2d
403 (Fla. Dist. Ct. App. 4th Dist. 1989) (trial court could not properly enter partial
summary judgment on the issue of liability while an appellate court was
considering the same issue on interlocutory appeal). [FN2] Baron v. Best Buy Co.,
Inc., 79 F. Supp. 2d 1350 (S.D. Fla. 1999). [FN3] Witters v. Hicks, 338 Ill. App. 3d
751, 273 Ill. Dec. 863, 790 N.E.2d 5 (5th Dist. 2003).
1510. Counterclaim or setoff , Landlord and Tenant 284(1), 391 A defense,
or claim for damages, may be set up by the tenant under a plea of setoff, or
under a counterclaim, or a cross-complaint. A defense, or claim for damages,
may be set up by the tenant under a plea of setoff,[1] or under a counterclaim,
[2] or a cross-complaint.[3] A counterclaim for recovery of rent paid, or for
injunctive relief related to the premises, is authorized where the landlord's
claim for possession is based on a allegation that the tenant has failed to pay
rent and is also authorized where the landlord seeks a monetary judgment for
unpaid rent even if the possessory claim is based on other defaults.[ [FN1] D.C.
Seidenberg v. Burka, 106 A.2d 499 (Mun. Ct. App. D.C. 1954). [FN2] Mo.
Scott v. Shackleford, 125 S.W.2d 522 (Mo. Ct. App. 1939). Counterclaim
implicating the right to possession available in summary process proceeding
Conn.19 Perry Street, LLC v. Unionville Water Co., 294 Conn. 611, 987
A.2d 1009 (2010). Counterclaim for damages not available in summary
proceedings for possession D.C.Pinzon v. A & G Properties, 874 A.2d 347
(D.C. 2005). Counterclaim against landlord for setoff not available in
summary process action Mass.Fafard v. Lincoln Pharmacy of Milford, Inc.,
439 Mass. 512, 789 N.E.2d 147 (2003). For full discussion of counterclaim or
setoff in summary proceedings, see 1549. [FN3] Nev.Johnston v. De Lay,
- 36/40 -

NOTICE

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63 Nev. 1, 158 P.2d 547 (1945). Johnston, a Nevada Case...Couglin was

deprived his right to set off's and counterclaims, especially udner NRS
118A.490 (to say nothing of the statutory penalites available incident to his
NRS 118A.510, .290, .390, .360, .355(2) counterclaims, etc., especially where
such so intertwined with subject matter of the possessory action... Hill's
associate Baker, at the conclusion of the 10/25/11 "Trial" that was later
recharacterized as a "continuation of the 10/13/11" summary proceeding (to
allow Coughlin to "substantiate" that a "genuine issue of material fact"existed
despite that being the first prong of the NRCP 56(c) analysis, and any
interpretation of the "are analogous" language in Anvui may not judicially
legislate such first prong of NRCP 56(c) into NRS 40.253(6) where only the
Judgment as a matter of law "no legal defense" second prong of NRCP 56(c) is
included therein, and any reading of Anvui demonstrates that the Nevada
Supreme Court in 2007 clearly understood that and respected the legislature's
reduction of the will fo the people.
Hill's associate sought just such a "montery judgment" after initialy
making clear 1708 was a "no cause summary eviction" and "the only thing up
for ruling is possessio of the property..." but, emboldened by the approach of
the RJC Judge, Baker flew too close to the sun, and sought to be awarded the
rent escrow the RJC had no right to order on 10/13/11 anyways givne the
judge ruled Coughlin showed he had a "legal defense", in satisfication of the
NRS 40.253(6) requirement that such be shown, so any later
"Trial"/"continuation of the summary eviction proceeding" was void where
held to demand Coughlin meet the NRCP 56(c)'s first prong ("establish a
genuine issue of material fact..."
XII. Reentry and Recovery of Possession by Landlord B. Actions for Recovery of
Possession in General 5. Remedies 1523. Injunction , Landlord and Tenant 285
An action by a landlord for the recovery of possession of the leased premises will
be enjoined only where there is not an adequate remedy at law and the facts require
equitable intervention. Injunctive relief is available in actions for recovery of
possession under some circumstances.[1] In accordance with the rules that govern
injunctions against actions for the recovery of possession of real property generally,
[2] an action by the landlord for recovery of possession of the leased premises will
not be enjoined where there is an adequate remedy, or defense to the action, at law,
[3] but where the remedy at law is not as full, adequate, and complete as may be
given by a court of equity, and the facts require equitable intervention, an
injunction restraining the possessory action may be obtained.[4] A counterclaim for
injunctive relief related to the premises may be authorized where the landlord's
claim for possession is based on a allegation that the tenant has failed to pay rent
and where the landlord seeks a monetary judgment for unpaid rent even if the
possessory claim is based on other defaults.[5] [FN1] Conn.Eamiello v. Liberty
Mobile Homes Sales, Inc., 208 Conn. 620, 546 A.2d 805 (1988). N.Y.Schick v.
- 37/40 -

NOTICE

1
2
3
4
5
6
7

Park Royal Associates, Inc., 65 N.Y.2d 1031, 494 N.Y.S.2d 292, 484 N.E.2d 655
(1985). Or.Edwards v. Fenn, 308 Or. 129, 775 P.2d 1375 (1989). [FN2] La.
Gaar v. Prudhomme, 181 So. 604 (La. Ct. App. 2d Cir. 1938). As to property as a
subject of protection in actions for injunctions, generally, see C.J.S., Injunctions
116 to 146. [FN3] La.Gaar v. Prudhomme, 181 So. 604 (La. Ct. App. 2d Cir.
1938). As to grounds for injunctive relief, generally, see C.J.S., Injunctions 27 to
92. [FN4] N.Y.Filby v. Gaden, 72 N.Y.S.2d 646 (Sup 1947). As to existence,
adequacy, or inadequacy of other remedies in actions seeking injunctive relief,
generally, see C.J.S., Injunctions 71 to 79. [FN5] D.C.Williams v. Paul, 945
A.2d 607 (D.C. 2008). CJS LANDLORD 1523
AFFIRMATION Pursuant to NRS 239B.030

8
9

The undersigned does hereby affirm that the preceding document does not contain

10

the social security number of any person. The assertions herein are made, pursuant

11
12

to NRS 53.045 under penalty of perjry and based upon my first hand knowledge of

13

these matters, except to perhaps a very, very few aspects of a a very few assertions

14

which are made upon information and belief.

15
16

Dated this 6 7 13

17
18
19

/s/ Zach Coughlin, signed

electronically
Zach Coughlin, Esq.

20

Appellant

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- 38/40 -

NOTICE

Proof of Service:

1
2
3

On this date, I, Zach Coughlin electronically served a true and correct copy of the
foregoing document to all registered efilers, and to those whom are not I placed a
true and correct copy of the foregoing document in the usps mail on this date:

4
5

Richard G. Hill, Esq.

Casey Baker, Esq.

Richard G. Hill, CHTD.

8
9
10
11

Attorneys for Respondent Merliss

652 Forrest St.
Reno, NV 89509
DATED THIS: Dated thi 6 7 13

12
13

/s/ Zach Coughlin

14

Zach Coughlin

15

Appellant

16
17
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19
20
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23
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- 39/40 -

NOTICE

INDEX TO EXHIBITS:

2
3

1. Exhibit 1: various relevant materials.

4
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- 40/40 -

NOTICE











 













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Docket 61383 Document 2013-14952

Docket 61383 Document 2013-14952

Docket 61383 Document 2013-14952

FILED







Electronically
01-30-2012:11:00:38 PM
Joey Orduna Hastings
Clerk of the Court
Transaction # 2731130


 

 
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FILED

Electronically
07-31-2012:01:42:02 PM
Joey Orduna Hastings
Clerk of the Court
Transaction # 3119021

FILED






Electronically
09-15-2012:12:04:18 AM
Joey Orduna Hastings
Clerk of the Court
Transaction # 3220377





   
  
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Docket 62337 Document 2013-16653

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IN THE SUPREME COURT OF THE STATE OF NEVADA

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Electronically Filed
ZACH COUGHLIN;

Appellant.

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vs.

May 17 2013 09:18 a.m.

)
Tracie K. Lindeman
)
Clerk of Supreme Court
)
) Supreme Court No: 61383
)
) District Court No: CV11-03628

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MATT MERLISS, MD; MATTHEW J.

MERLISS LIVING TRUST;

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Respondents

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NOTICE OF ATTACHING META-RECORD ON APPEAL TO THIS

NOTICE AND REQUEST THAT IT BE MADE PUBLICLY ACCESIBLE
VIA THIS COURT'S CASE MANAGEMENT SYSTEM
or alternatively motion for more time to complete this opposition

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Petitioner, ZACHARY BARKER COUGHLIN, representing himself,

hereby submits this "Meta-ROA" that he has compiled in chronological order, with
dockets for all associated cases at the front, bates stamped, with an index of some
sort (alphabetical or otherwise) to follow time permitting.
Due to the fact that filing Coughlin's meta-ROA, which is some 3,546 pages,
comprising 15 volumes, over some 192 MB would entail splitting such pdfs into
approximately 300 different files to be uploaded, painstakingly, one by one (only to
have this Court's Eflex staff then restack such individaul filings in all likelihood) in
light of the Eflex restrictions that one may only upload pdf's of 4 mb or less at a
time, there is a chance Coughlin may be unable to so file this meta-ROA in a timely
manner, but it is available for download, and Coughlin wishes for any filing of such
to be made publicly accesible as an exhibit to one of his filings, rather than treated
- 1/86 AMENDED OPPOSITION TO MOTION TO DISMISS APPEAL AND STAY
BRIEFING SCHEDULE AND MOTION TO STRIKE APPENDIX
Docket 61383 Document 2013-14587

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in the typical manner that ROA's are handled, which is to say, they are not
accesible or viewable to the public).
Subject: Request to FTP
From: Zach Coughlin (zachcoughlin@hotmail.com)
Sent: Thu 5/09/13 3:02 PM
To: tlindeman@nvcourts.nv.gov (tlindeman@nvcourts.nv.gov);
lcastillo@nvcourts.nv.gov (lcastillo@nvcourts.nv.gov)
https://skydrive.live.com/redir?resid=43084638F32F5F28!7933

Dear Clerk Lindeman,

I respectfully request to have the attached record placed for public review in 61383
and 62337
Sincerely,
Zachary Barker Coughlin

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DECLARATION UNDER PENALTY OF PERJURY AUTHENTICATING

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AND CERTIFYING META-ROA AND AFFIRMATION Pursuant to NRS

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239B.030
The undersigned does hereby affirm that the preceding document does not contain
the social security number of any person. The assertions herein are made, pursuant

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to NRS 53.045 under penalty of perjury and based upon my first hand knowledge

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of these matters, except to perhaps a very, very few aspects of a a very few

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assertions which are made upon information and belief, and Coughlin hereby

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authenticates the documents contained in the attached and linked to above "Meta-

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ROA" as true and correct copies of the documents on file in the respective cases

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included therein. The transcripts as typed are good faith attempts to provide some

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written transcription of the 10/13/11, 10/25/11, and 11/7/11 court dates in Rev11-

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1708, though the 12/20/11 dates still needs to be transcribed, and, as demonstrated
within the MROA, Respondent has been provide in hard copy and through links to
- 2/86 AMENDED OPPOSITION TO MOTION TO DISMISS APPEAL AND STAY
BRIEFING SCHEDULE AND MOTION TO STRIKE APPENDIX

downloadable exact copies of the JAVS audio transcript provided to Coughlin by

the Reno Justice Court, the audio transcript of all such hearings. In some instances

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the Meta-ROA departs from the ROA as transmitted by the RJC in CV11-03628 in

that the failure to transmit the disc attached to Coughlin's 10/11/11 Motion for

Continuance and the failure to abide by Judge Sferrazza's assurances to Coughlin

that he would be permitted to preserve for appeal anything he wished that was not

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being admitted into evidence, and the insufficient dpi (NRAP 10 requires such be
equal to the output of a laser printer, and 75 dpi is not sufficient, which is what the
RJC ROA translates to, and its not bates stamped, and its in reverse chronological

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order, and the 1/4/12 Supplemental is missing key filings by Coughlin, including

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one of 12/22/11 that points out that no "consent order" of any kind was agreed to by

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Coughlin as to the 12/21/11 Order Resolving Tenant's Motion to Contest Personal

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Property Lien, and Coughlin's 12/22/11 Notice of Posting Supersedeas Bond Where

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is My Stay, as well as Coughlin's 12/22/11 Notice of Posting Supersedeas Bond on

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a court approved form...further, only upon the filing of a 4/1/13 Supplemental by

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the RJC in 03628 purporting to address the deficiences in the 1/4/12 Supplemental

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filed therein, has Coughlin's 12/26/11 Notice of Appeal of that 12/21/11 Order

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Resolving Tenant's Motion to Contest Personal Property Lien been transmitted to

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the 2JDC) have been addresses in the MROA. Additionally, that 4/1/13

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Supplemental filed by the RJC in 03628 includes key filings by Respondent's then
counsel Casey D. Baker, Esq., which alleged that Coughlin never raised the
- 3/86 AMENDED OPPOSITION TO MOTION TO DISMISS APPEAL AND STAY
BRIEFING SCHEDULE AND MOTION TO STRIKE APPENDIX

jurisdictional bar presented by NRS 40.254 by way of NRS 40.253 prohibiting the

use of a summary eviction against a commercial tenant (Baker alleged this in his

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12/19/12 Opposition to Motion to Contest Personal Property Lien, which clearly

indicates Baker failed to take note of an number of instances prior to the 10/25/11

"trial"'s conclusion of Coughlin "raising the issue in the trial court" (something Hill

fraudulently testified that Coughlin failed to raise during his sworn testimony at

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Coughlin's 11/14/12 formal disciplinary proceeding now on appeal in 62337, where

Hill also testified that ), including, but not limited to, page 6 of Coughlin's 10/17/11
(see page 376 of the attached MROA) Emergency Motion to Stay, Set Aside, or

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Vacate Eviction Hearing Order, where such reads:

"In most cases, the landlord can choose whether to file a summary or formal
eviction action. However, there are circumstances under which summary eviction
cannot be used. For instance, summary eviction is not available for:

2) Eviction of commercial tenants for other than nonpayment of

rent (See NRS 40.254)
Using location for a "commercial" law practice, you filed a no cause, ie, "for other
than nonpayment of rent, not based in law or fact, Rule 11, plus this escrow thing
gets put asunder.
NRS 40.254 Unlawful detainer: Supplemental remedy of summary eviction and
exclusion of tenant from certain types of property. Lease allows for use for
commercial purposes. Void, void, void! NJCRCP 59, 60... "
However, as evidenced in the excerpts from the certified transcript of
Coughlin's formal disciplinary hearing incident to Hill's grievance against Coughlin
from 11/14/12, Hill not only lied in alleging that Coughlin "never raised the issue in
the trial court" (as to the impermissibility of using summary eviction procedures
under NRS 40.253 by way of NRS 40.254 against a "commercial tenant" where
non-payment of rent was not the basis for seeking such a summary eviction order
(ie, the landlord sought a no-cause eviction (Hill's associate and their client,
landlord Merliss lied about the length of the lease and whether it expired by its
- 4/86 AMENDED OPPOSITION TO MOTION TO DISMISS APPEAL AND STAY
BRIEFING SCHEDULE AND MOTION TO STRIKE APPENDIX

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terms upon the passing of 12 months where the lease actually defines the term of
the lease as "not less than 12 months", as did their 30 day Notice of Termination,
which incorrectly characterized the lease as having "expired" upon the passing of
12 months, making it ineffective as a Notice of Termination in much the same was
as dramatically overstating the past rent due makes a Non-Payment Notice
ineffective)
So, Hill's sworn testimony as the 11/14/12 formal disciplinary hearing was
lies where he testified:
HEARING - Vol. I, (Pages 40:11 to 41:4) Hill: "In the appeal -- we had recovered
a $42,000 attorney's fee award against Mr. Coughlin for handling just his
appeal of the eviction. He would file these documents that would have a caption
on it that would indicate that it was a motion under Rule 59, for example. And you
would get into it, and there would be no mention in the body of Rule 59, there
would be no analysis of Rule 59, but we would have to run down all of the little
issues that he would raise on the off chance that if you don't respond to one, the
district court judge is going to find something that he thinks is important, and the
client ends up having an adverse result. $42,000 on a no-cause 30-day eviction, and
that's just for the appeal of it, is absolutely astronomical.
But that should tell you -- I have provided Mr. King with a copy of Judge
Flanagan's orders in which he sets forth the reasons for such an extraordinary
award, being Mr. Coughlin's behavior, and the quality of the work that he was
filing."
HEARING - Vol. I, (Page 45:6 to 45:16) OBC Patrick King: "Q Mr. Hill, do you
recognize that document? A This is the attorney's fees order from Judge Flanagan.
MR. COUGHLIN: I object, your Honor. MR. ECHEVERRIA: Wait a minute, Mr.
Coughlin. Wait. MR. COUGHLIN: Yes, sir. MR. ECHEVERRIA: There's a
question, Mr. King? MR. KING: Yes. I asked Mr. Hill if this was the order that he
was testifying about regarding the judge ordering of sanctions of $40,000 in
attorney's fees."
HEARING - Vol. I, (Pages 46:1 to 47:7) THE WITNESS (Hill): "Yes, sir. This is
the award regarding attorney's fees in accordance with NRS 69, I believe it's 050.
There is also an order granting us approximately $2500 in costs. BY MR. KING: Q
In this particular order at Page 2, is this the order signed by Judge Flanagan? A
Yes, sir. Q What date did Judge Flanagan sign this order? A This is dated June
25th, 2012, and it bears a file stamp of the same date. Q Could you read the
paragraph regarding "Merliss goes even further and states." Could you read that
paragraph on Page 2. A Beginning at line 4? Q Line 9 on Page 2. A Okay.
"Merliss goes even further and states: As proven above and below, the frivolity and
vexatiousness of Coughlin's maintenance and extension of this matter has been so
beyond reason, and so outrageous, and the nexus of his behavior to the fees
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incurred by Merliss so direct and indisputable, that nothing less than a full award of
those fees should even be considered by the court. To not impose the full measure
of the harm Coughlin has caused would reward and encourage his vexatiousness in
this and other cases. There needs to be a day of reckoning for Coughlin's antics." Q
In this order did Judge Flanagan accept that by granting the full amount of fees
requested? If you read the last sentence of Page 3. A Yes. "Accordingly, Merliss's
motion for attorney's fees is granted in the sum of $42,065.50."
To any extent Coughlin failed to produce Judge Flanagan's 8/28/12 Order at
the 11/14/12 Hearing as evidence that the 6/25/12 Order was not a sanction might
entice one to apply some Lau application, remember, notice and opportunity to be
heard are required in disciplinary hearings, regardless of even the most attenuated
notice-pleading state approach, and nothing in King's 8/23/12 Complaint put into
issue anything about the appeal of the summary evicition in CV11-03628 or
Coughlin's work representing himself therein, much less noticed Coughlin that
Judge Flanagna's 6/25/12 award of $42,065 in attorney's fees based upon an
application of DCR 13(3) that failed to account for Coughlin's preemptive
Opposition to Motion for Attorney's Fees of 1/14/12 in 03628, or the fact that NRS
69.050 only applies to "judgments", or that excusable neglect absolutely is present
where any purported failure by Coughlin to oppose that post-judgment motion for
sanctions (which are not allowable, especially where no 21 day safe harbor filing
ready motion was ever served) given 2JDC Judge Elliott's wrongfull incarceration
of Coughlin on 4/19/12 in CR12-0376 (question about hipaa rights do not justify
summarily incarcerating a practicing attorney, putting him in a jail that denies him
psychiatric medication he has presecriptions for, the releasing him to a WCDA''s
Office and Public Defender that insist on violating NRS 178.405 the day an an
Opposition to Baker's 4/19/12 Motion for ATtorney's Fees/Sanctions was due
(5/7/12) in 03628 by attempting to hold a criminal trial in RJC RCR2011-063341).
To realize what a fraud Hill and King perpetrated upon Couglin and the NNDB
Panel, once must be aware of King's 8/30/12 email to Coughlin, and the content of
the 8/28/12 Order by Judge Flanagan that was attached to that email:

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"FW: Mr Coughlin

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From: Patrick King (PatrickK@nvbar.org) This sender is in your safe list.

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Sent: Thu 8/30/12 1:46 PM

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To:

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zachcoughlin@hotmail.com (zachcoughlin@hotmail.com)
1 attachment

Order (8-28-12).pdf (147.4 KB)

Good Afternoon Mr. Coughlin,
Attached is an Order that pertains to you.
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I have not yet received an answer to the Complaint that I filed against you. Could
you let me know when you expect to file an Answer?
Thank you.
Patrick King"
Further, in his 8/28/12 Order in 03628 (which King attached to the above
8/30/12 email to Coughlin), Judge Flanagan further drove home the point that his
6/25/12 Order was not an attorney fees sanction, wherein Judge Flanagan wrote:
AGAIN, AS WAS THE CASE IN COUGHLIN'S ATTEMPT TO SET ASIDE MERLISS'S AWARD OF
COSTS COUGHLIN'S MOTIONS HERE ATTEMPT TO RE-LITIGATE SUBSTANTIVE ISSUES THIS
COURT HAS ALREADY DECIDED, OR FRIVOLOUS CLAIMS THIS COURT HAS PREVIOUSLY
IGNORED. P2:6-10; FURTHER THE OBC'S KING EMAIL COUGHLIN A COPY OF THAT 8/28/12
ORDER BY JUDGE FLANAGAN, PROVIDING CONCLUSIVE PROOF THAT KING WAS AWARE OF IT, AND
YET PERSISTED IN HIS VIOLATING OF RPC 3.1, AND 3.3 IN SEEKING TO HAVE COUGHLIN
DISBARRED INCIDENT to the fraudulent assertion he and Hill maintained at the 11/14/12
Hearing that Judge Flanagan's attorney fee award of 6/25/12 was a sanction.
I
Failure

to comply with the 21 day safe harbor jurisdictional prerequisite by

Richard G. Hill, Esq.'s associate, Baker, (much like springgate's failure to in the
"sanction" at issue in 60302, and NG12-0435, now on appeal in 62337) would
render Judge Flanagan's $42,065.00 sanction award of 6/25/12 (formal hearing
exhibit 2 at the 11/14/12 disciplinary hearing) void as well, except for the fact that
NRAP 38 actually applies, rather than NRS 7.085 (which invokes NRCP 11, ie, not
applicable to appeals, and NRAP 38 must be made on a court's own motion, and the
application of DCR 13(3) that Judge Flanagan admits to in his 6/25/12 Order in
03628 (Judge Flanagan wrote: AFTER REVIEWING MERLISS'S MOVING PAPERS-INCLUDING
THE DETAILED AND THOROUGH SUMMARY OF FEES AND HIS COUNSELS' ACCOMPANYING
DECLARATIONS-AND AFTER CONSIDERING ALL OF THE PARTIES' ARGUMENTS, THIS COURT
CONCLUDES MERLISS'S ATTORNEY'S FEES REQUEST IS AUTHORIZED BY NEVADA LAW. THIS COURT
ALSO HAS CONSIDERED THE FACTORS SET FORTH IN BRUNZELL, SUPRA. AFTER ANALYZING THOSE
FACTORS, AND GIVEN THE UNIQUE FEATURES OF THIS CASE, THIS COURT CONCLUDES MERLISS'S
FEE REQUEST IS REASONABLE. P3:13.. WHERE JUDGE FLANAGAN SPECIFICALLY MENTIONS ONLY
THE LANDLORD'S MOVING PAPERS AND WHERE HE PREVIOUSLY NOTES (INCORRECTLY) IN THE
ORDER THAT COUGHLIN FAILED TO FILE ANY OPPOSITION (IN THE ABSENCE OF ANY OPPOSITION
FROM APPELLANT ZACHARY BARKER COUGHLIN ("COUGHLIN"), MERLISS
SUBMITTED THIS MATTER FOR DECISION ON MAY 9, 2012.

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While the fact that nothing in the SBN's 8/23/12 SCR 105 Complaint against
Coughlin could be said to have put him on Notice that Judge Flanagan's 6/25/12
Order awarding some $42,065.00 in attorney's fees against Coughlin would be a
basis for any allegation of misconduct on Coughlin's part (Asst Bar Counsel King
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had worked very hard to scrub clean the Complaint of any traces of Richard G. Hill,
Esq. or the summary eviction from Coughlin's former home law office in RJC
Rev11-1708, and the appealS thereof in CV11-03051 and CV11-03628 (the former
making the latter of dubious jurisdictional legitimacy, especially where the 12/8/12
Order in CV11-03051 bears a Certificate of Mailing listing an outdated address for
Coughlin (121 River Rock) considering Coughlin filed on 11/29/11 a Notice of
Appearance apprising Department 1 of Coughlin's then updated address (817 N.
Virginia St.), and the fact that the Notice of Electronic Filing of 12/8/11 does not
indicate Coughlin being served thereby either...meaning the deadline for Coughlin
to appeal that 12/8/11 Order has yet to begin to run...and the denial of Coughlin's
10/19/11 Motion to Proceed on Appeal In Forma Pauperis (the docket notates that
Coughlin submitted a Notice of Appeal as his proposed filing alongwith that IFP
Motion in 03051) of 11/8/11 focuses only on the "appeal bond", which Judge
Steinheimer indicated the District Court had not jurisdiction to waive, but the fact
that 2JDC Judge Berry even ruled on Coughlin's 11/8/11 Emergency Motion to
Stay in 03051, and the 2JDC even accepted it for filing by Coughlin only. King
scrubbed his 8/23/12 Complaint so clean of any traces of Hill or the eviction that
King chose not to even put into evidence Hill's 1/14/12 purported written grievance
to the SBN against Coughlin, even where the SBN's OBC was attempting to saddle
Coughlin with an RPC 8.1 violation incident to an allegation that Coughlin failed to
respond appropriately to such purported written grievance by Hill (so for OBC
King to then put Judge Flanagan's 6/25/12 "sanction" in the leadoff hitter spot in his
formal hearing exhibits batting order (well, really, it was more of a cleanup hitter in
spirit), makes all the more inequitable and unsupportable the reliance upon such
6/25/12 Order awarding attorney's fees against Coughlin as a basis for permanently
disbarring him...especially in light of Judge Flanagan's 8/28/12 Order in CV1103628 (which King emailed to Coughlin on 8/30/12...something he probably
wishes he had not admitted to being award of now that Coughlin is pointing out the
fraud Hill and King perpetrated upon the NNDB Panel on 11/14/12 in asserting that
6/25/12 Order in 03628 was a "sanction"...something the 12/14/12 FOFCOL by the
Panel currently being appealed relied upon heavily as a basis for seeking to
permanently disbar Coughlin)... demonstrates that the 2JDC either waived the
District Court filing fee for that case (IFP), or applied the $216.00 check Coughlin
gave the RJC for such District Court filing fee to CV11-03051, and perhaps CV1103628 as well...
Also the appeal in 61383 is hardly "moot", and even should should one view
it as such, there are significant collateral consequences to Coughlin tied to review
of those matters on appeal in 61383 (which should absolutely include all of Judge
Flanagan's Order, especially that of 3/30/12 Denying Coughlin's appeal of the
summary eviction based upon something other than a de novo standard of review
(except maybe the 3/27/12 Order Denying Respondent's Second Motion for Order
to Show Cause...which, by the way, disproves the vague, non-specific allegations in
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King's 8/23/12 Complaint at issue in 62337 respecting Coughlin's alleged

"interferring with the contractor". Coughlin seeks this Court to Order prepared at
Public Expense the transcript of that 3/23/12 and 3/26/12 Hearing of the Order To
Show Cause that Hill had the RMC Marshal Harley Judge Nash Holmes testified
about when she testified as to Harley's unsworn hearsay about "recording devices
disassembled and part of it hidden in the bathroom", etc., etc., serve Coughlin on
2/27/12 that Order to Show Cause in 03628, in violation of the immunity/privilege
against service afforded litigants and their attorney's while attending court, and the
courthouse sanctuary rule.
Regardless, Chief Justice Pickering's 4/24/13 Order in 61383 reinstating
Coughlin's appeal makes for materially altered circumstances or intervening change
of law or newly discovered evidence sufficient to makes unsupportable the NNDB
Panel's reliance upon the following testimony by Hill in support of a finding that
Coughlin committed professional misconduct:
HEARING - Vol. I, (Page 41:11 to 41:14) Hill: "At this point he has an appeal
pending. Two appeals. He appealed the attorney's fees awards, and that was just
dismissed last week because he didn't do anything with it."
Further, Hill's lied to the disciplinary during his sworn testimony of 11/14/12
in the matter now on appeal in 62337 in the following:
HEARING - Vol. I, (Pages 80:8 to 82:18) Coughlin: "Q Do you think it's
possible that I just felt that I had a basis for defending against a summary
eviction as a commercial tenant where you pled no cause, and the law has an
express dictate against summarily evicting commercial tenants unless you pled
nonpayment of rent? Do you think maybe I just thought that was a legitimate
position I took? A No, sir. You made that up after the fact. Q Have you
noticed that in the tenth affidavit I pled that it was my law office? A You did
not have a business license, sir. You were not lawfully operating a business
there. Q Well, regardless of whether or not that's true, that's different than
what you just said. You said this is a criminal trespass trial. You said, "You
made that up after the fact." But then I pointed out to you that, no, Rich it's
pled right there. It's pled right there. So is that truthful? MR. KING:
Objection. Argumentative. THE WITNESS: Is there a question in there? BY
MR. COUGHLIN: Q Yeah. You throw out, "You made it up after the fact."
And then I say, no, Rich, it's October 19th (NOTE: actually its 10/17/11 at
page 6 of Couglin's Motion in 1708, as excerpted above), it's pled there, it's
pled in the tenth (Tenant's) affidavit, it's dealt with extensively at trial. A lot of
questions and testimony at the trial which was later remixed into a -- so is that
demonstrating candor on your part to assert that I made it up after the fact
when there's all this documentation that says, no, Rich, it's right there, it's
commercial tenancy? A Mr. Coughlin, as you know, I did not attend that
trial, nor have I read the transcript. I will note though that Judge Sferrazza
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ruled that you did not prove anything that you attempted to try to prove. Q
So you just said -- A That speaks very loudly to your competence and what
you put in the record in that court. And it was affirmed on appeal. Q Can you
tell me, when you say you didn't plead that, you didn't bring it up. But then a
minute later you say, I didn't go to the trial, and I didn't read this and that.
How can you say you didn't bring that up, you made it up after the fact, and
reconcile that with the statement that you didn't go to the trial? MR. KING:
Objection. Argumentative. MR. ECHEVERRIA: Sustained. I'll allow you one
more question. MR. COUGHLIN: That's all. MR. ECHEVERRIA: It's now,
according to the clock on the wall here, it's now 10:45. BY MR. COUGHLIN:
Q What do you mean when you say, "You made that up after the fact"? A
Mr. Baker, in papers that he filed, pointed out to the court that you had not
raised that issue in the justice's court, and you did not challenge that statement
by Mr. Baker in the papers that he filed with the court in your responding
papers. Q What statement by Mr. Baker? A That you had not timely raised
the commercial tenant business in the justice's court."
Petitioner, ZACHARY BARKER COUGHLIN, representing himself.,
opposes Respondent's moving this court to dismiss this case and to stay the briefing
schedule in the interim.

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IV. Rights, Duties, and Liabilities of Parties C. Particular Rights of Landlord

6. Landlord's Possessory Remedies b. Summary Possessory Actions (6) Appeal
885. Mootness West's Key Number Digest, Landlord and Tenant k291(18), 315(1)
Under some authority, a tenant's appeal from a trial court's award of possession to a
landlord in a landlord's forcible-detainer action is moot where the tenant vacates the
premises.[FN1] Nonetheless, an appellate court will review an issue raised in an
unlawful-detainer action despite the mootness of the issue since the tenant had
vacated his or her apartment if the issue was a matter of continuing and substantial
public interest.[FN2] Under other authority, when the right to possession is at issue
in an unlawful-detainer action, the issue is not moot on appeal simply because the
tenant has vacated the premises.[FN3] Similarly, it has been held that the right to
appeal from a judgment of eviction is not forfeited when the tenant complies with
the judgment.[FN4] [FN1] Cramblett v. Wright, 2005-Ohio-6109, 2005 WL
3072908 (Ohio Ct. App. 5th Dist. Coshocton County 2005); Baxter v. Gates of
Normandie, 2004 WL 303594 (Tex. App. Dallas 2004). An appeal from a summary
process judgment becomes moot where, at the time of the appeal, the defendant is
no longer in possession of the premises. Cheshire v. Lewis, 75 Conn. App. 892, 817
A.2d 1277 (2003). Where the tenant's lease expires and he or she presents no basis
for claiming a right to possession after that date, the issue of possession was moot
as of that date. Marshall v. Housing Authority of City of San Antonio, 49 Tex. Sup.
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Ct. J. 399, 2006 WL 508635 (Tex. 2006). [FN2] Josephinium Associates v. Kahli,
111 Wash. App. 617, 45 P.3d 627 (Div. 1 2002). [FN3] Housing Authority of City
of Pasco and Franklin County v. Pleasant, 126 Wash. App. 382, 109 P.3d 422 (Div.
3 2005). [FN4] Smith v. Shirley, 815 So. 2d 980 (La. Ct. App. 3d Cir. 2002), writ
denied, 816 So. 2d 308 (La. 2002).
As to the 12/21/11 Order in 1708, Couglin in no way consented to it or
entered into any "Consent Order", and it is telling that the RJC still, even after
Coughlin's protestations resulted in a 4/1/13 Supplemental filined in 03628
purporting to correct that which was left out by the 1/4/12 Supplemental therein,
still fails to inclued Coughlin's 12/22/11 Notice that 12/21/11 Order was Just That,
An Order and That Coughlin In No Way Consented To It, and Coughlin's 12/22/11
Notice of Posting Supersedeas Bond Where is My Stay, as well as Coughlin's
12/22/11, on a court approved form, Notice of Posting Supersedeas Bond.
VIII. Appellate Determinations B. Loss of Reviewability; Mootness 2.
Acquiescence in Judgment a. In General Topic Summary Correlation Table
References 579. Right to appeal consent judgment West's Key Number Digest
West's Key Number Digest, Appeal and Error k154(4) A party normally has no
standing to appeal a judgment to which he or she consen-ted.[FN1] However, this
rule is subject to numerous exceptions and qualifications. It does not apply where
the consent was only as to the form of the proposed order.[FN2] the
judgment is alleged to have been entered in excess of the court's jurisdiction.[FN3]
it is alleged that the consent to the judgment was coerced[FN4] or never given at
all.[FN5] a party requested the entry of a final judgment in order to challenge an
interlocutory order which he or she wished to appeal without further delay.[FN6]
the question presented by the appeal is one of public interest.[FN7] the
judgment allegedly deviates from the terms of the parties' agreement.[FN8] the
judgment was allegedly obtained by fraud, collusion, or mistake.[FN9] the party
appealing has unequivocally reserved the right to appeal the judgment.[FN10]
the judgment adversely affects the rights of a minor or other incompetent per-son.
[FN11] CUMULATIVE SUPPLEMENT Cases: If there was no actual consent
because the consent judgment was coerced, exceeded the scope of consent, or was
not within the jurisdiction of the court, or for any other reason consent was not
effective, an appeal will be entertained. Suter v. Stuckey, 402 Md. 211, 935 A.2d
731 (2007). No-fault insurer did not waive its claim on appeal that trial court erred
in awarding attorney fees for unreasonable refusal to pay a claim by acquiescing in
the entry of trial court's final judgment, where insurer had consistently objected to
the award of attorney fees; insurer's approval of the entry of the judgment did not
transform the disputed issue into an unappealable settlement or consent judgment.
Ross v. Auto Club Group, 481 Mich. 1, 748 N.W.2d 552 (2008). [END OF
SUPPLEMENT] [FN1] Adams v. Lever Bros. Co., 874 F.2d 393, 13 Fed. R. Serv.
3d 1090 (7th Cir. 1989); In re Care and Treatment of Saathoff, 272 Kan. 219, 32
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P.3d 1173 (2001). [FN2] Devex Corp. v. Houdaille Industries, Inc., 382 F.2d 17
(7th Cir. 1967). [FN3] National Wildlife Federation v. Gorsuch, 744 F.2d 963, 39
Fed. R. Serv. 2d 1432 (3d Cir. 1984); City of Glendale v. George, 208 Cal. App. 3d
1394, 256 Cal. Rptr. 742 (2d Dist. 1989). [FN4] In re Marriage of Brockman, 194
Cal. App. 3d 1035, 240 Cal. Rptr. 96 (2d Dist. 1987). [FN5] Newman v. Graddick,
740 F.2d 1513 (11th Cir. 1984) (rejected on other grounds by, U.S. v. State of
Tenn., 925 F. Supp. 1292 (W.D. Tenn. 1995)). [FN6] U. S. v. Procter & Gamble
Co., 356 U.S. 677, 78 S. Ct. 983, 2 L. Ed. 2d 1077 (1958). [FN7] City of Highwood
v. Obenberger, 238 Ill. App. 3d 1066, 179 Ill. Dec. 65, 605 N.E.2d 1079 (2d Dist.
1992). [FN8] Johnson v. Quinn, 821 F.2d 212 (3d Cir. 1987); Hatsis v. Hatsis, 122
A.D.2d 111, 504 N.Y.S.2d 508 (2d Dep't 1986). [FN9] Salinas v. Roadway
Express, Inc., 802 F.2d 787 (5th Cir. 1986); U.S. v. Olin Corp., 606 F. Supp. 1301
(N.D. Ala. 1985). [FN10] Coughlin v. Regan, 768 F.2d 468 (1st Cir. 1985). [FN11]
Jeanblanc v. Mellott, 152 Ill. App. 3d 801, 105 Ill. Dec. 705, 504 N.E.2d 990 (2d
Dist. 1987) (disapproved of on other grounds by, Gibson v. Belvidere Nat. Bank
and Trust Co., 326 Ill. App. 3d 45, 259 Ill. Dec. 930, 759 N.E.2d 991 (2d Dist.
2001)).
VIII. Appellate Determinations B. Loss of Reviewability; Mootness 3. Mootness a.
In General Topic Summary Correlation Table References 596. Generally West's
Key Number Digest West's Key Number Digest, Courts k30 West's Key Number
Digest, Federal Courts k12.1 Neither state[FN1] nor federal[FN2] appellate courts
will consider the merits of a moot appeal. Definition: An appeal becomes moot
when it is no longer live or when the parties lack a legally cognizable interest in
the outcome;[FN3] or when the case no longer presents a real[FN4] or
justiciable[FN5] controversy because the issues involved have become academic or
nonexist-ent,[FN6] or when the occurrence of an event renders it impossible for the
appellate court to grant any effective relief.[FN7] However, an appeal will not be
rendered moot by the presentation of moot claims where nonmoot claims are also
presented and there remains a live controversy between adverse parties.[FN8]
Practice Tip: The issue of mootness may be raised by a party,[FN9] an amicus
curiae,[FN10] or the reviewing court[FN11] at any time before the determination of
the appeal,[FN12] and may be amplified by a brief filed after oral argument.[FN13]
The party asserting mootness carries the burden of establishing it.[FN14] Since the
mootness doctrine is a limitation on the constitutional jurisdiction of the federal
appellate courts,[FN15] the parties may not, by stipulation, attempt to enlarge the
jurisdiction of the court by requesting that it consider a moot question.[FN16]
Caution: Where an appellant continues to litigate an appeal after it clearly becomes
frivolous, unreasonable, and groundless because such appeal is clearly moot, costs
of the appeal and attorney's fees will be assessed against the appellant.[FN17]
CUMULATIVE SUPPLEMENT Cases: The existence of an actual controversy is
an essential requisite to appellate jurisdiction. Town of New Hartford v.
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Connecticut Resources Recovery Authority, 291 Conn. 502, 970 A.2d 578 (2009).
The question of whether victim-injury points could be imposed, which resulted in a
longer sentence of imprisonment and loss of liberty, in the absence of a causal
connection between the underlying offense and the victim's death was a claim of
great public importance and it was likely to recur yet evade review, and thus,
defendant's appeal was not moot, even though he had finished serving the
incarcerative portion of his sentence. Sims v. State, 998 So. 2d 494 (Fla. 2008).
Although the issues in state's appeals on questions of law following an acquittal are
necessarily moot, the purpose of the appeal is to provide guidance for lower courts
in similar future cases. State v. Jackson, 889 N.E.2d 819 (Ind. 2008). A threshold
question in any appellate review of a controversy is the mootness of the
controversy. Missouri Public Service Com'n v. Missouri Interstate Gas, LLC, 266
S.W.3d 881 (Mo. Ct. App. W.D. 2008). A case is considered "moot" when a
determination is sought on a matter which, when rendered, cannot have any
practical effect on the existing controversy; typically, courts will not entertain such
cases because it is not the responsibility of courts to decide abstract propositions of
law. Hindman v. Appalachian State University, 723 S.E.2d 579 (N.C. Ct. App.
2012). The Supreme Court may consider the threshold issue of mootness in every
appeal. In re G.K.S., 2012 ND 17, 809 N.W.2d 335 (N.D. 2012). Where an outside
event has rendered a question moot, courts must exercise judicial restraint; thus,
courts generally refrain from giving an advisory opinion on a moot question or
ruling on a question of law that cannot affect matters at issue in the case. Thompson
v. Thompson, 196 Ohio App. 3d 764, 2011-Ohio-6286, 965 N.E.2d 377 (10th Dist.
Franklin County 2011), appeal not allowed, 131 Ohio St. 3d 1500, 2012-Ohio1501, 964 N.E.2d 440 (2012). An appellate court will not pass on moot and
academic questions or make an adjudication where there remains no actual
controversy. Sloan v. Department of Transp., 379 S.C. 160, 666 S.E.2d 236 (2008).
Appellate courts decide only those issues in which a controversy exists. State for
Protection of Cockerham v. Cockerham, 218 S.W.3d 298 (Tex. App. Texarkana
2007). [END OF SUPPLEMENT] [FN1] Van Schaack Holdings, Ltd. v.
Fulenwider, 798 P.2d 424 (Colo. 1990); State of N.M. ex rel CYFD v. Amanda H.,
141 N.M. 299, 2007-NMCA-029, 154 P.3d 674 (Ct. App. 2006); Holton v.
Department of Employment & Training (Town of Vernon), 178 Vt. 147, 878 A.2d
1051 (2005). [FN2] Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S. Ct.
1249, 108 L. Ed. 2d 400 (1990); Rendell v. Rumsfeld, 484 F.3d 236 (3d Cir. 2007).
[FN3] City of Erie v. Pap's A.M., 529 U.S. 277, 120 S. Ct. 1382, 146 L. Ed. 2d 265
(2000); ABN Amro Verzekeringen BV v. Geologistics Americas, Inc., 485 F.3d 85
(2d Cir. 2007). District courts cannot retain jurisdiction over cases in which one or
both of the parties plainly lacks a continuing interest, as when the parties have
settled or a plaintiff pursuing a nonsurviving claim has died, notwithstanding the
sunk costs to the judicial system. Friends of the Earth, Inc. v. Laidlaw
Environmental Services (TOC), Inc., 528 U.S. 167, 120 S. Ct. 693, 145 L. Ed. 2d
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610, 163 A.L.R. Fed. 749 (2000). [FN4] Roark v. Roark, 551 N.E.2d 865 (Ind. Ct.
App. 3d Dist. 1990); Montana Tavern Ass'n v. State By and Through Dept. of
Revenue, 224 Mont. 258, 729 P.2d 1310 (1986). [FN5] Idaho County Property
Owners Ass'n, Inc. v. Syringa General Hosp. Dist., 119 Idaho 309, 805 P.2d 1233
(1991); Martin-Trigona v. Baxter, 435 N.W.2d 744 (Iowa 1989). [FN6] Junkins v.
Branstad, 421 N.W.2d 130 (Iowa 1988). [FN7] 598. [FN8] Powell v.
McCormack, 395 U.S. 486, 89 S. Ct. 1944, 23 L. Ed. 2d 491 (1969); In re Kellogg
Brown & Root, Inc., 166 S.W.3d 732 (Tex. 2005). [FN9] Taylor v. McElroy, 360
U.S. 709, 79 S. Ct. 1428, 3 L. Ed. 2d 1528 (1959). [FN10] Standard Fashion Co. v.
Magrane-Houston Co., 258 U.S. 346, 42 S. Ct. 360, 66 L. Ed. 653 (1922). [FN11]
Bahnmiller v. Derwinski, 923 F.2d 1085 (4th Cir. 1991); Riverhead Sav. Bank v.
National Mortg. Equity Corp., 893 F.2d 1109, 15 Fed. R. Serv. 3d 1351 (9th Cir.
1990). [FN12] Huddleston v. Nelson Bunker Hunt Trust Estate, 109 B.R. 197 (N.D.
Tex. 1989). [FN13] Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d
917 (1968). [FN14] Center for Biological Diversity v. Lohn, 483 F.3d 984 (9th Cir.
2007). [FN15] 597. [FN16] U.S. v. Alaska S.S. Co., 253 U.S. 113, 40 S. Ct. 448,
64 L. Ed. 808 (1920); Shaffer v. Howard, 249 U.S. 200, 39 S. Ct. 255, 63 L. Ed.
559 (1919). [FN17] Werch v. City of Berlin, 673 F.2d 192 (7th Cir. 1982).
VIII. Appellate Determinations B. Loss of Reviewability; Mootness 3. Mootness b.
Exceptions to Mootness Doctrine Topic Summary Correlation Table References
602. Issues which are capable of repetition yet evade review West's Key Number
Digest West's Key Number Digest, Courts k30 West's Key Number Digest, Federal
Courts k12.1 A.L.R. Library Federal administrative orders as subject to judicial
review where such orders are capable of repetition, yet evading review, 66
A.L.R. Fed. 285 An appeal is not rendered moot by a change of circumstances
occurring during the pendency of the litigation if the case is one which is capable of
repetition, yet evades review.[FN1] The application of this rule can well be
illustrated by abortion cases, since the term of pregnancy is so relatively short that a
pregnancy will come to term before the usual appellate process is completed; thus,
if litigation involving pregnancy is to ever come before the higher appellate courts,
a flexible rule regarding mootness is required, and the capable of repetition, yet
evades review test is used.[FN2] In the absence of a class action, the capable of
repetition, yet evading review doctrine is limited to situations where two elements
combine: (1) the challenged action is in its duration too short to be fully litigated
prior to its cessation or expiration; and (2) there is a reasonable expectation or
demonstrated probability that the same complaining party will be subjected to the
same action again.[FN3] Reasonable expectation should not be equated with
demonstrated probability; rather these standards should be viewed in the
disjunctive[FN4] so that a controversy may be found to be capable of repetition
based on expectations that, while reasonable, are hardly demonstrably probable.
[FN5] The concern in all cases involving potentially moot claims is whether the
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controversy is capable of repetition, not whether the claimant can demonstrate that
a recurrence of the dispute is more probable than not.[FN6] However, the capable
of repetition, yet evading review exception will not be applied where there is
no more than a theoretical possibility that the same party will be subject to the same
action again.[FN7] the plaintiff can show only that other people may litigate a
similar claim in the future.[FN8] a plaintiff brings the action only on his or her
own behalf, the action becomes moot, and it appears that another case could reach
the supreme court in time to obtain appellate review and effective relief.[FN9] In an
appeal of a class action, the mere fact that the controversy has been resolved as to
the class representative does not require dismissal on the ground of mootness, so
long as the controversy remains alive as to other class members and the issue
sought to be litigated will escape full appellate review at the behest of any single
challenger.[FN10] CUMULATIVE SUPPLEMENT Cases: Father's imprisonment
for up to 12 months, following a civil contempt finding based on his failure to
comply with a South Carolina child support order, was in its duration too short to
be fully litigated through the state courts and arrive in the United States Supreme
Court prior to its expiration, supporting father's argument that his claim that the
Federal Constitution's Due Process Clause entitled him to counsel at his contempt
hearing was not moot because it fell within the special category of disputes that
were capable of repetition while evading review. U.S.C.A. Const.Amend. 14.
Turner v. Rogers, 131 S. Ct. 2507 (2011). Bar examination provider's appeals of
preliminary injunctions allowing legally blind applicant for admission to practice of
law to take licensing examinations on computer equipped with assistive technology
software were not moot, even though examinations had already been conducted,
since situation was capable of repetition yet evading review, as provider could
reasonably be expected to be subject to another preliminary injunction upon
applicant signing up for future examination after failing prior examinations, and
duration of injunctions was too short to allow full litigation prior to expiration of
injunctive relief. Enyart v. National Conference of Bar Examiners, Inc., 630 F.3d
1153 (9th Cir. 2011). "Capable of repetition yet evading review" exception to
mootness doctrine applied in appeal by Equal Employment Opportunity
Commission (EEOC) in suit against employer to enforce administrative subpoena;
employer could comply with subpoena requesting preliminary information based
upon another charge, thus mooting case at hand, and then turn around and challenge
EEOC's next administrative subpoena based upon the second charge, raising
exactly the same legal arguments it raised in district court and before Court of
Appeals. E.E.O.C. v. Federal Exp. Corp., 543 F.3d 531 (9th Cir. 2008), opinion
amended and superseded on denial of reh'g, 558 F.3d 842 (9th Cir. 2009). The
capable-of-repetition exception to Article III's case or controversy requirement
applies only in exceptional situations, and generally only when the named plaintiff
can make a reasonable showing that he will again be subjected to the alleged
illegality. U.S.C.A. Const. Art. 3, 2, cl. 1. Wolfson v. Brammer, 822 F. Supp. 2d
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925 (D. Ariz. 2011). Claims by Medicare Part D recipients that Department of
Health and Human Services and Social Security Administration improperly
calculated prescription drug premiums fit within mootness exception for claims that
were capable of repetition, yet evading review; if plaintiffs decided to change
health plans or opt into or out of Social Security premium withholding, the same
type of error could recur. Machado v. Leavitt, 542 F. Supp. 2d 185 (D. Mass.
2008). Issue was moot whether prejudgment remedy of attachment could be
granted against a political subdivision of the State, in a breach of contract and
unjust enrichment action brought against the Resources Recovery Authority; the
attachment order expired upon issuance of judgment against the Authority, and the
issue did not fall within the "capable of repetition, yet evading review" exception to
the mootness doctrine, because the Authority failed to demonstrate that the
substantial majority of such appeals evaded review. Town of New Hartford v.
Connecticut Resources Recovery Authority, 291 Conn. 502, 970 A.2d 578 (2009).
To qualify for appellate review under the exception to the mootness doctrine for
matters capable of repetition, yet evading review, an otherwise moot question must
meet three requirements: first, the challenged action, or the effect of the challenged
action, by its very nature must be of a limited duration so that there is a strong
likelihood that the substantial majority of cases raising a question about its validity
will become moot before appellate litigation can be concluded; second, there must
be a reasonable likelihood that the question presented in the pending case will arise
again in the future, and that it will affect either the same complaining party or a
reasonably identifiable group for whom that party can be said to act as surrogate;
and third, the question must have some public importance. Town of New Hartford
v. Connecticut Resources Recovery Authority, 291 Conn. 502, 970 A.2d 578
(2009). The public importance requirement for the "capable of repetition, yet
evading review" exception to the mootness doctrine was satisfied with respect to
husband's appeal from trial court's pre-dissolution order requiring him to attend a
parenting education program designed by the judicial branch; husband's appeal
raised the question whether the statutory requirement of attending such a program
infringed on the fundamental right of a parent to raise his or her children free from
unnecessary governmental interference. Dutkiewicz v. Dutkiewicz, 289 Conn. 362,
957 A.2d 821 (2008). Husband, as a pro se litigant, was an appropriate surrogate
for purposes of the requirement for the "capable of repetition, yet evading review"
exception to the mootness doctrine that the interests of the people likely to be
affected by the question presented in the appeal are adequately represented in the
current litigation, with respect to husband's appeal from trial court's pre-dissolution
order requiring him to attend a parenting education program designed by the
judicial branch. Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 957 A.2d 821 (2008).
Whether a party is an appropriate surrogate, for purposes of the surrogate
requirement for the "capable of repetition, yet evading review" exception to the
mootness doctrine, which requirement is that the interests of the people likely to be
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affected by the question presented in the appeal are adequately represented in the
current litigation, must be determined on a caseby-case basis. Dutkiewicz v.
Dutkiewicz, 289 Conn. 362, 957 A.2d 821 (2008). The surrogate requirement for
the "capable of repetition, yet evading review" exception to the mootness doctrine,
which is that the interests of the people likely to be affected by the question
presented in the appeal are adequately represented in the current litigation, is
necessary to ensure that judicial decisions which may affect the rights of others are
forged in hot controversy, with each side fairly and vigorously represented, but
such premise does not mandate a strict rule that the identical party must be likely to
be affected in the future. Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 957 A.2d 821
(2008). The question presented in husband's appeal was reasonably likely to recur,
for purposes of "capable of repetition, yet evading review" exception to the
mootness doctrine, with respect to husband's appeal from trial court's predissolution order requiring him to attend a parenting education program designed
by the judicial branch; by statute, an automatic order requiring participation in the
parenting education program
would be issued for any parent with minor children, in an action for dissolution of
a marriage or civil union, legal separation, or annulment, or for an application for
custody or visitation. Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 957 A.2d 821
(2008). Whether there is a reasonable likelihood that the question presented in the
pending appeal will arise again in the future, and that it will affect either the same
complaining party or a reasonably identifiable group for whom that party can be
said to act as surrogate, as element for "capable of repetition, yet evading review"
exception to the mootness doctrine, entails two separate inquiries: (1) whether the
question presented will recur at all, and (2) whether the interests of the people
likely to be affected by the question presented are adequately represented in the
current litigation. Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 957 A.2d 821 (2008).
Husband's appeal from trial court's pre-dissolution order requiring him to attend a
parenting education program designed by the judicial branch satisfied the
requirement for the "capable of repetition, yet evading review" exception to the
mootness doctrine that the challenged action was of a limited duration so that there
was a strong likelihood that the substantial majority of cases raising a question
about its validity would become moot before appellate litigation could be
concluded; the statutory structure of the parenting education requirement
established a time constraint by requiring parents to attend the parenting education
program within 60 days of the return day. Dutkiewicz v. Dutkiewicz, 289 Conn.
362, 957 A.2d 821 (2008). An appellant typically satisfies the requirement, for the
"capable of repetition, yet evading review" exception to the mootness doctrine, that
the challenged action is of a limited duration so that there is a strong likelihood that
the substantial majority of cases raising a question about its validity will become
moot before appellate litigation can be concluded, if there exists a functionally
insurmountable time constraint. Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 957
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A.2d 821 (2008). For an otherwise moot question to qualify for appellate review
under the "capable of repetition, yet evading review" exception to the mootness
doctrine, it must meet three requirements: (1) the challenged action, or the effect of
the challenged action, by its very nature must be of a limited duration, so that there
is a strong likelihood that the substantial majority of cases raising a question about
its validity will become moot before appellate litigation can be concluded; (2) there
must be a reasonable likelihood that the question presented in the pending case will
arise again in the future, and that it will affect either the same complaining party or
a reasonably identifiable group for whom that party can be said to act as surrogate;
and (3) the question must have some public importance. Dutkiewicz v. Dutkiewicz,
289 Conn. 362, 957 A.2d 821 (2008). The mootness doctrine does not preclude an
appellate court from addressing an otherwise moot issue that is capable of
repetition, yet evading review. Dutkiewicz v. Dutkiewicz, 289 Conn. 362, 957 A.2d
821 (2008). Under the recurrence exception to the mootness doctrine, an appellate
court may review moot controversies where there is a reasonable expectation that
the same complaining party would be subject to the same action again and the
action challenged would be of such short duration that it could not be fully litigated
prior to its cessation. Holly v. Montes, 231 Ill. 2d 153, 324 Ill. Dec. 481, 896
N.E.2d 267 (2008), cert. denied, 2009 WL 425400 (U.S. 2009). Exception to
mootness doctrine, for issues capable of repetition yet evading review, applies
when challenged action is too short in duration to be fully litigated before its
cessation or expiration, and there is reasonable expectation that same complaining
party will be subject to same action again. State ex rel. Sawyer v. Cendroski, 118
Ohio St. 3d 50, 2008-Ohio-1771, 885 N.E.2d 938 (2008). Two exceptions to the
mootness doctrine are recognized: (1) the appeal presents a question of broad
public interest, and (2) the challenged event is capable of repetition, yet evading
review. State ex rel. Oklahoma Firefighters Pension and Retirement System v. City
of Spencer, 2009 OK 73, 2009 WL 3103746 (Okla. 2009). If an otherwise moot
issue raised in an appeal is capable of repetition but generally will evade review,
the appellate court can take jurisdiction to address the question. Sloan v.
Department of Transp., 379 S.C. 160, 666 S.E.2d 236 (2008). [END OF
SUPPLEMENT] [FN1] Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S. Ct.
1249, 108 L. Ed. 2d 400 (1990); Rendell v. Rumsfeld, 484 F.3d 236 (3d Cir. 2007);
Cobb v. State Canvassing Board, 2006-NMSC-034, 140 N.M. 77, 140 P.3d 498
(2006); Sloan v. Department of Transp., 365 S.C. 299, 618 S.E.2d 876 (2005).
[FN2] Roe v. Wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147 (1973) (holding
modified on other grounds by, Planned Parenthood of Southeastern Pennsylvania v.
Casey, 505 U.S. 833, 112 S. Ct. 2791, 120 L. Ed. 2d 674 (1992)). [FN3] Murphy v.
Hunt, 455 U.S. 478, 102 S. Ct. 1181, 71 L. Ed. 2d 353 (1982); U.S. v. Quattrone,
402 F.3d 304 (2d Cir. 2005); Iowa Protection and Advocacy Services v. Tanager,
Inc., 427 F.3d 541, 63 Fed. R. Serv. 3d 489 (8th Cir. 2005). Doctrine did not apply
to state-court judge's appeal of federal-court preliminary injunction obtained by
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newspapers against judge's gag order in now-concluded tort action; judge's appeal
had been rendered moot by parties' inaction rather than nature of newspapers'
challenge, and since underlying action was civil, repetition was less likely and
review more likely due to predominance of gag orders in criminal trials and
relatively long duration of civil trials. Dow Jones & Co., Inc. v. Kaye, 256 F.3d
1251 (11th Cir. 2001). [FN4] Murphy v. Hunt, 455 U.S. 478, 102 S. Ct. 1181, 71 L.
Ed. 2d 353 (1982). [FN5] Honig v. Doe, 484 U.S. 305, 108 S. Ct. 592, 98 L. Ed. 2d
686, 1 A.D.D. 333, 43 Ed. Law Rep. 857 (1988). [FN6] Honig v. Doe, 484 U.S.
305, 108 S. Ct. 592, 98 L. Ed. 2d 686, 1 A.D.D. 333, 43 Ed. Law Rep. 857 (1988).
[FN7] Murphy v. Hunt, 455 U.S. 478, 102 S. Ct. 1181, 71 L. Ed. 2d 353 (1982) (it
was unlikely that all three of appellant's convictions would be overturned so as to
place appellant in a situation where he might seek bail again); Petition of Green
Mountain Power Corp., 148 Vt. 333, 532 A.2d 582 (1987). [FN8] Funbus Systems,
Inc. v. State of Cal. Public Utilities Com'n., 801 F.2d 1120, 8 Fed. R. Serv. 3d 822
(9th Cir. 1986). [FN9] Lewis v. Continental Bank Corp., 494 U.S. 472, 110 S. Ct.
1249, 108 L. Ed. 2d 400 (1990). [FN10] Sosna v. Iowa, 419 U.S. 393, 95 S. Ct.
553, 42 L. Ed. 2d 532, 19 Fed. R. Serv. 2d 925 (1975).
"VIII. Appellate Determinations B. Loss of Reviewability; Mootness 3. Mootness
b. Exceptions to Mootness Doctrine Topic Summary Correlation Table References
604. Public interest exception West's Key Number Digest West's Key Number
Digest, Courts k30 West's Key Number Digest, Federal Courts k12.1 An appellate
court may reach the merits of a technically moot issue if the issue falls within the
public interest exception to the mootness doctrine[FN1] in that the issue is likely to
re-cur,[FN2] application of the mootness doctrine may repeatedly frustrate review,
[FN3] and the issue is one of important public interest.[FN4] Observation: The
public interest exception to the mootness doctrine is distinct from the capable of
repetition, yet evading review exception in that the likelihood of recurrence upon
which the public interest exception depends need not involve the same plaintiff.
[FN5] CUMULATIVE SUPPLEMENT Cases: Case regarding what constituted
reportable activity "in support of a lobbying effort," and how broadly state lobbying
commission could interpret that phrase without running afoul of First Amendment,
was not moot, although commission ultimately abandoned its demand for additional
reporting by lobbyist on billboard after lobbyist filed complaint alleging that
commission's demand for reporting on expenses for non-lobbying advocacy activity
violated First Amendment. New York Civil Liberties Union v. Grandeau, 528 F.3d
122 (2d Cir. 2008). Unlike in the recurrence exception to the mootness doctrine for
appeals, the public interest exception to the mootness doctrine for appeals considers
potential recurrences to any entity, not only the complaining party. Holly v.
Montes, 231 Ill. 2d 153, 324 Ill. Dec. 481, 896 N.E.2d 267 (2008), cert. denied,
2009 WL 425400 (U.S. 2009). The criteria for application of the public interest
exception to the mootness doctrine are: (1) the question presented is of a public
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nature, (2) an authoritative resolution of the question is desirable to guide public

officers, and (3) the question is likely to recur. Cinkus v. Village of Stickney
Municipal Officers Electoral Bd., 228 Ill. 2d 200, 319 Ill. Dec. 887, 886 N.E.2d
1011 (2008), as modified, (Apr. 23, 2008). A clear showing of each criterion is
necessary for application of the public interest exception to the mootness doctrine.
Cinkus v. Village of Stickney Municipal Officers Electoral Bd., 228 Ill. 2d 200,
319 Ill. Dec. 887, 886 N.E.2d 1011 (2008), as modified, (Apr. 23, 2008). In
general, the Supreme Court declines to address the merits of moot claims unless the
matter is of public interest and capable of repetition. Central Indiana Podiatry, P.C.
v. Krueger, 882 N.E.2d 723 (Ind. 2008). In ascertaining whether an issue falls
within the public interest exception to the mootness doctrine, the Supreme Judicial
Court considers whether the issue is private or public; whether court officials need
an authoritative decision for future proceedings; and the likelihood of the issue
repeating itself in the future. In re Christopher H., 2011 ME 13, 12 A.3d 64 (Me.
2011). Mootness doctrine's public-interest exception did not apply to directors'
interlocutory appeal of preliminary injunction that prohibited directors from
contacting corporation's auditors until end of litigation or until corporation obtained
audited financial statements for certain year and filed document with Securities and
Exchange Commission (SEC), though directors raised defense based on First
Amendment right to petition; all but one order in preliminary injunction involved
director-auditor communications not connected with filing of suit and not affecting
a relationship with government, and action involved private litigation between
private parties seeking mostly private relief. Hamot v. Telos Corp., 185 Md. App.
352, 970 A.2d 942 (2009). Where the sole party with an interest in a proceeding
involving purely personal rights dies, not only are the issues in that proceeding
moot but there is no longer a party to continue the litigation and there is no one
with a justiciable interest who may take that party's place; therefore, the public
interest exception to mootness does not apply when an appeal abates because of the
death of the sole party with an interest in a proceeding that involves purely personal
rights of the deceased party. Sherman v. Neth, 283 Neb. 895, 2012 WL 1889261
(2012). There is an exception to the rule precluding review of moot issues for
questions of extreme public importance, which are capable of repetition but which
evade review. Arnold v. Lebel, 941 A.2d 813 (R.I. 2007). An appellate court may
decide otherwise moot questions of imperative and manifest urgency to establish a
rule for future conduct in matters of important public interest. Sloan v. Department
of Transp., 379 S.C. 160, 666 S.E.2d 236 (2008). In deciding whether an issue of
substantial public interest is involved in an action that had otherwise become moot,
the Supreme Court looks at three criteria: (1) the public or private nature of the
question presented; (2) the desirability of an authoritative determination that will
provide future guidance to public officers; and (3) the likelihood that the question
will recur. In re Silva, 166 Wash. 2d 133, 206 P.3d 1240 (2009). [END OF
SUPPLEMENT] [FN1] State of Alaska, Alaska Bd. of Fisheries v. Grunert, 139
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P.3d 1226 (Alaska 2006). [FN2] Cook v. City of Jacksonville, 823 So. 2d 86, 112
A.L.R.5th 701 (Fla. 2002); Junkins v. Branstad, 421 N.W.2d 130 (Iowa 1988).
[FN3] Big D Const. Corp. v. Court of Appeals for State of Ariz., Div. One, 163
Ariz. 560, 789 P.2d 1061, 89 A.L.R.4th 567 (1990); In re Riddlemoser, 317 Md.
496, 564 A.2d 812 (1989). [FN4] Taylor v. Gill Street Investments, 743 P.2d 345
(Alaska 1987); Independent Energy Producers Ass'n v. McPherson, 38 Cal. 4th
1020, 44 Cal. Rptr. 3d 644, 136 P.3d 178 (2006); Cook v. City of Jacksonville, 823
So. 2d 86, 112 A.L.R.5th 701 (Fla. 2002). [FN5] Taylor v. Gill Street Investments,
743 P.2d 345 (Alaska 1987)."
VIII. Appellate Determinations B. Loss of Reviewability; Mootness 3. Mootness b.
Exceptions to Mootness Doctrine Topic Summary Correlation Table References
605. Judgments which may have continuing effects or collateral consequences
West's Key Number Digest West's Key Number Digest, Courts k30 West's Key
Number Digest, Federal Courts k12.1 If a decision by the court below may have
effects on future events,[FN1] or collateral consequences for the parties,[FN2] an
appeal from that decision is not moot, even though the appellate court cannot give
effective relief in the present case.[FN3] Thus, a criminal case will be found moot
only if it is shown that there is no possibility that any collateral legal consequences
will be imposed on the basis of the challenged conviction.[FN4] Such
consequences may include the possible use of the judgment in future criminal cases
to impeach the defendant or discredit the defendant's reputation if placed in issue,
[FN5] the possible use of the conviction for sentencing purposes should the
defendant again be convicted of a crime,[FN6] and the possible use of the judgment
against the defendant in future civil cases.[FN7] This rule also applies where the
alleged collateral consequences flow not from a conviction but from a prison
disciplinary action affecting the terms of the prisoner's present or future restraint.
[FN8] However, the impact of possible consequences of the lower court's order
may be disregarded where the claim is too speculative.[FN9] CUMULATIVE
SUPPLEMENT Cases: When a defendant challenges his underlying conviction, the
Supreme Court has long presumed the existence of collateral consequences, such
that the defendant can continue his appeals after the expiration of his sentence; but
when a defendant challenges only an expired sentence, no such presumption
applies, and the defendant must bear the burden of identifying some ongoing
collateral consequence that is traceable to the challenged portion of the sentence
and likely to be redressed by a favorable judicial decision. U.S. v. Juvenile Male,
131 S. Ct. 2860 (2011). A defendant who is serving a term of supervised release
and challenges only his completed sentence of imprisonment must show collateral
consequences in order to raise a live case or controversy under Article III of the
Constitution such that a court will have jurisdiction over his appeal. U.S. v.
Jackson, 523 F.3d 234 (3d Cir. 2008). Defendant's challenge to 57-month sentence
was not rendered moot when sentence expired, where he had since been convicted
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for illegal reentry after deportation and was facing another sentence. U.S. v.
Almazan-Becerra, 465 Fed. Appx. 665 (9th Cir. 2012). Alien's deportation after
application for withholding of deportation was filed did not give rise to collateral
consequences redressable by petition, and thus, claim for withholding was moot;
alien's inadmissibility to United States was not a collateral consequence of Board of
Immigration Appeals' (BIA) denial of application for withholding, but rather was a
collateral consequence of BIA's unchallenged determination that alien had engaged
in terrorist activities. Kaur v. Holder, 561 F.3d 957 (9th Cir. 2009). The trial court,
on remand, is bound by the law of the case doctrine. Fernandes v. Rodriguez, 100
Conn. App. 703, 919 A.2d 516 (2007), certification denied, 282 Conn. 929, 926
A.2d 665 (2007). There are two exceptions to the law of the case doctrine; the first
applies when a higher reviewing court, subsequent to the lower reviewing court's
decision, issues a contrary ruling on the same issue, and the second exception
allows the reviewing court to depart from the doctrine of law of the case if the court
finds that its prior decision was palpably erroneous, but only when the court
remanded the case for a new trial on all issues. Alwin v. Village of Wheeling, 371
Ill. App. 3d 898, 309 Ill. Dec. 656, 864 N.E.2d 897 (1st Dist. 2007), appeal denied,
224 Ill. 2d 571, 871 N.E.2d 54 (2007). Legality of defendant's sentence could not
be considered moot where he was serving two consecutive indeterminate sentences
for two convictions with an aggregate maximum term of life in prison. People v.
Worth, 83 A.D.3d 1547, 923 N.Y.S.2d 810 (4th Dep't 2011). Before determining
whether an appeal is moot when the defendant has completed his sentence, it is
necessary to determine whether collateral legal consequences of an adverse nature
may result. State v. Black, 677 S.E.2d 199 (N.C. Ct. App. 2009). When the terms of
a judgment below have been fully carried out, if collateral legal consequences of an
adverse nature can reasonably be expected to result therefrom, then the issue is not
moot and the appeal has continued legal significance. State v. Black, 677 S.E.2d
199 (N.C. Ct. App. 2009). If a decision by the trial court may affect future events,
or have collateral consequences for the parties, an appeal from that decision is not
moot, even though the appellate court cannot give effective relief in the present
case. Sloan v. Department of Transp., 379 S.C. 160, 666 S.E.2d 236 (2008). [END
OF SUPPLEMENT] [FN1] Storer v. Brown, 415 U.S. 724, 94 S. Ct. 1274, 39 L.
Ed. 2d 714 (1974). [FN2] Roark v. Roark, 551 N.E.2d 865 (Ind. Ct. App. 3d Dist.
1990); Mead v. Batchlor, 435 Mich. 480, 460 N.W.2d 493, 32 A.L.R.5th 737
(1990). [FN3] Storer v. Brown, 415 U.S. 724, 94 S. Ct. 1274, 39 L. Ed. 2d 714
(1974). Thus, even though a disputed election is over and a candidate who has sued
to obtain a ballot position was permitted to run, an appeal by the election authorities
is not moot, since a decision by the court below will affect the conduct of future
elections. Mandel v. Bradley, 432 U.S. 173, 97 S. Ct. 2238, 53 L. Ed. 2d 199
(1977). [FN4] Minnesota v. Dickerson, 508 U.S. 366, 113 S. Ct. 2130, 124 L. Ed.
2d 334 (1993); Adams v. Killeen, 115 Idaho 1034, 772 P.2d 241 (Ct. App. 1989).
Defendant who involuntarily served a sentence had an interest in avoiding the
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collateral consequences of a conviction, and thus, his appeal from disorderly

conduct conviction was not moot. State v. York, 1999 ME 100, 732 A.2d 859 (Me.
1999). [FN5] Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917
(1968); Roark v. Roark, 551 N.E.2d 865 (Ind. Ct. App. 3d Dist. 1990). [FN6]
Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); State v.
Mechling, 219 W. Va. 366, 633 S.E.2d 311 (2006). [FN7] Roark v. Roark, 551
N.E.2d 865 (Ind. Ct. App. 3d Dist. 1990). [FN8] Adams v. Killeen, 115 Idaho
1034, 772 P.2d 241 (Ct. App. 1989). [FN9] Sandidge v. State of Wash., 813 F.2d
1025 (9th Cir. 1987), holding that a National Guard officer's appeal in his suit
seeking revision of a job performance evaluation was moot where the plaintiff was
no longer in the National Guard and his claim that the evaluation might adversely
affect his future job search was too speculative.
VIII. Appellate Determinations B. Loss of Reviewability; Mootness 3. Mootness c.
Circumstances Which May Render an Appeal Moot Topic Summary Correlation
Table References 615. Completion of activity sought to be enjoined West's Key
Number Digest West's Key Number Digest, Courts k30 West's Key Number
Digest, Federal Courts k12.1 A defendant usually cannot by its own voluntary
conduct moot a case and deprive a court of jurisdiction.[FN1] Thus, in an
injunction proceeding, the mere fact that a defendant with notice completes the acts
sought to be enjoined does not necessarily moot an appeal, since the court, in this
situation, may by mandatory injunction restore the status quo.[FN2] The following
factors play a predominant role in resolving a mootness claim when a court's equity
jurisdiction is invoked with respect to a claim for permanent injunctive relief
against the construction of a facility that has already been completed: (1) the
relative culpability or blamelessness of the defendant in completing the project
against which a permanent injunction is now sought; (2) whether the plaintiff
sought some form of temporary or preliminary injunctive relief in order to preserve
the status quo during the pendency of the litigation; and (3) the varied interests
likely to be affected and the potential hardships likely to be caused by entertaining
a claim for a permanent injunction with respect to the construction of the facility
already completed.[FN3] If the granting of permanent injunctive relief would be
manifestly inappropriate and inequitable under the total circumstances of the case,
the injunctive claim may be dismissed as moot.[FN4] CUMULATIVE
SUPPLEMENT Cases: Commonwealth's argument on appeal that trial court erred
in ordering DNA testing of evidence pursuant to defendant's postconviction petition
was moot to extent that testing had already been done. Moore v. Com., 357 S.W.3d
470 (Ky. 2011), as modified on denial of reh'g, (Nov. 23, 2011). [END OF
SUPPLEMENT] [FN1] Pointe Resorts, Inc. v. Culbertson, 158 Ariz. 137, 761 P.2d
1041 (1988), holding that an appeal which challenged a municipality's authority to
enter into a transaction with a developer was not rendered moot merely because the
transaction had been completed and the development in controversy had been
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constructed. [FN2] Garcia v. Lawn, 805 F.2d 1400 (9th Cir. 1986). [FN3] Zoning
Bd of Adjustment of Garfield County v. DeVilbiss, 729 P.2d 353 (Colo. 1986).
Completion of highway project rendered moot plaintiffs' case seeking to enjoin
project for alleged violation of both federal and state environmental policy acts.
Neighborhood Transp. Network, Inc. v. Pena, 42 F.3d 1169 (8th Cir. 1994). [FN4]
Zoning Bd of Adjustment of Garfield County v. DeVilbiss, 729 P.2d 353 (Colo.
1986).
Because mootness implicates subject matter jurisdiction, it presents a question of
law over which appellate review is plenary. Town of New Hartford v. Connecticut
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Defendant's probation violation could be used as an aggravating factor in a

subsequent sentencing hearing, and thus, his appeal from superior court's judgment
revoking his probation was not moot, even though he had already completed his
sentence. State v. Black, 677 S.E.2d 199 (N.C. Ct. App. 2009).
IX. Decision on Appeal and Subsequent Procedures A. Dismissal of Appeal 1.
Dismissal by Court b. Particular Grounds for Dismissal Topic Summary
Correlation Table References 806. Absence of case or controversy; mootness
West's Key Number Digest West's Key Number Digest, Appeal and Error k781,
792 West's Key Number Digest, Criminal Law k1131(4) West's Key Number
Digest, Federal Courts k723.1, 724 Forms Am. Jur. Pleading and Practice Forms,
Appeal and Error 767 (NoticeMotion to dismiss appealIssues presently
moot) Where an event occurs during the pendency of an appeal rendering the case
moot, the appeal must be dismissed.[FN1] A supreme court does not render
advisory opinions, and it will dismiss an appeal if the issues become moot or so
academic that no actual controversy is left to be decided.[FN2] The test for
mootness of an appeal is whether the appellate court can give the appellant any
effective or practical relief in the event that it decides the matter on the merits in the
appellant's favor.[FN3] The mootness doctrine does not require that the exact legal
remedy sought below remain available, only that the court can grant some effective
relief.[FN4] The enactment of legislation can moot an appeal even though there
may have been a viable issue in the lower court, and this includes legislation
specifically eliminating the source of the original dispute or changing the law
pertaining to a particular lawsuit.[FN5] Where a legislation passing constitutional
muster is enacted while a case is pending on appeal that makes it impossible for the
court to grant any effectual relief, the appeal must be dismissed as moot.[FN6] A
case also becomes moot for lack of a live case or controversy if a new law is
enacted during the pendency of an appeal and resolves the parties' dispute.[FN7]
Observation: Because the question of mootness is jurisdictional in nature, it may be
raised by an appellate court sua sponte.[FN8] Indeed, an appellate court has an
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affirmative or independent obligation to consider the jurisdictional issue of whether

the controversy has been mooted by intervening events sua sponte.[FN9] Whether
an appeal is moot is a jurisdictional issue because it implicates the constitutional
requirement of a live case or controversy.[FN10] CUMULATIVE SUPPLEMENT
Cases: A case becomes moot only when it is impossible for a court to grant any
effectual relief whatever to the prevailing party. Knox v. Service Employees Intern.
Union, Local 1000, 132 S. Ct. 2277 (2012). If a case is moot, a federal court has no
constitutional authority under Article III to resolve the issues that it presents.
U.S.C.A. Const. Art. 3, 2, cl. 1. Murray v. Fidelity Nat. Financial, Inc., 594 F.3d
419 (5th Cir. 2010). There was no live, concrete controversy between credit card
issuer and consumer, who brought action against issuer, on behalf of herself and all
others similarly situated, after consumer accepted issuer's offer of judgment with
respect to consumer's claim that issuer's unsolicited issuance of credit cards
violated TILA, and therefore consumer could not appeal district court's denial of
class certification on the TILA claim, even though consumer accepted issuer's offer
of judgment on the understanding that the offer and her acceptance preserved her
right to appeal all of the district court's adverse order; nowhere, did consumer
indicate that, given the resolution of her personal substantive claims, she retained a
concrete interest in the resolution of the class certification issue, and consumer
received in her settlement compensation both her costs of the action and her
reasonable attorney's fees. Muro v. Target Corp., 580 F.3d 485, 74 Fed. R. Serv. 3d
502 (7th Cir. 2009). Generally, when a party settles all of his personal claims before
appeal, an appeals court must dismiss the appeal as moot unless that party retains a
personal stake in the case that satisfies the requirements of Article III. U.S.C.A.
Const. Art. 3, 2, cl. 1. Sanford v. Member-Works, Inc., 625 F.3d 550 (9th Cir.
2010). Where the complexion of the case has entirely changed while appeal is
pending, as would render appeal moot, counsel for both parties have an obligation
to so inform the court; that is so even if a party believes it has a basis for arguing
that the issue should still be decided. Mansourian v. Regents of University of
California, 594 F.3d 1095 (9th Cir. 2010). When, during the pendency of an appeal,
events have occurred that preclude an appellate court from granting any practical
relief through its disposition of the merits, the appeal has become moot. Dutkiewicz
v. Dutkiewicz, 289 Conn. 362, 957 A.2d 821 (2008). Investors' vote to remove
limited liability company's (LLC) manager did not render moot LLC's appeal of
temporary injunction against interfering with voting; manager refused to step down,
and the injunction continued to prevent LLC and manager from challenging the
vote. Hampton Island Founders, LLC v. Liberty Capital, LLC, 283 Ga. 289, 658
S.E.2d 619 (2008). After verdict and judgment, it is too late to review a judgment
denying a summary judgment, for that judgment becomes moot when the court
reviews the evidence upon the trial of the case. Certain Underwriters at Lloyd's of
London v. Rucker Const., Inc., 285 Ga. App. 844, 648 S.E.2d 170 (2007). A case
on appeal becomes moot where the issues presented in the trial court no longer
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exist because events subsequent to the filing of the appeal render it impossible for
the reviewing court to grant the complaining party effectual relief. Cinkus v.
Village of Stickney Municipal Officers Electoral Bd., 228 Ill. 2d 200, 319 Ill. Dec.
887, 886 N.E.2d 1011 (2008), as modified, (Apr. 23, 2008). Appellate courts do not
render advisory opinions nor decide non-existent issues. Cole v. Carnahan, 272
S.W.3d 392 (Mo. Ct. App. W.D. 2008), transfer denied, (Dec. 23, 2008) and
transfer denied, (Jan. 27, 2009). A case is moot and generally should be dismissed
if a judgment rendered has no practical effect upon an existing controversy or when
an event occurs that makes a court's decision unnecessary or makes granting
effectual relief by the court impossible. Cole v. Carnahan, 272 S.W.3d 392 (Mo. Ct.
App. W.D. 2008), transfer denied, (Dec. 23, 2008) and transfer denied, (Jan. 27,
2009). Defendant's probation violation could be used as an aggravating factor in a
subsequent sentencing hearing, and thus, his appeal from superior court's judgment
revoking his probation was not moot, even though he had already completed his
sentence. State v. Black, 677 S.E.2d 199 (N.C. Ct. App. 2009). Where, after an
appeal has been commenced, conditions arise which preclude an appellate decision
from affording any effective relief, the appeal will be dismissed for mootness. State
ex rel. Oklahoma Firefighters Pension and Retirement System v. City of Spencer,
2009 OK 73, 2009 WL 3103746 (Okla. 2009). [END OF SUPPLEMENT] [FN1]
New Hampshire Motor Transport Ass'n v. Rowe, 448 F.3d 66 (1st Cir. 2006),
petition for cert. filed, 75 U.S.L.W. 3197 (U.S. Aug. 16, 2006); Rendell v.
Rumsfeld, 484 F.3d 236 (3d Cir. 2007); Willy v. Administrative Review Bd., 423
F.3d 483 (5th Cir. 2005); Nader v. Land, 433 F.3d 496 (6th Cir. 2006); Lupiani v.
Wal-Mart Stores, Inc., 435 F.3d 842 (8th Cir. 2006); Center for Biological
Diversity v. Lohn, 483 F.3d 984 (9th Cir. 2007); A.G. v. Department of Children
and Family Services, 932 So. 2d 311 (Fla. Dist. Ct. App. 2d Dist. 2006); Mutual
Service Cas. Ins. Co. v. Midway Massage, Inc., 695 N.W.2d 138 (Minn. Ct. App.
2005), review denied, (June 14, 2005); State ex rel. Acoff v. City of University
City, 180 S.W.3d 83 (Mo. Ct. App. E.D. 2005); Najera v. Chesapeake Div. of
Social Services, 48 Va. App. 237, 629 S.E.2d 721 (2006). [FN2] State v. Hansen,
2006 ND 139, 717 N.W.2d 541 (N.D. 2006). [FN3] Willy v. Administrative
Review Bd., 423 F.3d 483 (5th Cir. 2005); Nader v. Land, 433 F.3d 496 (6th Cir.
2006); Amerco v. N.L.R.B., 458 F.3d 883 (9th Cir. 2006); Prier v. Steed, 456 F.3d
1209 (10th Cir. 2006); Beethoven.com LLC v. Librarian of Congress, 394 F.3d 939
(D.C. Cir. 2005), as amended, (Feb. 4, 2005); We CareSanta Paula v. Herrera,
139 Cal. App. 4th 387, 42 Cal. Rptr. 3d 577 (2d Dist. 2006); Sullivan v. McDonald,
281 Conn. 122, 913 A.2d 403 (2007); A.G. v. Department of Children and Family
Services, 932 So. 2d 311 (Fla. Dist. Ct. App. 2d Dist. 2006); Lo v. Provena
Covenant Medical Center, 356 Ill. App. 3d 538, 292 Ill. Dec. 451, 826 N.E.2d 592
(4th Dist. 2005); Najera v. Chesapeake Div. of Social Services, 48 Va. App. 237,
629 S.E.2d 721 (2006). [FN4] Barton v. Albertson's, Inc., 122 Fed. Appx. 870 (9th
Cir. 2004). [FN5] Shawnee Tribe v. U.S., 423 F.3d 1204 (10th Cir. 2005). [FN6]
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Consejo de Desarrollo Economico de Mexicali, A.C. v. U.S., 482 F.3d 1157 (9th
Cir. 2007). [FN7] Qwest Corp. v. City of Surprise, 434 F.3d 1176 (9th Cir. 2006).
[FN8] U.S. v. Lares-Meraz, 452 F.3d 352 (5th Cir. 2006); Colorado Off Highway
Vehicle Coalition v. U.S. Forest Service, 357 F.3d 1130 (10th Cir. 2004); National
Advertising Co. v. City of Miami, 402 F.3d 1329 (11th Cir. 2005), cert. denied, 126
S. Ct. 1318, 164 L. Ed. 2d 48 (U.S. 2006). [FN9] American Civil Liberties Union
of Nevada v. Lomax, 471 F.3d 1010 (9th Cir. 2006); Moongate Water Co., Inc. v.
Dona Ana Mutual Domestic Water Consumers Ass'n, 420 F.3d 1082 (10th Cir.
2005). [FN10] U.S. v. Lares-Meraz, 452 F.3d 352 (5th Cir. 2006) (referring to U.S.
Const. Art. III, 2, cl. 1); BankWest, Inc. v. Baker, 446 F.3d 1358 (11th Cir. 2006)
(an appellate court does not have jurisdiction under Article III to decide questions
which have become moot by reason of intervening events).
IX. Decision on Appeal and Subsequent Procedures A. Dismissal of Appeal 1.
Dismissal by Court b. Particular Grounds for Dismissal Topic Summary
Correlation Table References 807. Lack of appellate jurisdiction West's Key
Number Digest West's Key Number Digest, Appeal and Error k782, 792 West's
Key Number Digest, Criminal Law k1131(4) West's Key Number Digest, Federal
Courts k725 Forms Am. Jur. Pleading and Practice Forms, Appeal and Error 757
(NoticeMotion to dismiss appealLack of service of proposed case) Am. Jur.
Pleading and Practice Forms, Appeal and Error 760 (AffidavitIn support of
motion to dismiss appealLack of service) Am. Jur. Pleading and Practice Forms,
Appeal and Error 764 (MotionTo dismiss appealImproper party appellant)
Am. Jur. Pleading and Practice Forms, Appeal and Error 765 (MotionTo
dismiss appealImproper party appellantLack of service) Am. Jur. Pleading and
Practice Forms, Appeal and Error 766 (MotionTo dismiss appealJudgment
appealed from not final) Am. Jur. Pleading and Practice Forms, Appeal and Error
777 (OrderDismissing appealFailure to serve proposed case) An appellate
court has a duty to consider its jurisdiction over an appeal and dismiss the appeal if
jurisdiction is lacking.[FN1] An appellate court must dismiss an appeal even where
the point is raised by neither party, being instead raised on the court's own initiative
or motion.[FN2] A court's jurisdiction is never presumed, and if the record does not
affirmatively demonstrate the appellate court's jurisdiction, the appeal must be
dismissed.[FN3] An appeal failing to satisfy the jurisdictional minimum amount in
controversy must also be dismissed.[FN4] If the trial court lacks jurisdiction, the
appellate court has jurisdiction only to vacate the judgment of the trial court and
dismiss the cause.[FN5] Indeed, where a trial court enters judgment without
jurisdiction, the judgment is void and the appellate court acquires jurisdiction only
to determine the invalidity of the judgment and to dismiss the appeal.[FN6]
However, the view has been expressed that where a party alleges that the trial court
lacks jurisdiction to consider a cause of action, it is the duty of the appellate court
to examine the case and determine whether the allegation is meritorious, and if the
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appellate court finds that the trial court did lack jurisdiction, the appellate court
may be required to vacate the trial court's judgment with regard to the cause of
action but is not required to dismiss the appeal for lack of jurisdiction before the
appellate court.[FN7] The question whether an order or judgment is final for appeal
purposes is a jurisdictional question, and an appellate court, on a determination that
the order or judgment is not final, has a duty to dismiss the appeal,[FN8] and if the
appellee has not moved for a dismissal, then the court should dismiss the appeal on
its own motion.[FN9] The failure to comply with the rule requiring certification of
final judgment in appealing from a summary judgment that does not dispose of all
the parties and claims deprives the appellate court of jurisdiction, and the appeal
will be dismissed.[FN10] An appellate court lacks jurisdiction over a defendant
whom the plaintiffs dismissed from litigation before trial, requiring dismissal of the
appeal pertaining to such defendant.[FN11] The United States Supreme Court may
also dismiss an appeal for lack of jurisdiction where the appellants lack authority to
pursue the appeal as individuals and are no longer parties to the action.[FN12]
Observation: Where an intermediate appeal is dismissed because a final judgment
has been entered, the issues in the intermediate appeal may be considered on the
appeal from the final judg-ment.[FN13] CUMULATIVE SUPPLEMENT Cases:
When it is determined that an order appealed from is not a final judgment, it is the
duty of the appellate court to dismiss the appeal ex mero motu. Ex parte Green, 58
So. 3d 135 (Ala. 2010). Since a void judgment will not support an appeal, it follows
that the appeal is due to be dismissed. Pierce v. American General Finance, Inc.,
991 So. 2d 212 (Ala. 2008). A dismissal on the merits cannot be affirmed on appeal
if the trial court did not have jurisdiction over the subject matter of the action;
instead, the judgment of dismissal must be vacated. Lockwood v. Sheppard, Mullin,
Richter & Hampton, 173 Cal. App. 4th 675, 93 Cal. Rptr. 3d 220 (2d Dist. 2009).
Although inventor brought his action against attorney and law firm in state court,
he was entitled to challenge state court's subject matter jurisdiction over action on
appeal, claiming that the matter was within the exclusive jurisdiction of federal
courts; inventor's case was dismissed on the merits, and thus, if he was correct that
his claims should have been dismissed for lack of jurisdiction, he was prejudiced by
the dismissal on the merits due to the res judicata effect such a dismissal had, and
the appellate court would have to vacate that dismissal. Lockwood v. Sheppard,
Mullin, Richter & Hampton, 173 Cal. App. 4th 675, 93 Cal. Rptr. 3d 220 (2d Dist.
2009). The appellate court has a duty to dismiss, even on its own initiative, any
appeal that it lacks jurisdiction to hear. Lewis v. Slack, 110 Conn. App. 641, 955
A.2d 620 (2008), certification denied, 289 Conn. 953, 961 A.2d 417 (2008). If an
appellate court does not have jurisdiction, it has a duty to dismiss an appeal.
Williams v. Lawton, 288 Kan. 768, 207 P.3d 1027 (2009). An appellate court has a
duty to question jurisdiction on its own initiative. State v. Johnson, 286 Kan. 824,
190 P.3d 207 (2008). If the record shows there is no jurisdiction for the appeal, the
appeal must be dismissed, and to make this determination, appellate courts must
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examine the governing statutes because the right to appeal is statutory; neither the
United States nor Kansas Constitutions grant such a right. State v. Johnson, 286
Kan. 824, 190 P.3d 207 (2008). The right to appeal is purely statutory, and an
appellate court has a duty to question jurisdiction on its own initiative. State v.
Scoville, 286 Kan. 800, 188 P.3d 959 (2008). If the record reveals that jurisdiction
does not exist, an appeal must be dismissed. State v. Scoville, 286 Kan. 800, 188
P.3d 959 (2008). Whether an appeal is subject to dismissal because the decision
appealed from is advisory in nature may be raised by the Court on its own motion.
Farrell v. City of Auburn, 2010 ME 88, 3 A.3d 385 (Me. 2010). Motion by health
care providers to seal documents shielded by protective order in the event that
Court of Appeals determined review of order was warranted would be dismissed as
moot on patient's appeal from judgment for providers in negligence action, where
Court of Appeals determined that it lacked jurisdiction to review protective order.
Yorke v. Novant Health, Inc., 666 S.E.2d 127 (N.C. Ct. App. 2008). The Supreme
Court generally dismisses an appeal as of right only when the court lacks subject
matter jurisdiction to review the appeal, the appeal is barred by statute, or the
appeal has been rendered moot. Rosen v. Celebrezze, 117 Ohio St. 3d 241, 2008Ohio-853, 883 N.E.2d 420 (2008). Landowner could not cure jurisdictional defect
in his negligence claims against Texas Parks and Wildlife Department (TPWD) and
TPWD employees, and thus claims would be dismissed on appeal, rather than
remanded to allow landowner to amend, given finding that landowner's allegations,
arising from damage to premises leased to TPWD for boat storage, did not relate to
the active use or operation of a motor vehicle or motor-driven equipment, as would
support a finding of waiver of sovereign immunity, but to the condition of state
property. Texas Parks and Wildlife Dept. v. E.E. Lowrey Realty, Ltd., 235 S.W.3d
692 (Tex. 2007). An appellate court lacks jurisdiction over an appeal that is not
taken from a final order or judgment; in such circumstances, the appellate court
must refuse to decide those cases not properly before it. DFI Properties LLC v. GR
2 Enterprises LLC, 2010 UT 61, 242 P.3d 781 (Utah 2010). [END OF
SUPPLEMENT] [FN1] Smook v. Minnehaha County, 457 F.3d 806 (8th Cir.
2006), cert. denied, 127 S. Ct. 1885, 167 L. Ed. 2d 386 (U.S. 2007); Holmes v.
Johnson, 2007 WL 867025 (Ala. Civ. App. 2007); Kim v. Mansoori, 214 Ariz. 457,
153 P.3d 1086 (Ct. App. Div. 2 2007); In re Conservatorship of Ben C., 40 Cal. 4th
529, 53 Cal. Rptr. 3d 856, 150 P.3d 738 (2007), petition for cert. filed (U.S. May 3,
2007); Pritchard v. Pritchard, 281 Conn. 262, 914 A.2d 1025 (2007); St. Elizabeth's
Hosp. v. Workers' Compensation Com'n, 371 Ill. App. 3d 882, 309 Ill. Dec. 400,
864 N.E.2d 266 (5th Dist. 2007); Flores Rentals, L.L.C. v. Flores, 153 P.3d 523
(Kan. 2007), as modified, (May 11, 2007); State ex rel. Stude v. Jackson, 213
S.W.3d 208 (Mo. Ct. App. E.D. 2007); Texas Dept. of Public Safety v. Styron,
2007 WL 178178 (Tex. App. Houston 1st Dist. 2007); In re Adoption of JRH, 2006
WY 89, 138 P.3d 683 (Wyo. 2006). Generally, as to jurisdiction of appellate courts,
see 1 to 76. [FN2] Holmes v. Johnson, 2007 WL 867025 (Ala. Civ. App. 2007);
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In re Conservatorship of Ben C., 40 Cal. 4th 529, 53 Cal. Rptr. 3d 856, 150 P.3d
738 (2007), petition for cert. filed (U.S. May 3, 2007); Pritchard v. Pritchard, 281
Conn. 262, 914 A.2d 1025 (2007); Leslie v. Estate of Tavares, 109 Haw. 8, 122
P.3d 803 (2005), reconsideration granted in part, 109 Haw. 423, 127 P.3d 83
(2005); In re Marriage of Mardjetko, 369 Ill. App. 3d 934, 308 Ill. Dec. 289, 861
N.E.2d 354 (2d Dist. 2007); Moser v. Moser, 838 N.E.2d 532 (Ind. Ct. App. 2005),
transfer denied, 855 N.E.2d 1008 (Ind. 2006); Gates v. Goodyear, 155 P.3d 1196
(Kan. Ct. App. 2007); Anne Arundel County v. Cambridge Commons L.P., 167
Md. App. 219, 892 A.2d 593 (2005), cert. denied, 393 Md. 242, 900 A.2d 749
(2006); State ex rel. Stude v. Jackson,
213 S.W.3d 208 (Mo. Ct. App. E.D. 2007); Manning v. Manning, 2006 ND 67,
711 N.W.2d 149 (N.D. 2006). [FN3] Zuniga v. Navarro & Associates, P.C., 158
S.W.3d 663 (Tex. App. Corpus Christi 2005), reh'g overruled, (Apr. 7, 2005) and
review denied, (Oct. 14, 2005). [FN4] Rick v. Sprague, 706 N.W.2d 717 (Iowa
2005). [FN5] Allen v. Day, 213 S.W.3d 244 (Tenn. Ct. App. 2006), appeal denied,
(Dec. 27, 2006); Kerr v. Harris County, 177 S.W.3d 290 (Tex. App. Houston 1st
Dist. 2005). [FN6] Richardson v. Jallen Investment Group, Inc., 140 S.W.3d 112
(Mo. Ct. App. E.D. 2004). [FN7] Brown v. Duncan, 361 Ill. App. 3d 125, 296 Ill.
Dec. 663, 836 N.E.2d 78, 202 Ed. Law Rep. 735 (1st Dist. 2005). [FN8]
Blankenship v. Blankenship, 2007 WL 548799 (Ala. Civ. App. 2007); Vivid Video,
Inc. v. Playboy Entertainment Group, Inc., 147 Cal. App. 4th 434, 54 Cal. Rptr. 3d
232 (2d Dist. 2007); Gorelick v. Montanaro, 94 Conn. App. 14, 891 A.2d 41
(2006); Common Cause of Kentucky v. Com., 143 S.W.3d 634 (Ky. Ct. App.
2004); Bell v. American Intern. Group, 950 So. 2d 164 (La. Ct. App. 3d Cir. 2007);
In re Marriage of Rhoads, 209 S.W.3d 24 (Mo. Ct. App. S.D. 2006); Hallie
Management Co. v. Perry, 272 Neb. 81, 718 N.W.2d 531 (2006); Burns v. Morgan,
165 Ohio App. 3d 694, 2006-Ohio-1213, 847 N.E.2d 1288 (4th Dist. Highland
County 2006); Southwest Const. Receivables, Ltd. v. Regions Bank, 162 S.W.3d
859 (Tex. App. Texarkana 2005), review denied, (2 pets.)(June 9, 2006) (except for
statutory exceptions, if the judgment from which the party has appealed does not
dispose of all pending parties and claims, then the judgment is deemed to be
interlocutory and the court of appeals should either abate the appeal or dismiss it
for want of jurisdiction). [FN9] G.C. v. J.G., 2007 WL 80462 (Ala. Civ. App.
2007); Atkinson v. Atkinson, 167 Ohio App. 3d 704, 2006-Ohio-3676, 856 N.E.2d
1023 (4th Dist. Washington County 2006). [FN10] Lee v. Martindale, 363 Ark.
249, 213 S.W.3d 1 (2005). [FN11] Conway v. Dravenstott, 2006-Ohio-4840, 2006
WL 2664241 (Ohio Ct. App. 3d Dist. Crawford County 2006). [FN12] Karcher v.
May, 484 U.S. 72, 108 S. Ct. 388, 98 L. Ed. 2d 327, 42 Ed. Law Rep. 1062 (1987).
[FN13] Legendre v. Siqing Bao, 29 A.D.3d 645, 816 N.Y.S.2d 495 (2d Dep't
2006); Lewin v. County of Suffolk, 18 A.D.3d 621, 795 N.Y.S.2d 659 (2d Dep't
2005).
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IX. Decision on Appeal and Subsequent Procedures A. Dismissal of Appeal 1.

Dismissal by Court b. Particular Grounds for Dismissal Topic Summary
Correlation Table References 809. Procedural errors West's Key Number Digest
West's Key Number Digest, Appeal and Error k783 to 785 West's Key Number
Digest, Criminal Law k1131(4) West's Key Number Digest, Federal Courts k722
Forms Am. Jur. Pleading and Practice Forms, Appeal and Error 761 to 763
(MotionTo dismiss appealNot taken within prescribed time) Am. Jur. Pleading
and Practice Forms, Appeal and Error 768 (MotionTo dismiss appealFailure
to file undertaking) Am. Jur. Pleading and Practice Forms, Appeal and Error 769
(MotionTo dismiss appealAppeal bond not filed within time) Am. Jur.
Pleading and Practice Forms, Appeal and Error 770 (MotionTo dismiss appeal
Failure to file filing fee) Am. Jur. Pleading and Practice Forms, Appeal and Error
771 (MotionTo dismiss appealFailure to file record within time) Am. Jur.
Pleading and Practice Forms, Appeal and Error 772 (MotionTo dismiss appeal
Failure to serve statement of case) Am. Jur. Pleading and Practice Forms, Appeal
and Error 773 (MotionTo dismiss appealFailure to file brief) Am. Jur.
Pleading and Practice Forms, Appeal and Error 774 (MotionTo dismiss appeal
Record insufficient to permit consideration of claimed errors) While the
dismissal of an appeal for failure to comply with procedural rules is not favored,
[FN1] and it is preferred that an appellate court address the merits of an appeal
whenever possible,[FN2] an appellate court generally has the power to dismiss an
appeal for failing to comply with the jurisdiction's rules of appellate procedure,
[FN3] even where a party is proceeding pro se.[FN4] Thus, an appellant has a duty
to perfect its appeal in the manner provided by statute, and absent such compliance,
the reviewing court lacks jurisdiction to hear the appeal.[FN5] More particularly,
the jurisdiction of an appellate court may depend on the timely filing of a notice of
appeal, and where such is lacking, the court's only permissible action is to dismiss
the appeal.[FN6] However, compliance with procedural rules may be viewed as not
relating to the court's jurisdiction,[FN7] so that an appellate court may have the
discretion to overlook procedural variations, which might warrant the dismissal of
the appeal when necessary to avoid harsh results[FN8] or where there is no
evidence of prejudice[FN9] Thus, the appellate court retains the discretion to
decide appeals, notwithstanding failure to comply with the rules of appellate
procedure, when it prejudices neither the respondent nor the court's review, and
when the issues presented are important.[FN10] Indeed, under the Federal Rules of
Appellate Procedure, while a failure to file a notice of appeal affects the validity of
the appeal, the failure to take any other procedural step is only a ground for such
action as the court of appeals deems appropriate, which may include the dismissal
of the appeal.[FN11] Also, procedural violations by the appellants during their
appeal do not warrant dismissal of the appeal, where the appeal is meritorious, and
the procedural violations are not so egregious as to prevent the appellee from
meaningfully responding to the appeal.[FN12] On the other hand, numerous and
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egregious procedural violations may warrant the dismissal of an appeal, and

additional consideration favoring dismissal may include the failure of the appellant
to cure procedural defects and a non-meritorious appeal.[FN13] In other words,
flagrant violations of appellate rules may result in the dismissal of the appeal.
[FN14] Thus, the dismissal of the appeal, rather than remand for hearing on the
record, is deemed appropriate, where there is failure to file a complete
record[FN15] or where the record was not sufficiently developed to allow for a
meaningful direct review of the appellant's claim[FN16] or where it is uncertain
whether the transcript of trial proceedings has been made.[FN17] Likewise, the
failure to meet the requirements that an appellant's brief contain a fair and concise
statement of facts relevant to the questions presented for determination on appeal
has resulted in the dismissal of an appeal.[FN18] Similarly, a defendant's appeal
may be dismissed because of deficiencies in the defendant's appellate brief where
the defendant's statement of facts, the points relied on, and the argument are not in
compliance with the rule governing appellate briefs.[FN19] Also, a criminal
defendant pursuing his or her own appeal who fails to file enumerations of errors or
brief after being ordered by the appellate court to do so, may have the appeal
dismissed.[FN20] Moreover, the failure to timely file transcripts or statements of
error in criminal cases may result in the dismissal of an appeal.[FN21] Dismissal
may also be appropriate where there is failure to secure or pay an appeal bond that
includes prospective administrative costs and attorney's fees,[FN22] where there is
a failure to timely pay for the costs associated with the appeal,[FN23] or where the
appellant fails to timely furnish the security required for suspensive appeal, in
which event the right vests in the appellee to obtain dismissal of the suspensive
appeal and to secure the right to execute on the judgment.[FN24] However, where
the issues on appeal are important, an appeal may not be dismissed on the ground
that the statements of facts in the brief were argumentative and not in compliance
with the appellate rules of procedure.[FN25] Observation: Although the power of
an appellate court to dismiss an appeal for violation of appellate procedure rules
exists in both civil and criminal cases, the sanction of dismissal for failure to
comply with appellate rules of procedure is primarily reserved for civil cases. In
criminal cases, sanctions may be imposed on counsel personally.[FN26]
CUMULATIVE SUPPLEMENT Cases: Remand to appellate court was required
for consideration of whether it had jurisdiction to hear defendant's appeal, where
Supreme Court determined on subsequent appeal that defendant's notice of appeal
to appellate court was deficient, but acknowledged that jurisdictional defect might
have been corrected if defendant amended his notice of appeal. People v. Smith,
228 Ill. 2d 95, 319 Ill. Dec. 373, 885 N.E.2d 1053 (2008). Only in the most
egregious instances of nonjurisdictional default will dismissal of the appeal be
appropriate. Dogwood Development and Management Co., LLC v. White Oak
Transport Co., Inc., 362 N.C. 191, 657 S.E.2d 361 (2008). In determining whether
a party's noncompliance with the appellate rules rises to the level of a substantial
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failure or gross violation, the court may consider, among other factors, whether and
to what extent the noncompliance impairs the court's task of review and whether
and to what extent review on the merits would frustrate the adversarial process.
Dogwood Development and Management Co., LLC v. White Oak Transport Co.,
Inc., 362 N.C. 191, 657 S.E.2d 361 (2008). Noncompliance with the appellate rules
does not, ipso facto, mandate dismissal of an appeal. Dogwood Development and
Management Co., LLC v. White Oak Transport Co., Inc., 362 N.C. 191, 657 S.E.2d
361 (2008). When a party fails to comply with one or more nonjurisdictional
appellate rules, the court should first determine whether the noncompliance is
substantial or gross, if it so concludes, it should then determine which, if any,
sanction should be imposed, and finally, if the court concludes that dismissal is the
appropriate sanction, it may then consider whether the circumstances of the case
justify invoking the appellate rule allowing suspension of the rules to reach the
merits of the appeal. Dogwood Development and Management Co., LLC v. White
Oak Transport Co., Inc., 362 N.C. 191, 657 S.E.2d 361 (2008). [END OF
SUPPLEMENT] [FN1] U.S. v. Carelock, 459 F.3d 437 (3d Cir. 2006). [FN2]
804. [FN3] DiLeo v. Ernst & Young, 901 F.2d 624 (7th Cir. 1990) (federal rules);
Penick v. Cado Systems of Cent. Alabama, Inc., 628 So. 2d 598 (Ala. 1993);
Houston v. Weisman, 197 S.W.3d 204 (Mo. Ct. App. E.D. 2006); State v. Cagle,
641 S.E.2d 705 (N.C. Ct. App. 2007) (the rules of appellate procedure are
mandatory and a violation subjects the appeal to dismissal); Com. v. Murphy, 405
Pa. Super. 452, 592 A.2d 750 (1991) (criminal case); Leger v. State, 855 P.2d 359
(Wyo. 1993). As to the degree of compliance necessary to avoid a dismissal for
failure to follow appellate rules of procedure, see 810. [FN4] Whittle v. State, 210
Ga. App. 841, 437 S.E.2d 842 (1993); In re Joshua W., 94 Md. App. 486, 617 A.2d
1154 (1993); Wenzel v. State, 185 S.W.3d 715 (Mo. Ct. App. S.D. 2006), reh'g
and/or transfer denied, (Feb. 14, 2006) and transfer denied, (Apr. 11, 2006) and
cert. denied, 127 S. Ct. 265, 166 L. Ed. 2d 204 (U.S. 2006). [FN5] Colmore v.
Uninsured Employers' Fund, 2005 MT 239, 328 Mont. 441, 121 P.3d 1007 (2005).
[FN6] Miller v. City of St. Louis, 140 S.W.3d 602 (Mo. Ct. App. E.D. 2004). [FN7]
Boone v. Evanston Hosp., 225 Ill. App. 3d 195, 167 Ill. Dec. 474, 587 N.E.2d 1089
(1st Dist. 1992); City of Wichita v. 200 South Broadway, Ltd. Partnership, 253
Kan. 434, 855 P.2d 956 (1993). [FN8] Krebs v. State, 588 So. 2d 38 (Fla. Dist. Ct.
App. 5th Dist. 1991) (the dismissal of an appeal may be too harsh a sanction for the
late filing of an initial brief); Boone v. Evanston Hosp., 225 Ill. App. 3d 195, 167
Ill. Dec. 474, 587 N.E.2d 1089 (1st Dist. 1992). [FN9] State v. Manes, 112 N.M.
161, 812 P.2d 1309 (Ct. App. 1991) (an appellate court may decline to dismiss a
criminal defendant's appeal for failure to designate necessary exhibits, as required
by the appellate rules of the jurisdiction, where the state ensured that the proper
exhibits were before the appellate court); L.W. Shoemaker, M.D.,
Inc. v. Connor, 81 Ohio App. 3d 748, 612 N.E.2d 369 (10th Dist. Franklin County
1992); Helms v. Boyle, 431 Pa. Super. 606, 637 A.2d 630 (1994) (noting that the
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issue was not raised in the opposing party's brief). [FN10] Furlong Companies, Inc.
v. City of Kansas City, 2005 WL 405852 (Mo. Ct. App. W.D. 2005), reh'g and/or
transfer denied, (Mar. 29, 2005) and transferred to Mo. S. Ct., 189 S.W.3d 157
(Mo. 2006). [FN11] Fed. R App. P. 3(a)(2). [FN12] Ward v. Circus Circus Casinos,
Inc., 473 F.3d 994 (9th Cir. 2007); Coley v. State, 173 N.C. App. 481, 620 S.E.2d
25 (2005), aff'd as modified on other grounds, 360 N.C. 493, 631 S.E.2d 121
(2006). [FN13] Ward v. Circus Circus Casinos, Inc., 473 F.3d 994 (9th Cir. 2007);
The Beyt, Rish, Robbins Group, Architects v. Appalachian Regional Healthcare,
Inc., 854 S.W.2d 784 (Ky. Ct. App. 1993) (absence of indispensable party on cross
appeal). [FN14] Coachmen Industries, Inc. v. Crown Steel Co., 577 N.E.2d 602
(Ind. Ct. App. 3d Dist. 1991). [FN15] City Of Cleveland v. Cornell, 2004-Ohio135, 2004 WL 63931 (Ohio Ct. App. 8th Dist. Cuyahoga County 2004). [FN16]
U.S. v. Barnhart, 152 Fed. Appx. 210 (3d Cir. 2005). [FN17] Hedrick v. Director of
Revenue, 207 S.W.3d 675 (Mo. Ct. App. S.D. 2006). [FN18] White v. White, 846
S.W.2d 212 (Mo. Ct. App. S.D. 1993). [FN19] Wenzel v. State, 185 S.W.3d 715
(Mo. Ct. App. S.D. 2006), reh'g and/or transfer denied, (Feb. 14, 2006) and transfer
denied, (Apr. 11, 2006) and cert. denied, 127 S. Ct. 265, 166 L. Ed. 2d 204 (U.S.
2006). [FN20] Whittle v. State, 210 Ga. App. 841, 437 S.E.2d 842 (1993). [FN21]
Whittle v. State, 210 Ga. App. 841, 437 S.E.2d 842 (1993); State v. Peak, 823
S.W.2d 228 (Tenn. Crim. App. 1991). [FN22] In re Cardizem CD Antitrust
Litigation, 391 F.3d 812, 60 Fed. R. Serv. 3d 267, 2004 FED App. 0429P (6th Cir.
2004), cert. denied, 544 U.S. 1049, 125 S. Ct. 2297, 161 L. Ed. 2d 1089 (2005).
[FN23] Penick v. Cado Systems of Cent. Alabama, Inc., 628 So. 2d 598 (Ala.
1993). [FN24] Clement v. Graves, 924 So. 2d 196 (La. Ct. App. 1st Cir. 2005).
[FN25] State v. Miller, 815 S.W.2d 28 (Mo. Ct. App. E.D. 1991). [FN26] Leger v.
State, 855 P.2d 359 (Wyo. 1993).
810. Procedural errorsSufficiency of substantial compliance West's Key
Number Digest West's Key Number Digest, Appeal and Error k783 to 785 West's
Key Number Digest, Criminal Law k1131(4) West's Key Number Digest, Federal
Courts k722 Appeals should be heard on the merits if possible,[FN1] and,
accordingly, the appellate courts should liberally interpret the applicable appellate
rules to allow such appeals to proceed.[FN2] Substantial compliance with the rules
of appellate procedure may be found sufficient to avoid the dismissal of an appeal
and allow the court to address the merits.[FN3] Thus, mere clerical errors may be
insufficient to require dismissal where the intent to appeal is clear.[FN4] Also, the
appellate court is reluctant to dismiss a proceeding because one seeks the wrong
remedy; a mere misnomer of the procedure should ordinarily not result in a
dismissal.[FN5] Moreover, in some jurisdictions the appellate court is required to
allow an appellant to correct an error before the court can dismiss the appeal,[FN6]
so that if the appellant timely files a document in a bona fide attempt to invoke the
appellate court's jurisdiction, the appellate court must, on the appellant's motion,
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allow the appellant the opportunity to refile or amend the instrument required to
perfect the appeal.[FN7] Observation: The view has been expressed that it is not the
role of the appellate courts to create an appeal from an appellant, and if violations
of the rules of appellate procedure are overlooked by invoking substantial
compliance, the rules become meaningless.[FN8] Accordingly, an appellate court
may not review an appeal that violates the rules of appellate procedure even though
such violations neither impede the court's comprehension of the issues nor frustrate
the appellate process.[FN9] CUMULATIVE SUPPLEMENT Cases: Compliance
with the appellate rules is mandatory. Dogwood Development and Management
Co., LLC v. White Oak Transport Co., Inc., 362 N.C. 191, 657 S.E.2d 361 (2008).
Parties who default under the appellate rules ordinarily forfeit their right to review
on the merits. Dogwood Development and Management Co., LLC v. White Oak
Transport Co., Inc., 362 N.C. 191, 657 S.E.2d 361 (2008). [END OF
SUPPLEMENT] [FN1] 804. [FN2] Brown v. Hamid, 856 S.W.2d 51 (Mo. 1993).
[FN3] Coachmen Industries, Inc. v. Crown Steel Co., 577 N.E.2d 602 (Ind. Ct.
App. 3d Dist. 1991); Davis v. State, 817 S.W.2d 345 (Tex. Crim. App. 1991).
[FN4] Alonzo v. Silverman & Marks Plumbing Co., 623 So. 2d 710 (La. Ct. App.
4th Cir. 1993) (holding that the omission of one appellant's name from the appeals
bond did not warrant dismissal of that appellant where it was clear all the appellants
intended to appeal). [FN5] Swift v. State, 952 So. 2d 1039 (Miss. Ct. App. 2007).
[FN6] Ramirez v. Pecan Deluxe Candy Co., 839 S.W.2d 101 (Tex. App. Dallas
1992), writ denied, (Dec. 31, 1992). [FN7] Grand Prairie Independent School Dist.
v. Southern Parts Imports, Inc., 813 S.W.2d 499, 69 Ed. Law Rep. 1180 (Tex.
1991). [FN8] Jones v. Harrelson and Smith Contractors, LLC, 638 S.E.2d 222
(N.C. Ct. App. 2006). [FN9] Jones v. Harrelson and Smith Contractors, LLC, 638
S.E.2d 222 (N.C. Ct. App. 2006).

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Tenants waived on appeal their argument that trial judge was required to find at
least clear and convincing proof of tenants' breach of a lease agreement, where they
did not raise the issue in the trial court in eviction proceedings. Koon v. Fares, 379
S.C. 150, 666 S.E.2d 230 (2008).
V. Effect of Taking Appeal; Supersedeas or Stay A. Effect of Taking Appeal upon
Judgment Appealed from and Jurisdiction of Trial Court 1. In General Topic
Summary Correlation Table References 387. Generally West's Key Number
Digest West's Key Number Digest, Appeal and Error k436 West's Key Number
Digest, Federal Courts k681.1 The mere taking of an appeal, generally, does not
operate to vacate or nullify the judgment appealed from,[FN1] unless the scope of
review on appeal is de novo.[FN2] Thus, absent a stay or the filing of a supersedeas
bond, the judgment may generally be enforced by the trial court,[FN3] or executed
upon by the party who won the judgment.[FN4] While the judgment or the order
appealed from may remain in force pending appeal, the taking of an appeal
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generally transfers jurisdiction of a matter from the lower court to the appellate
court,[FN5] divesting the trial court of jurisdiction over the case[FN6] and of
authority to vacate,[FN7] amend, modify, or reconsider its judgment.[FN8] This
rule, however, is subject to exceptions.[FN9] Thus, although any order by the trial
court pertaining to the merits of the judgment and entered after the appeal has been
taken is of no effect,[FN10] or at least reversible on appeal,[FN11] the trial court
generally retains jurisdiction to determine matters collateral or incidental to the
judgment,[FN12] and not inconsistent with the appellate court's jurisdiction to
reverse, modify, or affirm that judgment.[FN13] For instance, the court may
exercise the ministerial function of entering final judgment where a partial
summary judgment and order of dismissal have left no unresolved claims,[FN14]
and the appellee may execute on the decree in the lower court, provided that that
the appeal is without a supersedeas bond and that the court does not in any way
broaden, amend, modify, vacate, clarify, or rehear the de-cree.[FN15] Moreover,
interlocutory appeals from rulings in the lower court[FN16] do not divest the lower
court of jurisdiction over the case, and the lower court may also act in aid of the
appeal.[FN17] In contrast to the general rule, statutes or rules of practice may
directly or indirectly authorize the trial court to enter further orders notwithstanding
the taking of an appeal.[FN18] Moreover, notwithstanding the pendency of an
appeal from its judgment, a trial court may be permitted by order of an appellate
court to proceed with specifically stated matters.[FN19] Practice Tip: The precise
time at which a properly taken appeal divests the trial court of jurisdiction varies
among states.[FN20] CUMULATIVE SUPPLEMENT Cases: While an appeal is
pending, a lower court cannot act on matters affecting the issue on appeal.
Grosshuesch v. Cramer, 377 S.C. 12, 659 S.E.2d 112 (2008). [END OF
SUPPLEMENT] [FN1] Matter of Combined Metals Reduction Co., 557 F.2d 179,
23 Fed. R. Serv. 2d 1219 (9th Cir. 1977); Solarana v. Industrial Electronics, Inc., 50
Haw. 22, 428 P.2d 411 (1967); Malick v. Malick, 271 Or. 183, 530 P.2d 1243
(1975). [FN2] Feldman v. St. Mary's Hospital and Health Center, 126 Ariz. 262,
614 P.2d 343 (Ct. App. Div. 2 1980). [FN3] TSA Intern. Ltd. v. Shimizu Corp., 92
Haw. 243, 990 P.2d 713 (1999), as amended on denial of reconsideration, (Dec. 30,
1999); In re Guardianship of Hickman, 811 N.E.2d 843 (Ind. Ct. App. 2004),
transfer denied, 831 N.E.2d 737 (Ind. 2005). [FN4] Matter of Estate of Moreland,
537 So. 2d 1345 (Miss. 1989); Wiest v. Wiegele, 170 Ohio App. 3d 700, 2006Ohio-5348, 868 N.E.2d 1040 (1st Dist. Hamilton County 2006). [FN5] Bert Allen
Toyota, Inc. v. Grasz, 947 So. 2d 358 (Miss. Ct. App. 2007). [FN6] City of
Devondale v. Stallings, 795 S.W.2d 954 (Ky. 1990). Notice of appeal deprived the
district court of jurisdiction to grant appellant's motion to reopen the record to
permit introduction of verified interrogatory answers. VFB LLC v. Campbell Soup
Co., 482 F.3d 624 (3d Cir. 2007). [FN7] 396. [FN8] McNeil v. Hester, 753 So. 2d
1057 (Miss. 2000). [FN9] Schnier v. District Court In and For City and County of
Denver, 696 P.2d 264 (Colo. 1985); Corbin v. State Farm Ins. Co., 109 N.M. 589,
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788 P.2d 345 (1990). [FN10] Fernleaf v. Publishers Paper Co., 61 Or. App. 439,
657 P.2d 723 (1983); Robertson v. Ranger Ins. Co., 689 S.W.2d 209 (Tex. 1985).
[FN11] Carroll County Dept. of Social Services v. Edelmann, 320 Md. 150, 577
A.2d 14 (1990). [FN12] In Interest of B.L., 470 N.W.2d 343 (Iowa 1991); Dent v.
Simmons, 61 Md. App. 122, 485 A.2d 270 (1985). Jurisdiction over award of
attorney's fees notwithstanding appeal, see 391. [FN13] In re S.J., 106 Ohio St. 3d
11, 2005-Ohio-3215, 829 N.E.2d 1207 (2005). [FN14] In re MJK Clearing, Inc.,
302 B.R. 22 (D. Minn. 2003). [FN15] Bert Allen Toyota, Inc. v. Grasz, 947 So. 2d
358 (Miss. Ct. App. 2007). [FN16] U.S. v. Heijnen, 375 F. Supp. 2d 1247 (D.N.M.
2005); R.M.S. Titanic, Inc. v. Wrecked and Abandoned Vessel, 327 F. Supp. 2d
664, 18 A.L.R.6th 859 (E.D. Va. 2004) (appeal from denial of preliminary
evidentiary motions). [FN17] In re S.J., 106 Ohio St. 3d 11, 2005-Ohio-3215, 829
N.E.2d 1207 (2005). [FN18] Ex parte Andrews, 520 So. 2d 507 (Ala. 1987); In re
Custody of R.R.K., 260 Mont. 191, 859 P.2d 998 (1993). Award of attorney's fees
by trial court notwithstanding taking of appeal, see 391. [FN19] McGurn v. Scott,
596 So. 2d 1042 (Fla. 1992) (directing the trial court to make a determination as to
the amount of prejudgment interest due). [FN20] Morrison v. Tyson Foods, Inc., 11
Ark. App. 161, 668 S.W.2d 47 (1984) (lodging of record on appeal in appellate
court); Bert Allen Toyota, Inc. v. Grasz, 947 So. 2d 358 (Miss. Ct. App. 2007)
(filing of notice of appeal).
Practice Tip: Although it is sometimes said that appellate review of proceedings in
equity is de novo, in this context de novo generally refers to the absence of
deference to the factual findings of the lower court rather than to trial de novo; the
reviewing court may not try the case anew, but rather is limited to the record
transmitted from the trial court. U. S. v. City of Brookhaven, 134 F.2d 442 (C.C.A.
5th Cir. 1943); Waite v. A.S. Battiato Co., Inc., 238 Neb. 151, 469 N.W.2d 766
(1991). AMJUR APPELLATE 624.
II. Appealable Matters A. In General; Finality 3. Exceptions and Qualifications to
Final Judgment Rule a. In General Topic Summary Correlation Table References
105. Collateral order doctrine West's Key Number Digest West's Key Number
Digest, Appeal and Error k72, 81 West's Key Number Digest, Federal Courts
k572.1 Certain orders entered during the course of a trial, which determine
important rights of the parties, but which are not related to the cause of action
presented, are appealable under the collateral order doctrine, even though such
orders do not conclude the case.[FN1] Under the collateral order doctrine, the
courts of appeals may consider only issues of law and may not consider any case
which raises a genuine issue of material fact on appeal.[FN2] The collateral order
doctrine is best understood not as an exception to the final decision rule laid down
in the statute which gives the United States Courts of Appeals jurisdiction over all
final decisions of district court that are not directly appealable to the Supreme
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Court, but as a practical construction of the rule.[FN3] The statutory authority of

the Courts of Appeals to review all final decisions of the district courts includes
appellate jurisdiction over a narrow class of decisions that do not terminate the
litigation but are sufficiently important and collateral to the merits that they should
nonetheless be treated as final.[FN4] The collateral order doctrine accommodates a
small class of rulings, not concluding the litigation, but conclusively resolving
claims of right that are separable from, and collateral to, rights asserted in the
action, and that are too important to be denied review and too independent of the
cause itself to require that appellate consideration be deferred until the whole case
is adjudicated.[FN5] However, given the general rule that a party is entitled to a
single appeal, to be deferred until final judgment has been entered, in which appeal
claims of error by a federal district court at any stage of the litigation may be
ventilated, the conditions for appeal under the statute governing appeals to the
United States Courts of Appeals pursuant to the collateral order doctrine are
stringent.[FN6] For purposes of determining whether a federal district court order is
immediately appealable as a final decision pursuant to the collateral order
doctrine, the question whether a right is adequately vindicable or effectively
reviewable on appeal from final judgment cannot be answered without a judgment
about the value of the interests that would be lost through rigorous application of a
final judgment requirement.[FN7] The issue of appealability pursuant to the
collateral order doctrine is to be determined for the entire category to which a claim
belongs, without regard to the chance that the litigation at hand might be speeded,
or a particular injustice averted, by a prompt appellate court decision.[FN8] The
conditions for collateral order appeal are stringent, and require that an order (1)
conclusively determine the disputed question, (2) resolve an important issue
completely separate from the merits of the action, and (3) be effectively
unreviewable on appeal from a final judgment.[FN9] The order must be the final
disposition of the collateral issue, and tentative orders on collateral issues cannot be
appealed.[FN10] If the order only presents a factual question which may differ in
each case,[FN11] or if it involves an exercise of discretion which may be
reconsidered by the trial court,[FN12] an appeal should not be allowed. The
collateral order exception to the final judgment rule does not apply to permit a
plaintiff to immediately appeal a district court's orders staying its action to collect
on a judgment against the defendant, where the action is stayed pending resolution
of parallel state proceedings, and disputed questions have not been conclusively
determined.[FN13] The requirement that the order must resolve an important issue
completely separate from the merits of the action prevents piecemeal review and, as
a result, orders which involve considerations that are enmeshed in the factual and
legal issues of the cause of action are not immediately reviewable.[FN14] An order
dismissing for lack of standing the claims of a group of plaintiffs for injunctive
relief against an alleged denial of preferred school assignments based on race is not
immediately appealable under the collateral order doctrine, because it is clearly not
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separable from the merits, in that the order is dependent on the court's evaluation of
the factual basis for a claim of unconstitutional discrimination, as well as the
application of standing jurisprudence to those facts.[FN15] The requirement that
the order be effectively unreviewable on final appeal means that the rights asserted
would be lost.[FN16] It is not mere avoidance of a trial, but avoidance of a trial that
would imperil a substantial public interest, that counts when asking whether a
district court order is effectively unreviewable if review is to be left until after
entry of a final judgment, as required under the collateral order doctrine.[FN17]
The collateral order doctrine does not provide an exception to the finality rule, as a
basis for appellate jurisdiction over discovery orders of a district court in an
ongoing enforcement proceeding, where disclosure has already occurred, since
deferring review until a final decision by the district court will not cause additional
harm, and any harm that has occurred will be reviewable when a final order is
issued.[FN18] A state has the benefit of the collateral order doctrine to appeal a
decision denying its claim to Eleventh Amendment immunity.[FN19] District court
orders rejecting absolute immunity and qualified immunity likewise are
immediately appealable under the doctrine;[FN20] such an order, whether entered
at the dismissal stage or the summary judgment stage, is a final judgment subject to
immediate appeal.[FN21] Reminder: A state appellate rule is not preempted by the
federal civil rights law[FN22] to the extent the rule does not allow state officials to
take an interlocutory appeal from denial of qualified immunity, where such a rule is
a neutral state rule for administering the state courts, application of the rule
primarily involves a balancing of state interests, and delaying an appeal would not
affect the ultimate outcome of the case; the right to immediate appeal in federal
court is a procedural right that does not apply in a nonfederal forum.[FN23] On the
other hand, a district court's denial of a county's motion for summary judgment in
an action under Section 1983[FN24] based on municipal liability is not
immediately appealable; unlike qualified immunity entitlement, a municipal
defense under Section 1983 is not a right to immunity from trial, but a mere defense
to liability, and the collateral order doctrine does not apply.[FN25] Likewise, a
district court order rejecting the judgment bar of the Federal Tort Claims Act
(FTCA) as a defense to a Bivens action brought against government agents by
plaintiffs, whose action against the United States under the FTCA was dismissed
after the Bivens action was filed, was not immediately appealable under the
collateral order doctrine.[FN26] With respect to some damages claims, under the
Bivens decision,[FN27] by an individual who was a former employee of a savings
and loan association, against a former agent of a federal banking board, for alleged
violations of the individual's federal constitutional rights to due process, the agent
was not limited to one interlocutory appeal to a federal court of appeals from a
denial of qualified immunity, where the agent was appealing from a federal district
court's denial of summary judgment on qualified immunity grounds; an order
rejecting the defense of qualified immunity at either the dismissal stage or the
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summary judgment stage is a final judgment subject to immediate appeal, to the

extent that the order turns on an issue of law, and an unsuccessful appeal from a
denial of dismissal cannot render the later denial of summary judgment any less
final.[FN28] CUMULATIVE SUPPLEMENT Cases: That a district court ruling
may burden litigants in ways that are only imperfectly reparable by appellate
reversal of a final district court judgment does not suffice, for purposes of collateral
order doctrine, which allows an immediate appeal to a court of appeals from a
nonfinal decision of a district court; instead, the decisive consideration is whether
delaying review until the entry of final judgment would imperil a substantial public
interest or some particular value of a high order. Mohawk Industries, Inc. v.
Carpenter, 130 S. Ct. 599 (2009). The collateral order doctrine, which allows an
immediate appeal to a court of appeals from a nonfinal decision of a district court,
must never be allowed to swallow the general rule that a party is entitled to a single
appeal, to be deferred until final judgment has been entered. Mohawk Industries,
Inc. v. Carpenter, 130 S. Ct. 599 (2009). Statutory jurisdiction of courts of appeals,
for appeals from final decisions of district courts, encompasses not only judgments
that terminate an action, but also a small class of collateral rulings that, although
they do not end the litigation, are appropriately deemed final under the collateral
order doctrine, which small category includes only decisions that are conclusive,
that resolve important questions separate from the merits, and that are effectively
unreviewable on appeal from the final judgment in the underlying action. 28
U.S.C.A. 1291. Mohawk Industries, Inc. v. Carpenter, 130 S. Ct. 599 (2009).
Provided it turns on issue of law, district court order denying qualified immunity
can fall within narrow class of prejudgment orders reviewable under collateral
order doctrine;
such an order conclusively determines that defendant must bear burdens of
discovery, conceptually distinct from merits of plaintiff's claim, and would prove
effectively unreviewable on appeal from final judgment. 28 U.S.C.A. 1291.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 173 L. Ed. 2d 868, 73 Fed. R. Serv. 3d 837
(2009). Under "collateral-order doctrine," limited set of district court orders are
reviewable though short of final judgment; orders within this narrow category are
immediately appealable because they finally determine claims of right separable
from, and collateral to, rights asserted in action, too important to be denied review
and too independent of cause itself to require that appellate consideration be
deferred until whole case is adjudicated. 28 U.S.C.A. 1291. Ashcroft v. Iqbal, 129
S. Ct. 1937, 173 L. Ed. 2d 868, 73 Fed. R. Serv. 3d 837 (2009). District court
decision denying Government officer's claim of qualified immunity can fall within
narrow class of appealable orders despite the absence of a final judgment. 28
U.S.C.A. 1291. Ashcroft v. Iqbal, 129 S. Ct. 1937, 173 L. Ed. 2d 868, 73 Fed. R.
Serv. 3d 837 (2009). Provided it turns on issue of law, district court order denying
qualified immunity can fall within narrow class of prejudgment orders reviewable
under collateral order doctrine; such an order conclusively determines that
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defendant must bear burdens of discovery, conceptually distinct from merits of

plaintiff's claim, and would prove effectively unreviewable on appeal from final
judgment. Ashcroft v. Iqbal, 129 S. Ct. 1937, 173 L. Ed. 2d 868, 73 Fed. R. Serv.
3d 837 (2009). Under "collateral-order doctrine," limited set of district court orders
are reviewable though short of final judgment; orders within this narrow category
are immediately appealable because they finally determine claims of right separable
from, and collateral to, rights asserted in action, too important to be denied review
and too independent of cause itself to require that appellate consideration be
deferred until whole case is adjudicated. Ashcroft v. Iqbal, 129 S. Ct. 1937, 173 L.
Ed. 2d 868, 73 Fed. R. Serv. 3d 837 (2009). Though not a final resolution of the
case, an order for the production of documents over which a privilege is asserted is
appealable as finally resolving a collateral discovery issue. Wachtel v. Health Net,
Inc., 482 F.3d 225, 73 Fed. R. Evid. Serv. 113 (3d Cir. 2007). Under the collateral
order doctrine, although "final decisions" under appellate jurisdiction statute
typically are judgments terminating an action, statute also encompasses small
category of prejudgment orders that are collateral to the merits of an action and too
important to be denied immediate review; this category includes only decisions (1)
that are conclusive, (2) that resolve important questions separate from the merits,
and (3) that are effectively unreviewable on appeal from the final judgment in the
underlying action. 28 U.S.C.A. 1291. U.S. v. Myers, 593 F.3d 338 (4th Cir.
2010). Court of Appeals did not have jurisdiction under the collateral order doctrine
to address parish's argument, on interlocutory appeal from denial of its motion to
dismiss action brought by contractor and subcontractor for payments allegedly due,
concerning the collateral estoppel effect of a ruling by another judge in the same
district which construed the same choiceof-forum clause present in parish's contract
with contractor. United Disaster Response, LLC v. Omni Pinnacle, LLC, 511 F.3d
476 (5th Cir. 2007), cert. denied, 2008 WL 1803611 (U.S. 2008). Appeal of district
court's denial of qualified immunity at summary judgment is interlocutory appeal
that Court of Appeals hears as final decision of district court, pursuant to collateral
order doctrine. Dorsey v. Barber, 517 F.3d 389 (6th Cir. 2008). Unresolved
collateral issues of trademark owner's motion for fees and costs and separate
motion to have competitor held in contempt did not affect existence of appellate
jurisdiction for purposes of addressing issues before Court of Appeals of damages
for competitor's infringement under Lanham Act, where competitor had been
properly served but failed to appear or answer owner's complaint, competitor had
been found to be in default, and default judgment had been entered and owner's
motion for reconsideration later had been denied. WMS Gaming Inc. v. WPC
Productions Ltd., 542 F.3d 601 (7th Cir. 2008), as amended, (Sept. 16, 2008). All
three requirements for collateral order appeal must be met for a court to exercise
jurisdiction under the collateral order doctrine. Greensprings Baptist Christian
Fellowship Trust v. Cilley, 629 F.3d 1064 (9th Cir. 2010). Collateral-order doctrine
did not apply to allow appellate review of district court's remand order in property
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owners' action to quiet title to real property formerly used as a railroad rightof-way
against railway company and trail authority, despite defendants' attempt to fashion
a reviewable collateral order by aggregating several district court statements about
property owners' state-law claims; the collateral-order doctrine only permitted
review where the statutory bar on review of remand orders did not apply, and did
not provide an independent basis for review. Moody v. Great Western Ry. Co., 536
F.3d 1158 (10th Cir. 2008). Motion to dismiss indictment charging conspiracy to
possess and actual possession of marijuana with intent to distribute on basis that
prosecution constituted a substantial burden on defendant's exercise of their religion
in violation of the RFRA did not implicate the First Amendment right not to be
tried, and thus, appeal from order denying motion did not come within collateral
order exception to general rule that jurisdiction of Court of Appeals in criminal
matters is limited to appeals from final judgments; defendants asserted only a First
Amendment defense. U.S. v. Quaintance, 523 F.3d 1144 (10th Cir. 2008). District
court's denial of motion to dismiss in decision conclusively determining issue of
subject matter jurisdiction over Libya despite assertion of sovereign immunity,
separate from merits of French organization's suit, under the Foreign Sovereign
Immunities Act (FSIA), on behalf of insurers that compensated survivors and
estates of passengers killed in bombing of French airliner in Africa, was reviewable
on interlocutory appeal, under collateral order exception to finality rule, since
decision would have been effectively unreviewable on appeal from final judgment
due to inability to repair damage caused by requiring Libya to litigate
notwithstanding sovereign immunity. La Reunion Aerienne v. Socialist People's
Libyan Arab Jamahiriya, 533 F.3d 837 (D.C. Cir. 2008). Collateral order doctrine
applied to appeal of assertion of jurisdiction by district court over Russian
Federation with regard to one claim under Foreign Sovereign Immunities Act
(FSIA) that had not been dismissed where district court had dismissed other FSIA
claim and expressly determined that there was "no just reason for delay" of
appellate review of that dismissed claim. Agudas Chasidei Chabad of U.S. v.
Russian Federation, 528 F.3d 934 (D.C. Cir. 2008). The denial of a motion to
dismiss based on the bar of an existing judgment, whether the bar is statutory in
nature or under common law res judicata principles, is not subject to immediate
appeal under the collateral order doctrine. Tamara A. v. Montgomery County Dept.
of Health and Human Services, 407 Md. 180, 963 A.2d 773 (2009). The collateral
order doctrine generally permits an appeal from a non-final order that satisfies four
requirements: the order must (1) conclusively determine the disputed question, (2)
resolve an important issue, (3) be completely separate from the merits of the action,
and (4) be effectively unreviewable on appeal from a final judgment. Johnson v.
Clark, 199 Md. App. 305, 21 A.3d 199 (2011). [END OF SUPPLEMENT] [FN1]
U.S. v. Moats, 961 F.2d 1198, 22 Fed. R. Serv. 3d 1007 (5th Cir. 1992); Board of
Water Works Trustees v. City of Des Moines, 469 N.W.2d 700 (Iowa 1991); Kronz
v. Kronz, 393 Pa. Super. 227, 574 A.2d 91 (1990). [FN2] Sallenger v. Oakes, 473
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F.3d 731 (7th Cir. 2007). [FN3] Will v. Hallock, 546 U.S. 345, 126 S. Ct. 952, 163
L. Ed. 2d 836 (2006) (referring to 28 U.S.C.A. 1291). As to the final judgment
rule, generally, see 79, discussing 28 U.S.C.A. 1291. [FN4] Will v. Hallock,
546 U.S. 345, 126 S. Ct. 952, 163 L. Ed. 2d 836 (2006). [FN5] Will v. Hallock, 546
U.S. 345, 126 S. Ct. 952, 163 L. Ed. 2d 836 (2006); In re Deposit Ins. Agency, 482
F.3d 612 (2d Cir. 2007); Ibeto Petrochemical Industries Ltd. v. M/T Beffen, 475
F.3d 56 (2d Cir. 2007). [FN6] Digital Equipment Corp. v. Desktop Direct, Inc., 511
U.S. 863, 114 S. Ct. 1992, 128 L. Ed. 2d 842, 29 Fed. R. Serv. 3d 399 (1994)
(referring to 28 U.S.C.A. 1291). As to 28 U.S.C.A. 1291, generally, see 79.
[FN7] Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863, 114 S. Ct.
1992, 128 L. Ed. 2d 842, 29 Fed. R. Serv. 3d 399 (1994). [FN8] Digital Equipment
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 114 S. Ct. 1992, 128 L. Ed. 2d 842, 29
Fed. R. Serv. 3d 399 (1994). [FN9] Will v. Hallock, 546 U.S. 345, 126 S. Ct. 952,
163 L. Ed. 2d 836 (2006); Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir.
2007); U.S. v. Howard, 480 F.3d 1005 (9th Cir. 2007); In re Napster, Inc.
Copyright Litigation, 479 F.3d 1078 (9th Cir. 2007). [FN10] Blondin v. Winner,
822 F.2d 969 (10th Cir. 1987). [FN11] International Business Machines Corp. v.
U.S., 480 F.2d 293 (2d Cir. 1973). [FN12] Cohen v. Beneficial Indus. Loan Corp.,
337 U.S. 541, 69 S. Ct. 1221, 93 L. Ed. 1528 (1949). [FN13] Karaha Bodas Co.,
LLC. v. Virginia Indonesia Co., BP Muriah Ltd., 57 Fed. Appx. 535 (3d Cir. 2003).
[FN14] Rosenstein v. Merrell Dow Pharmaceuticals, Inc., 769 F.2d 352 (6th Cir.
1985); Jay Jenkins
Co. v. Financial Planning Dynamics, Inc., 256 Ga. 39, 343 S.E.2d 487 (1986);
Board of Water Works Trustees v. City of Des Moines, 469 N.W.2d 700 (Iowa
1991). [FN15] Anderson v. City of Boston, 244 F.3d 236, 153 Ed. Law Rep. 29 (1st
Cir. 2001). [FN16] Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S. Ct.
2757, 86 L. Ed. 2d 340 (1985); Blondin v. Winner, 822 F.2d 969 (10th Cir. 1987).
[FN17] Will v. Hallock, 546 U.S. 345, 126 S. Ct. 952, 163 L. Ed. 2d 836 (2006).
[FN18] ADAPT of Philadelphia v. Philadelphia Housing Authority, 417 F.3d 390
(3d Cir. 2005). [FN19] Will v. Hallock, 546 U.S. 345, 126 S. Ct. 952, 163 L. Ed. 2d
836 (2006). As to the appealability of orders denying Eleventh Amendment
immunity and qualified immunity, generally, see 80. [FN20] Will v. Hallock, 546
U.S. 345, 126 S. Ct. 952, 163 L. Ed. 2d 836 (2006). [FN21] Evans-Marshall v.
Board of Educ. of Tipp City Exempted Village School Dist., 428 F.3d 223, 203 Ed.
Law Rep. 88, 2005 FED App. 0432P (6th Cir. 2005). [FN22] 42 U.S.C.A. 1983.
[FN23] 80. [FN24] 42 U.S.C.A. 1983. [FN25] Summers v. Leis, 368 F.3d 881,
2004 FED App. 0148P (6th Cir. 2004). [FN26] Will v. Hallock, 546 U.S. 345, 126
S. Ct. 952, 163 L. Ed. 2d 836 (2006). [FN27] Bivens v. Six Unknown Named
Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S. Ct. 1999, 29 L. Ed. 2d
619 (1971). [FN28] Behrens v. Pelletier, 516 U.S. 299, 116 S. Ct. 834, 133 L. Ed.
2d 773, 34 Fed. R. Serv. 3d 1 (1996).
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II. Appealable Matters A. In General; Finality 3. Exceptions and Qualifications to

Final Judgment Rule b. Interlocutory Appeals Authorized by Statute or Rule (2)
Types of Interlocutory Appeals Authorized under Typical State Statutes or Rules
Topic Summary Correlation Table References 114. Orders resulting in irreparable
injury West's Key Number Digest West's Key Number Digest, Appeal and Error
k68, 73(2) A.L.R. Library Appealability of interlocutory or pendente lite order for
temporary child custody, 82 A.L.R.5th 389 Some statues or rules authorizing
special appeals from interlocutory orders have contained provisions permitting
appeals of interlocutory orders which may cause irreparable injury.[FN1] Under
such provisions, a party thus may appeal an interlocutory order that affects some
substantial right claimed by the appellant and will work an injury to him or her if
not corrected before an appeal from the final judgment.[FN2] In this connection,
the test for determining whether an interlocutory judgment may cause irreparable
injury, and thus be appealable, is whether a procedural error will have such an
effect on the merits of the case that the appellate court cannot correct an erroneous
decision on the merits.[FN3] An appellant seeking an interlocutory appeal of an
order as so concluding the rights of the parties that further proceedings cannot
affect them must do more than show that the trial court's decision threatens
irreparable harm; the appellant must show that that decision threatens to abrogate a
right that he or she then holds.[FN4] A judgment sustaining an exception of
improper venue is an appealable interlocutory judgment under a statutory provision
allowing an immediate appeal of interlocutory judgments if a failure to do so would
cause irreparable harm; the failure to review a judgment sustaining an exception of
improper venue could cause irreparable harm where the effect of such a judgment,
trying the case in an improper venue, cannot, as a practical matter, be corrected on
appeal.[FN5] [FN1] Aleutian Region R. E. A. A. v. Wolansky, 630 P.2d 529
(Alaska 1981); Daginella v. Foremost Ins. Co., 197 Conn. 26, 495 A.2d 709 (1985);
Riverlands Nat. Bank v. Williams, 450 So. 2d 753 (La. Ct. App. 5th Cir. 1984);
Crafts v. Quinn, 482 A.2d 825 (Me. 1984). [FN2] Department of Transp. v. Rowe,
351 N.C. 172, 521 S.E.2d 707 (1999). [FN3] Miller v. Upjohn Co., 461 So. 2d 676
(La. Ct. App. 1st Cir. 1984); Moshe Myerowitz, D.C., P.A. v. Howard, 507 A.2d
578 (Me. 1986). [FN4] Massachusetts Mut. Life Ins. Co. v. Blumenthal, 281 Conn.
805, 917 A.2d 951 (2007). [FN5] Gerrets v. Gerrets, 948 So. 2d 343 (La. Ct. App.
4th Cir. 2007).
II. Appealable Matters A. In General; Finality 3. Exceptions and Qualifications to
Final Judgment Rule b. Interlocutory Appeals Authorized by Statute or Rule (2)
Types of Interlocutory Appeals Authorized under Typical State Statutes or Rules
Topic Summary Correlation Table References 115. Orders affecting substantial
rights West's Key Number Digest West's Key Number Digest, Appeal and Error
k68, 70, 70(8), 78(1), 91(1) A.L.R. Library Appealability of interlocutory or
pendente lite order for temporary child custody, 82 A.L.R.5th 389 State statutes
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sometimes contain a provision which makes appealable an order affecting a

substantial right,[FN1] and which in effect determines the action or suit so as to
prevent a judgment or decree therein,[FN2] or a final order affecting a substantial
right made in a special proceeding.[FN3] Under such a statute, interlocutory orders
are not immediately appealable unless a substantial right of one of the parties would
be affected if the appeal is delayed until a final judgment.[FN4] A substantial
right, for purposes of the rule that an interlocutory order that affects a substantial
right is immediately appealable, is a right that will be lost or irremediably and
adversely affected if the trial court's order is not reviewed before a final judgment.
[FN5] Whether an interlocutory ruling affects a substantial right, and is thus
immediately appealable, requires consideration of the particular facts of that case
and the procedural context in which the order from which the appeal is sought was
entered.[FN6] Therefore, whether a substantial right is affected, so that an
interlocutory order is immediately appealable, is determined on a case-by-case
basis.[FN7] To be a substantial right within the meaning of such a statutory
provision, the right involved in the order appealed from must be an essential legal
right and not a mere technical one.[FN8] A substantial right, for purposes of
determining whether a decision is final and appealable, is a legal right enforced and
protected by law.[FN9] When a party asserts a statutory privilege that directly
relates to the matter to be disclosed under an interlocutory discovery order, and the
assertion of such privilege is not otherwise frivolous or insubstantial, the
challenged order affects a substantial right, for appellate purposes.[FN10]
Likewise, an appellate court has jurisdiction to review a trial court's interlocutory
order entering summary judgment on the issue of punitive damages in an action by
former patients against a medical director and the director's employer, since the
patients have a substantial right in having their claim for punitive damages
determined, if at all, before the same judge and jury which heard the claim for
compensatory damages.[FN11] Motions for change of venue, because the county
designated is not proper, affect a substantial right and are immediately appealable.
[FN12] According to some authority, however, the general rule that transfer orders
are not final appealable orders extends to situations in which an order transfers a
case to a different type of trial court.[FN13] CUMULATIVE SUPPLEMENT
Cases: For purposes of determining whether a trial court's order is one affecting a
substantial right made during a special proceeding, such that it is final and
appealable, a "substantial right" is an essential legal right, not a mere technical
right. West's Neb.Rev.St. 251902. In re Interest of Karlie D., 283 Neb. 581,
2012 WL 967849 (2012). Analysis of whether a trial court order deprives a party of
a mode of trial to which it is entitled as a matter of right, such that the order is
immediately appealable, includes the consideration of the availability of trial, as
question of the denial of an actual trial is intrinsic to that analysis. Salmonsen v.
CGD, Inc., 377 S.C. 442, 661 S.E.2d 81 (2008). [END OF SUPPLEMENT] [FN1]
Kelly v. Mayfield, 76 Ohio App. 3d 1, 600 N.E.2d 1094 (1st Dist. Hamilton County
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1991); In re Michael U., 273 Neb. 198, 728 N.W.2d 116 (2007); Bolick v. County
of Caldwell, 641 S.E.2d 386 (N.C. Ct. App. 2007); State ex rel. White v. Cuyahoga
Metro. Hous. Auth., 79 Ohio St. 3d 543, 1997-Ohio-366, 684 N.E.2d 72 (1997).
[FN2] In re Michael U., 273 Neb. 198, 728 N.W.2d 116 (2007). [FN3] Chapman v.
Dorsey, 230 Minn. 279, 41 N.W.2d 438, 16 A.L.R.2d 1015 (1950); Barry v. Wolf,
148 Neb. 27, 26 N.W.2d 303 (1947); Barry v. Wolf, 148 Neb. 27, 26 N.W.2d 303
(1947); Hartwig v. Harvey, 250 Wis. 478, 27 N.W.2d 363, 15 A.L.R.2d 333 (1947)
(overruled in part on other grounds by, State v. McDonald Lumber Co., 9 Wis. 2d
206, 100 N.W.2d 701 (1960)). An order may be one affecting a substantial right
and thus be appealable when made in a special proceeding, even though it does not
terminate the action or constitute a final disposition of the case. Sullivan v. Storz,
156 Neb. 177, 55 N.W.2d 499, 34 A.L.R.2d 1142 (1952). [FN4] Bolick v. County
of Caldwell, 641 S.E.2d 386 (N.C. Ct. App. 2007). [FN5] Nello L. Teer Co., Inc. v.
Jones Bros., Inc., 641 S.E.2d 832 (N.C. Ct. App. 2007). [FN6] Department of
Transp. v. Rowe, 351 N.C. 172, 521 S.E.2d 707 (1999). [FN7] Nello L. Teer Co.,
Inc. v. Jones Bros., Inc., 641 S.E.2d 832 (N.C. Ct. App. 2007). [FN8] Sullivan v.
Storz, 156 Neb. 177, 55 N.W.2d 499, 34 A.L.R.2d 1142 (1952). [FN9] State ex rel.
White v. Cuyahoga Metro. Hous. Auth., 79 Ohio St. 3d 543, 1997-Ohio-366, 684
N.E.2d 72 (1997). [FN10] Sharpe v. Worland, 351 N.C. 159, 522 S.E.2d 577
(1999). [FN11] Foster v. Crandell, 638 S.E.2d 526 (N.C. Ct. App. 2007). [FN12]
Hawley v. Hobgood, 174 N.C. App. 606, 622 S.E.2d 117 (2005). [FN13] Lops v.
Lops, 140 F.3d 927 (11th Cir. 1998) (applying Georgia law). 2012 Thomson
Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt.
Works. All rights reserved. AMJUR APPELLATE 115 END OF DOCUMENT
American Jurisprudence, Second Edition Database updated August 2012 Appellate
Review Romualdo P. Eclavea, J.D., Lucas Martin, J.D., Karl Oakes, J.D., and
Glenda K. Harnad, J.D, of the National Legal Research Group, Inc. II. Appealable
Matters A. In General; Finality 3. Exceptions and Qualifications to Final Judgment
Rule b. Interlocutory Appeals Authorized by Statute or Rule (2) Types of
Interlocutory Appeals Authorized under Typical State Statutes or Rules Topic
Summary Correlation Table References 116. Orders terminating special
proceeding or special action West's Key Number Digest West's Key Number
Digest, Appeal and Error k83, 84(5) A.L.R. Library Appealability of interlocutory
or pendente lite order for temporary child custody, 82 A.L.R.5th 389 Reviewability
before trial of order denying qualified immunity to defendant sued in state court
under 42 U.S.C.A. sec. 1983, 49 A.L.R.5th 717 State statutes authorizing appeals
from certain exceptional interlocutory decisions may provide for appeal from an
order terminating a special proceeding.[FN1] For the purposes of a statute
providing that an order affecting a substantial right made in a special proceeding is
a final order for purposes of appeal, a special proceeding includes every special
statutory remedy which is not in itself an action.[FN2] Examples of special
proceedings, for purposes of a statute providing that an order affecting a
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substantial right made in a special proceeding is a final order for purposes of

appeal, include juvenile court proceedings, probate actions, and workers'
compensation cases.[FN3] According to some authority, a special proceeding
which affects a substantial right is, by definition, not part of an action.[FN4] A
judgment rendered by the district court that is merely a step or proceeding within
the overall action thus is not a special proceeding, for the purposes of a statute
providing that an order affecting a substantial right made in a special proceeding is
a final order for purposes of appeal.[FN5] According to other authority, however,
the proceeding may be special even though it is connected with a pending action.
[FN6] CUMULATIVE SUPPLEMENT Cases: A juvenile court proceeding is a
"special proceeding," for purposes of determining whether a juvenile court's order
is one affecting a substantial right made during a special proceeding, such that it is
final and appealable. West's Neb.Rev.St. 251902. In re Interest of Karlie D., 283
Neb. 581, 811 N.W.2d 214 (2012). Probate proceedings are special proceedings
under statute defining final, appealable orders. West's Neb.Rev.St. 251902. Big
John's Billiards, Inc. v. State, 283 Neb. 496, 811 N.W.2d 205 (2012). [END OF
SUPPLEMENT] [FN1] In re Marriage of Rex, 199 Mont. 328, 649 P.2d 460
(1982); In re Michael U., 273 Neb. 198, 728 N.W.2d 116 (2007). [FN2] Pfeil v.
State, 273 Neb. 12, 727 N.W.2d 214 (2007). [FN3] Pfeil v. State, 273 Neb. 12, 727
N.W.2d 214 (2007). [FN4] Pfeil v. State, 273 Neb. 12, 727 N.W.2d 214 (2007).
[FN5] Pfeil v. State, 273 Neb. 12, 727 N.W.2d 214 (2007). [FN6] Sullivan v. Storz,
156 Neb. 177, 55 N.W.2d 499, 34 A.L.R.2d 1142 (1952). 2012 Thomson
Reuters. 33-34B 2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt.
Works. All rights reserved. AMJUR APPELLATE 116 END OF DOCUMENT
American Jurisprudence, Second Edition Database updated August 2012 Appellate
Review Romualdo P. Eclavea, J.D., Lucas Martin, J.D., Karl Oakes, J.D., and
Glenda K. Harnad, J.D, of the National Legal Research Group, Inc. II. Appealable
Matters A. In General; Finality 3. Exceptions and Qualifications to Final Judgment
Rule b. Interlocutory Appeals Authorized by Statute or Rule (3) Special Rules and
Considerations Governing Discretionary Interlocutory Appeals in Federal Courts
(a) In General Topic Summary Correlation Table References 117. Certification of
interlocutory order as appealable by trial judge West's Key Number Digest West's
Key Number Digest, Federal Courts k575, 660.1, 660.30, 660.35 In order for an
interlocutory order to be
appealable pursuant to the statute which accords to federal district courts
circumscribed authority to certify for immediate appeal interlocutory orders
deemed pivotal and debatable, the trial judge must state in writing, as part of the
order, that the order involves a controlling question of law as to which there is a
substantial ground for difference of opinion and that an immediate appeal from the
order may materially advance the ultimate termination of the litigation.[FN1] Thus,
the consent of the trial judge is required before a party may seek review of a
nonfinal order.[FN2] This requirement permits the trial judge to screen appeals, so
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as to assure that review will be confined to appropriate cases and to avoid timeconsuming jurisdictional determinations by the court of appeals.[FN3] Observation:
A party must obtain certification from both the district court and the court of
appeals to bring an interlocutory appeal.[FN4] If the district court does not certify
an order, the court of appeals does not have jurisdiction to hear an appeal, unless
the order is appealable under some other statute.[FN5] Because certification is
contrary to the federal policy against piecemeal appeals, it is not a routine
procedure.[FN6] Interlocutory appeals, under the interlocutory appeal statute, are
reserved for exceptional or rare cases and should be authorized only with great
care.[FN7] Thus, while the granting or denial of certification for interlocutory
appeal lies largely in the discretion of the district judge,[FN8] certification of an
interlocutory order for appeal is warranted only in exceptional cases, where early
appellate review might avoid protracted and expensive litigation.[FN9] For the
district court merely to state that the ruling is certified pursuant to the applicable
statute[FN10] may imply that the court concluded an interlocutory appeal was
appropriate, but standing alone, it does not clearly demonstrate an actual belief by
the district court that those specific statutory requirements were satisfied.[FN11]
Proper certification thus may be found where the district court tracks the language
of the statute, or where it is otherwise evident on the face of the district court's
written order that certification was intended and that the district court actually
believed the statutory requirements were fulfilled.[FN12] However, it is
recommended that the district court state in writing that it is of the opinion that its
order involves a controlling question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal may materially advance the
ultimate termination of the litiga-tion.[FN13] Practice Tip: An order may be
amended to include the prescribed statutory requirements at any time.[FN14]
Furthermore, a district court has authority to rescind its prior order certifying an
interlocutory appeal at any time prior to the court of appeals order granting
permission to bring such an ap-peal.[FN15] Although it will often be evident why
the question presented by the certified order is controlling, further elaboration by
the district judge will be helpful in understanding why the judge believes that there
is a substantial ground for difference of opinion and that immediate appeal from
the order may materially advance the ultimate termination of the litiga-tion.
[FN16] A district court ruling which is a mere expression of the court's view of the
law unassociated with the disposition of any claim is not an order otherwise
appealable under the statute allowing certification of interlocutory appeals.[FN17]
On the other hand, a district court can certify as final an appeal from a judgment,
even without explicit findings and an explanation of the reasoning underlying its
certification.[FN18] After obtaining proper certification for an immediate appeal
from a federal district court, it is required by statute[FN19] that a would-be
appellant petition the court of appeals for permission to appeal, and must do so
within 10 days after entry of district court's certification or-der.[FN20] A district
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court order certifying for immediate appeal the court's order staying an action
pending resolution of certain issues by federal and state agencies does not provide
the court of appeals with jurisdiction to hear the appeal from the stay order, where
the plaintiff does not file an interlocutory appeal within 10 days of the certification
order, as required by statute.[FN21] Under the interlocutory appeal statute, the
district court has continuing authority to proceed with the litigation after certifying
an interlocutory appeal, absent a stay issued by the appellate court.[FN22]
CUMULATIVE SUPPLEMENT Cases: Statute governing appellate review by the
Court of Appeals of interlocutory decisions of the district court authorizes
certification of orders for interlocutory appeal, not certification of questions. Linton
v. Shell Oil Co., 563 F.3d 556 (5th Cir. 2009). No demonstration that governing
standards for interlocutory appeal had been met was made by employer seeking
leave to appeal from interlocutory order of district court denying its summary
judgment motion in Jones Act action by purported seaman; although district court
certified to Court of Appeals "the issues raised" in employer's summary judgment
motion, in supporting memoranda, and in employee's opposition, district court did
not file summary judgment motion, opposition, or memorandum in support with
appellate court, nor did its order contain any findings of fact, conclusions of law, or
application of law to fact, no justification for interlocutory appeal was given other
than language of statute governing appeal of interlocutory decisions, and employer
should have sought certification not only of bare questions of law framed by district
judge, but also of district court's order giving its reasoning as to how these
questions were resolved and why that resolution led to denial of its motion. Linton
v. Shell Oil Co., 563 F.3d 556 (5th Cir. 2009). "Interests of comity" was not proper
basis to certify interlocutory appeals. 28 U.S.C.A. 1292(b). Couch v. Telescope
Inc., 611 F.3d 629 (9th Cir. 2010). Certification by United States Attorney that
appeal was not taken for purpose of delay and that evidence was substantial proof
of a fact material in the proceeding was sufficient for purposes of establishing
appellate court's jurisdiction under Federal Rule of Criminal Procedure granting
government the right to an interlocutory appeal from a district court's evidentiary
ruling in certain circumstances, in light of plain language of rule; overruling United
States v. Loud Hawk, 628 F.2d 1139; United States v. Gantt, 194 F.3d 987; United
States v. Poulsen, 41 F.3d 1330; United States v. Adrian, 978 F.2d 486; United
States v. Layton, 720 F.2d 548. U.S. v. W.R. Grace, 526 F.3d 499 (9th Cir. 2008).
As a general rule, an interlocutory ruling may not be appealed pending the final
disposition of a case. Vejseli v. Pasha, 282 Conn. 561, 923 A.2d 688 (2007). [END
OF SUPPLEMENT] [FN1] 28 U.S.C.A. 1292(b), discussed generally in 110.
As to the necessity of a certificate of appealability in criminal cases under the
Antiterrorism and Effective Death Penalty Act, see 201. [FN2] Coopers &
Lybrand v. Livesay, 437 U.S. 463, 98 S. Ct. 2454, 57 L. Ed. 2d 351, 25 Fed. R.
Serv. 2d 565 (1978). [FN3] Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S. Ct.
2454, 57 L. Ed. 2d 351, 25 Fed. R. Serv. 2d 565 (1978). [FN4] City of Los
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Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 50 Fed. R. Serv.
3d 1441 (9th Cir. 2001). As to leave from the court of appeals to file an
interlocutory appeal, generally, see 125. [FN5] Commonwealth Ins. Co. v.
Underwriters, Inc., 846 F.2d 196 (3d Cir. 1988); Fletcher v. Gagosian, 604 F.2d
637, 28 Fed. R. Serv. 2d 566 (9th Cir. 1979); Anderson v. Air West, Inc., 542 F.2d
1090, 22 Fed. R. Serv. 2d 346 (9th Cir. 1976). [FN6] Span East Airlines, Inc. v.
Digital Equipment Corp., 486 F. Supp. 831 (D. Mass. 1980). [FN7] Klamath Irr.
Dist. v. U.S., 69 Fed. Cl. 160 (2005). [FN8] Martens v. Smith Barney, Inc., 238 F.
Supp. 2d 596 (S.D. N.Y. 2002); Ferraro v. Secretary of U.S. Dept. of Health and
Human Services, 780 F. Supp. 978 (E.D. N.Y. 1992). [FN9] Martens v. Smith
Barney, Inc., 238 F. Supp. 2d 596 (S.D. N.Y. 2002). [FN10] 28 U.S.C.A.
1292(b). [FN11] Hewitt v. Joyce Beverages of Wisconsin, Inc., 721 F.2d 625, 37
Fed. R. Serv. 2d 951 (7th Cir. 1983). [FN12] Hewitt v. Joyce Beverages of
Wisconsin, Inc., 721 F.2d 625, 37 Fed. R. Serv. 2d 951 (7th Cir. 1983). [FN13]
Hewitt v. Joyce Beverages of Wisconsin, Inc., 721 F.2d 625, 37 Fed. R. Serv. 2d
951 (7th Cir. 1983). [FN14] Drake v. Lochinvar Water Heater, Inc., 618 F. Supp.
549 (D. Minn. 1985), judgment rev'd on other grounds, 797 F.2d 603, 87 A.L.R.
Fed. 571 (8th Cir. 1986). [FN15] City of Los Angeles, Harbor Div. v. Santa Monica
Baykeeper, 254 F.3d 882, 50 Fed. R. Serv. 3d 1441 (9th Cir. 2001). [FN16] Isra
Fruit Ltd. v. Agrexco Agr. Export Co. Ltd., 804 F.2d 24 (2d Cir. 1986). [FN17]
Church of Scientology Flag Service Org., Inc. v. City of Clearwater, 777 F.2d 598
(11th Cir. 1985) (referring to 28 U.S.C.A. 1292(b)). [FN18] Mercado v. RitzCarlton San Juan Hotel, Spa & Casino, 410 F.3d 41 (1st Cir. 2005). [FN19] 28
U.S.C.A. 1292(b). [FN20] Casey v. Long Island R. Co., 406 F.3d 142 (2d Cir.
2005). [FN21] Crystal Clear Communications, Inc. v. Southwestern Bell Tel. Co.,
415 F.3d 1171 (10th Cir. 2005). [FN22] City of New York v. Beretta U.S.A. Corp.,
234 F.R.D. 46 (E.D. N.Y. 2006). 2012 Thomson Reuters. 33-34B 2012
Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights reserved.
AMJUR APPELLATE 117 END OF DOCUMENT American Jurisprudence,
Second Edition Database updated August 2012 Appellate Review Romualdo P.
Eclavea, J.D., Lucas Martin, J.D., Karl Oakes, J.D., and Glenda
K. Harnad, J.D, of the National Legal Research Group, Inc. II. Appealable Matters
A. In General; Finality 3. Exceptions and Qualifications to Final Judgment Rule b.
Interlocutory Appeals Authorized by Statute or Rule (3) Special Rules and
Considerations Governing Discretionary Interlocutory Appeals in Federal Courts
(a) In General Topic Summary Correlation Table References 118. Review of trial
judge's failure to certify West's Key Number Digest West's Key Number Digest,
Federal Courts k575, 660.1, 660.30, 660.35 A district court's refusal to certify an
interlocutory appeal, pursuant to the statute which accords to federal district courts
circumscribed authority to certify for immediate appeal interlocutory orders
deemed pivotal and debatable,[FN1] is not reviewable.[FN2] Certification of an
interlocutory order for appeal likewise is discretionary with the district court and is
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not subject to review.[FN3] Mandamus generally will not lie to compel a district
judge to add a certificate of appealability to an interlocutory order,[FN4] since an
appellate court is without jurisdiction to review the district judge's exercise of
discretion in refusing to certify a question for appeal.[FN5] Likewise, prohibition is
not available as a substitute for the interlocutory review authorized by statute, when
the trial judge makes no certificate.[FN6] [FN1] 28 U.S.C.A. 1292(b). [FN2]
Marrese v. American Academy of Orthopaedic Surgeons, 706 F.2d 1488, 36 Fed.
R. Serv. 2d 412 (7th Cir. 1983), on reh'g, 726 F.2d 1150, 14 Fed. R. Evid. Serv.
1185, 38 Fed. R. Serv. 2d 205 (7th Cir. 1984), judgment rev'd on other grounds,
470 U.S. 373, 105 S. Ct. 1327, 84 L. Ed. 2d 274 (1985); In re Master Key Antitrust
Litigation, 528 F.2d 5 (2d Cir. 1975). [FN3] In re Powerhouse Licensing, LLC, 441
F.3d 467, 2006 FED App. 0082P (6th Cir. 2006). [FN4] In re Phillips Petroleum
Co., 943 F.2d 63 (Emer. Ct. App. 1991); United Telecommunications, Inc. v.
Saffels, 741 F.2d 312, 39 Fed. R. Serv. 2d 1253 (10th Cir. 1984); State Bd. of Ed.
v. Fox, 620 F.2d 578 (6th Cir. 1980). [FN5] Pfizer, Inc. v. Lord, 522 F.2d 612, 20
Fed. R. Serv. 2d 1053 (8th Cir. 1975). [FN6] In re Centrotextil, 620 F.2d 690 (8th
Cir. 1980) (referring to 28 U.S.C.A. 1292(b)). 2012 Thomson Reuters. 33-34B
2012 Thomson Reuters/RIA. No Claim to Orig. U.S. Govt. Works. All rights
reserved. AMJUR APPELLATE 118 END OF DOCUMENT
Judge Flanagan's 1/11/12 Order in 03628 reads: ORDER
This is an appeal from Reno Justice Court ("RJC") and involves a landlordtenan dispute. On October 27, 2011, Justice of the Peace Peter J. Sferrazza granted
a no-cause summary eviction against Appellant ZACHARY BARKER
COUGHLIN ("Coughlin") of failure to pay rent on property located at 121 River
Rock Street, Reno, Nevada 89501 (the "Property"), which was (and still is) owned
by Respondent MATT MERLISS ("Merliss"). Currently before this Court is
Coughlin's Emergency Motion for Temporary Restraining Order or Injunction
Preventing Merliss from "Disposing" of Tenants Property; or, in the Alternative;
Motion for Stay ("Emergency Motion") filed on December 30, 2011.
According to Judge Sferrazza's findings of fact, Coughlin began a twelvemonth tenanc at the Property on March 1, 2010, which terminated on February 28,
2011 and converted into month-to-month tenancy. On August 22, 2011, and with
proper notice, Merliss terminate Coughlin's tenancy under NRS 40.251, Nevada's
unlawful detainer statute. Because Coughlin failed to vacate the Property within the
statutorily-mandated period (thirty days), Merliss served upon Coughlin a notice of
unlawful detainer and summary eviction on September 27, 201l. After two
evidentiary hearings, Judge Sferrazza rejected Coughlin's defenses to the eviction
which included habitability and discrimination allegations. Thus, by a written Order
date October 27, 2011 Judge Sferrazza granted summary eviction against Coughlin
and gave hi until October 31,2011 to vacate the premises.
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Coughlin failed to vacate the Property and remove his belongings in a timely
manner. a result, Coughlin was removed for trespass on November 13, and Merliss
placed a lien ove Coughlin's personal belongings. Coughlin contested the lien and
Judge Sferrazza held a hearing Thereafter,on December 21, 2011, Judge Sferrazza
entered another Order requiring Coughlin to pay to Merliss the fair and reasonable
compensation for storage of Coughlin's personal propert between November 1,
2011 and November 16, 2011. The Order also required Coughlin t remove his
property by 5 pm on December 23,2011, and that anything left on the Property afte
that time and date "may be disposed of by [Merliss] in his sole discretion."
Again, Coughlin failed to remove his belongings timely, but Merliss granted
him extension until 5 pm on December 30, 2011, in exchange for, inter alia, a
waiver of Coughlin's security deposit. On December 30, 2011, Coughlin filed the
above-mentioned Emergency Motion (fn1 Several minutes after filing the
Emergency Motion, Coughlin filed an Amended Emergency Motion in order t
correct the proof of service date.) to prevent Merliss's disposal of his personal
property. Merliss filed an Opposition to Amended Emergency Motion for
Temporary Restraining Order on January 3, 2012, an Coughlin filed a Reply on
January 5, 2012.
After reviewing the parties' pleadings, the exhibits attached thereto, the
statutes, particularly NRCP 65(c) and NRS 33.010, and after considering all of the
parties' arguments,this Court finds Coughlin has failed to demonstrate with specific
facts that irreparable injury, loss, or damage would result absent a TRO or
injunction, or that a legal remedy is inadequate. (fn2 This Court recognizes
Coughlin has failed to comply with certain procedural requirements of NRCP
65(c), namely the requirements that specific facts be shown "by affidavit or by the
verified complaint .... " Pursuant to this Court's long-standing policy of adjudicating
cases on the merits, rather than dismissing them for procedural reasons this Court
will overlook Coughlin's failure on this occasion in light of the circumstances
surrounding this case.).
CONCLUSION Accordingly, Coughlin's Emergency Motion for Temporary
Restraining Order or Injunction Preventing Merliss from "Disposing" of Tenants
Property; or, in the Alternative; Motion for Stay is DENIED. IT IS SO ORDERED.
DATED this day of January, 11th, 2012. /s/ Patrick Flanagan District Judge
Where Judge Flanagan's 6/25/12 Order in 03628 (FHE2) reads: ORDER
Currently before this Court is Respondent MATT MERLISS' s ("Merliss") Motion
for Attorney's Fees on April 19, 2012. In the absence of any opposition from
Appellant ZACHARY BARKER COUGHLIN ("Coughlin"), Merliss submitted
this matter for decision on May 9, 2012. However, on June 9, 2012, Coughlin filed
a Supplement to Opposition to Motion for Attorney's Fees. response, Merliss filed a
Reply to Supplement to Opposition to Motion for Attorney's Fees June 14, 2012,
and submitted the matter-again-that same day.
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Merliss requests this Court to award attorney's fees in the amount of

$42,065.50 against Coughlin in the underlying summary eviction matter pursuant to
NRS 69.050 and NRS 7.085 Merliss and his counsel aver these fees are reasonable,
particularly given Coughlin' "deliberate[] ... pattern of abusive, vexatious, and most
importantly, expensive in both this appeal and in the case below [in Reno Justice
Court]." (Mot. at p. 2) (Original emphasis. Merliss avers Coughlin's litigation
strategy "was simply to keep the fight going" and "require substantial additional
work by Merliss' counsel, far beyond anything in a 'normal' eviction.' (Mot. at p.
3.) Merliss asserts this additional work was necessary because he "could not risk
the court accepting some random citation in Coughlin's papers and entering an
adverse ruling because [he] had not opposed it." (Mot. at p. 5.)
Further, Merliss's counsel, Richard G. Hill, alleges these fees "do not include
substantial amount of editing and other activities performed by [Mr. Hill] in this
case." (Mot. a . 6; Mot. Ex. 4.) Merliss contends "[i]t is hard to imagine a more
appropriate case than this in which to award the maximum amount justified by the
substantial evidence before the court.' (Mot. at p. 6.) Merliss goes even further and
states:
As proven above and below, the frivolity and vexatiousness of
Coughlin's maintenance and extension of this matter has been so
beyond reason, and so outrageous, and the nexus of his behavior to
the fees incurred by Merliss so direct and indisputable, that nothing
less than a full award of those fees should even be considered by the
court. To not impose the full measure of the harm Coughlin has
caused would reward and encourage his vexatiousness in this and
other cases. There needs to be a day of reckoning for Coughlin's
antics. (Mot. at p. 8.)
Nevada law provides for "a reasonable attorney fee to be fixed and allowed
by the district court for all services rendered in behalf of the prevailing party" on
appeal from justice court. NEV. REV. STAT. 69.050. In addition, NRS 7.085
requires the district court to order an attorney personally to pay reasonable
attorney's fees incurred as a result of the filing, maintaining or defending of civil
action where "such action or defense is not well-grounded in fact or is not
warranted by existing law ...." NEV. REv. STAT. 7.085(1)(a). The same applies
to attorney who has "[u]nreasonably and vexatiously extended a civil action . "
NEV. REv. STAT. 7.085(1)(b).
If grounds exist to award attorney's fees, Nevada courts follow the lodestar
analysis. Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 864, 124 P.3d
530, 549 (2005) ("The lodestar approach involves multiplying the number of hours
reasonably spent on the case by reasonable hourly rate.") (Quotations and citations
omitted.) In determining the reasonableness of the fee award, the district court
should consider the following four factors: (1) the advocates' qualities; (2) the
character of the work; (3) the work performed; and (4) the result obtained. See,
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Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969)
(citation omitted); Barney v. Mt. Rose Heating & Conditioning, 124 Nev. 821, 829,
192 P.3d 730, 73 (2008) (per curiam) (applying the Brunzell factors).
After reviewing Merliss's moving papers-including the detailed and
thorough summary of fees and his counsels' accompanying Declarations-and after
considering all of the parties' arguments, this Court concludes Merliss's attorney's
fees request is authorized by Nevada law. This Court also has considered the
factors set forth in Brunzell, supra. analyzing those factors, and given the unique
features of this case, this Court concludes Merliss's fee request is reasonable.
Accordingly, Merliss's Motion for Attorney's Fees GRANTED in the sum of
$42,065.50. IT IS SO ORDERED. DATED this 25th day of June, 2012. /s/ Patrick
Flanagan District Judge
Where Judge Flanagan's 6/25/12 Order in 03628 (FHE2) reads: ...Currently
before this Court is Respondent MATT MERLISS' s ("Merliss") Motion for
Attorney's Fees on April 19, 2012. In the absence of any opposition from
Appellant ZACHARY BARKER COUGHLIN ("Coughlin"), Merliss submitted
this matter for decision on May 9, 2012...
After reviewing Merliss's moving papers-including the detailed and
thorough summary of fees and his counsels' accompanying Declarations-and after
considering all of the parties' arguments, this Court concludes Merliss's attorney's
fees request is authorized by Nevada law. This Court also has considered the
factors set forth in Brunzell, supra. analyzing those factors, and given the unique
features of this case, this Court concludes Merliss's fee request is reasonable.
Accordingly, Merliss's Motion for Attorney's Fees GRANTED in the sum of
$42,065.50...
What is clear is that Judge Flanagan's choice of words in the above excerpt
demonstrates that he was applying DCR 13(3) (and not NRS 7.085 or NRS 69.050)
in awarding attorney's fees (Further, Baker had previously sought attorney's fees in
number of different filings in 03628, and the Orders by Judge Flanagan wherein
such fees were not awarded should act as a law of the case bar to the across the
board award of fees for the very entries in Baker's "Activity Reports" that Judge
Flanagan previously failed to award attorney's fees (to say nothing of the multitude
of instances where Baker sought fees for the same thing both from Judge Sferrazza
in 1708 and again from Judge Flanagan in the appeal in 03628) for in response to
Baker's already one made motions for such (Baker will argue that his failure to title
the filings wherein such requests for attorney's fees as a "Motion for Attorney's
Fees" somehow makes inapplicable DCR 13(7) dictate against making a motion
again and again ("7.No motion once heard and disposed of shall be renewed
in the same cause, nor shall the same matters therein embraced be reheard,
unless by leave of the court granted upon motion therefor, after notice of such
motion to the adverse parties.").
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Instances of Baker seeking attorney's fees in his filings include:

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Casey D. Baker's 6/14/12 filing in 03628 reads: REPLY TO

SUPPLEMENT TO OPPOSITION TO MOTION FOR ATTORNEY'S FEES
Respondent, MATT MERLISS, by and through his counsel, RICHARD G. HILL,
LTD., and CASEY D. BAKER, ESQ., replies to the "Supplement to Opposition to
Motion for Attorney's Fees" filed herein on June 9, 2012 by Mr. Coughlin. Mr.
Coughlin's supplement is seriously tardy, and is nonsense. Mr. Coughlin's
supplement should be stricken from the record: This reply is based on the points
and authorities below and all papers and pleadings on file herein.
POINTS AND AUTHORITIES; FACTS
As the court is aware, this is an appeal from a summary eviction order
entered in the Reno Justice Court. Merliss believes the court to be familiar with the
underlying substantive facts of this case, and will not needlessly repeat them here.
The pertinent procedural facts are as follows:
1.On October 27, 2012, the Reno Justice Court entered its Findings of Fact,
Conclusions of Law, and Order for Summary Eviction in case no. REV2011001708. ROA, Vol. II, pp. 75-80.
2. On January 14, 2012, Coughlin filed his "Opposition to Motion for Attorney's
Fees," even though no such motion had been filed in this case.
3. On March 30,2012, this court entered an order denying Coughlin's appeal from
the summary eviction order. Merliss was the prevailing party on appeal. Merliss
filed and served a notice of entry ofthat order on the same day.
4.On April 3, 2012, Merliss timely filed and served his memorandum ofcosts and
disbursements.
5. Coughlin's motion to retax was due by no later than April 9, 2012. Coughlin did
not file any motion to retax as required by NRS 18.110, but instead filed a bizarre,
rambling, and abusive "opposition to memorandum of costs," to which Merliss
replied on April 12, 2012.
6. On April 19, 2012, Merliss timely filed and served his motion for attorney's fees
pursuant to NRS 69.05Q and NRS 7.085.
7. Coughlin's opposition to Merliss' motion for attorney's fees was due by no later
than May 7, 2012. Coughlin did not file any opposition to the motion for fees.
8. On May 9, 2012, Merliss requested submission of his motion for attorney's fees.
That motion remains pending, awaiting the court's ruling.
9. On May 22, 2012, the Court entered an order granting Merliss' memorandum of
costs and disbursements. underlying substantive facts of this case, and will not
needlessly repeat them here.
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10. On June 8, 2012, Coughlin filed a "motion to alter or amend" the court's award
of costs.

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11. On June 9, 2012, more than a month after his opposition was due, and exactly
one month after the motion had been submitted for a decision, Coughlin filed the
instant "supplement," in which he purports to finally oppose Merliss' motion for
attorney's fees.
LAW AND ANALYSIS
Mr. Coughlin's opposition, if any, to Merliss' motion for attorney's fees was
due by no later than May 7, 2012. DCR 13(3). WDCR 12(2). Coughlin's
"supplement" is tardy, having been filed more than a month after it was due, and
exactly one month after the motion was submitted to the court for a decision.
Coughlin's failure to file a timely opposition should be construed by the court as an
admission by Coughlin that the motion is meritorious and should be granted. DCR
13(3). King v. Cartlidge, 121 Nev. 926, 124 P.3d 1161 (2005).
Coughlin claims that the opposition he filed on January 14, 2012 is "a
standing order and applies and applied to any and all attorney's fees motion (sic)
ever submitted in this matter... " Supplement to Opposition at 5:21-22. This is
nonsense and without any basis in the Rules or case law. Coughlin offers no
authority for the proposition that a litigant can file a pre-emptive opposition to a
motion that may, or may not, ever be filed in the future. In fact, both WDCR 12(2)
and DCR 13(3) specifically require that any opposition must be filed" ... within 10
days after service of a motion... " (Emphasis added). Coughlin's January 14, 2012
"opposition" was and is a fugitive document with no bearing on this case, other
than to show either (1) Coughlin's complete incompetence as an attorney, and/or (b)
that the fees he consistently and needlessly inflicted on Merliss throughout this case
were by specific design.
Substantively, Coughlin's "supplement" proves the points made in Merliss'
motion. The fees in this case have reached such astronomical levels solely and
exclusively due to Coughlin's ridiculous ravings and his penchant for confrontation
where none should exist. He continues to file nonsensical rants for no purpose
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Coughlin's "supplement" is 13 pages long. Approximately one-half of the

document contains nothing but irrelevant and unprofessional personal attacks on
Merliss, his counsel, various local judges, and Coughlin's public defenders.
Threaded amongst these attacks are Coughlin's inappropriate attempts to re-argue
the merits of the underlying eviction. The other half of the document consists of
irrelevant and unanalyzed string cites of authority that Coughlin copied and pasted
from Westlaw. Nowhere in his "supplement" does Coughlin make any coherent
argument, or cite to any relevant authority, as to why Merliss should not be
awarded his fees.
Merliss was undisputedly the prevailing party on appeal. He is entitled to an
award of fees under NRS 69.050 as a matter of right. Coughlin's frivolous and
vexatious efforts to prolong this matter without any basis in law or fact are laid bare
in Merliss' motion. Inthe event it was not obvious already, Coughlin's "supplement"
removes all doubt that an award of fees under NRS 7.085 is also appropriate.1 (fn1
Coughlin's license to practice law in Nevada was suspended by the Nevada
Supreme Court on June 7, 2012. See EXHIBIT 1 hereto, which is a true and correct
copy of that Court's order. Nevertheless, NRS 7.085 still applies to all of Coughlin's
conduct referenced in the motion, and sanctions are appropriate.)
Just as described in the motion for attorney's fees, Merliss has now been
forced, yet again, to incur additional fees to respond to Coughlin's "supplement,"
even though that document is without any merit whatsoever. Coughlin's blind
insistence on continuing his rampage is not well-founded in either law or fact. But,
rather, it is calculated coletly to inflict more harm on Merliss. As discussed in
detail in Merliss' fees motion, Coughlin's filings, and each of them, have been
perfectly and consistently frivolous and vexatious. Coughlin must be stopped.
Procedural sanctions are both necessary and appropriate.
This court possesses the inherent power "of equity and of control over the
exercise of [its] jurisdiction." Jordan v. State, Dept. of Motor Vehicles, 121 Nev.
44, 59,110 P.3d 30 (2005). That power includes the right to restrict a litigants
access to the court's processes. Id. In addition, "NRCP 11 permits a district court to
impose appropriate deterrent sanctions on a party who violates that rule by signing
court documents that are frivolous or presented for an improper purpose." Id.
(Emphasis added). See also, NRCP 11(C)(2).
Here, Coughlin has demonstrated his overwhelming and consistent
propensity to file documents solely to vex and harass Merliss. His multiple and
voluminous filings, and each of them, including the instant "supplement," have
been so deficient, and so devoid of merit, as to raise a presumption that every
document filed by him from this point forward will be, and is, frivolous. Merliss
specifically asks the court to make such a factual finding. Merliss further
requests that the court exercise its equitable and statutory authority to
sanction Coughlin, and protect Merliss from Coughlin's abuses, by entering a
sanction order to the effect that Merliss is not required to respond to any
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further filings by Coughlin, until and unless directed to do so by the court.

Merliss asks that the scope of any such order include the June 8, 2012 "motion to
alter or amend order granting memorandum of costs" filed by Coughlin. In
addition to the foregoing non-monetary sanctions, Merliss also asks for
sanctions in the amount of $500.00, as and for the fees he incurred to prepare
this reply, and that Coughlin be held in contempt of court if he fails to pay.
Reference is made to the Declaration of Casey D. Baker, Esq., attached
hereto as EXHIBIT 2, for authentication of all exhibits and a discussion of the fees
incurred in preparing this reply.
CONCLUSION This case is over. Enough is enough. Coughlin lost at every
level, and must now face the consequences of his actions. Merliss is entitled to an
award of fees pursuant to NRS 69.050 and NRS 7.085, as discussed in the instant
motion. Coughlin's "supplement" is tardy, and without any substantive merit. The
contents of the "supplement" only reinforce the arguments made by Merliss in his
motion. The January 14, 2012 "opposition" filed by Coughlin is a fugitive
document that may not be considered by the court. DCR 13(3). WDCR 12(2).
Coughlin's failure to timely file an opposition to Merliss' motion for attorney's fees
should be construed as an admission by Coughlin that the motion should be
granted. DCR 13(3). In addition to the fees requested in the motion, Merliss asks
the court for an additional award of fees in the amount of $500.00, which represents
two hours of the undersigned's time to read, decipher, and oppose Coughlin's
frivolous "supplement." Merliss further asks for a sanction order against Coughlin
to the effect that Merliss need not respond to any future filings by Coughlin, until
and unless directed to do so by the Court.
WHEREFORE, Merliss prays for in award of fees as prayed for in the
motion for attorney's fees filed herein on April 19, 2b12; for an additional award of
fees in the amount of$500.00, as and for fees incurred i~ preparing this reply; for a
sanction order of the court that Merliss need not respond to ant future filing by
Coughlin, until and unless directed to do so by the court; and for such other,
further, and additional relief as seems just to the court in the premises. DATED
this 14th day of June, 2012 /s/ Casey D. Baker, Esq.

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In his 2/24/12 Answering Brief, Baker writes:

RESPONDENT'S
ANSWERING BRIEF Respondent, MATT MERLISS ("MERLISS"), by and through his
counsel, RICHARD G. HILL, LTD. and CASEY D. BAKER, ESQ., submits his
Answering Brief.
I. STATEMENT OF THE ISSUES: The only issue in this appeal is whether the
Reno Justice Court erred in granting a summary eviction of appellant, ZACHARY
COUGHLIN ("COUGHLIN") by its Findings of Fact, Conclusions of Law, and Order for
Summary Eviction ("FFCL&O") dated December 27,201.2. See Record on Appeal
("ROA") at Vol. II, pp. 75-80. EXHIBIT 1 hereto.
II. STATEMENT OF THE CASE: Although Coughlin has muddied the record to a
spectacular degree with his abusive filings, at its core, this is a simple no-cause residential

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summary eviction case. The pertinent facts are as follows: The underlying facts of the
eviction are set forth in the FFCL&O. The statutory notices and other documentary
evidence the court relied on in making its findings of fact (NOTE: Baker is dancing
around the lack of a satisfactory Lanldord's Affidavit pursuant to NRS 40.254(2)) can be
found at ROA, Vol. V, pp. 85-89; 90-94; 95-109; 113-128. EXHIBITS 2, 3, 4 and 5
hereto. The Standard Rental Agreement ("LEASE") for the home at 121 River Rock,
Reno, Nevada (the "PROPERTY") can be found at ROA, Vol. V, pp 129-132. EXHIBIT 6
hereto. Those facts were established during two evidentiary hearings, in which Coughlin
fully participated. The first hearing was on October 13, 2011, and lasted 90 minutes. A
continuation of that hearing occurred on October 25, 2011, and lasted several hours. l
The purpose of those hearings was to "determine the truthfulness and sufficiency of the
tenant's and the landlord's affidavits," to determine whether there is any "legal defensei as
to the alleged unlawful detainer," and whether "the tenant is guilty of an unlawful
detainer".2 Those hearings were Coughlin's opportunity to substantiate, by competent
evidence, any legal defense he may have had to the eviction.
The only defenses raised by Coughlin below were based on what he claimed was
"retaliatory"ii conduct by Merliss, and "habitability" issues at the property. Both defenses
were based on provisions of NRS Chapter l18A.3 At the first hearing, Coughlin alleged
his defenses, but did not offer any evidence to support them.iii Judge Sferrazza could have
granted an eviction after that hearing, but chose instead to allow Coughlin another
opportunity to substantiate his allegations.4 Since Coughlin's defenses were based on
alleged "habitability" issues, the court required him to deposit, pursuant to NRS 40.355(5)
(sic, NRS 118A.355(5)), the amount of rent Coughlin claimed he had withheld for those
reasons, before he would be allowed to substantiateiv them with evidencev.5 Coughlin
ultimately failed to raise any material factual dispute, and the court properly granted the
eviction. The lockout was performed on November 1, 2011. Coughlin filed his first notice
of appeal on November 3, 2011.6 On November 13, 2011, Coughlin was found living in
the basement of the property, and was arrested.7 Coughlin continues to file additional
papers in both courts, wherein he attempts to raise new arguments he never raised
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III. STANDARD OF REVIEW: "[A]n order granting summary eviction under NRS
40.253(6) should be reviewed on appeal based upon the standard for review of an order
granting summary judgment under NRCP 56 because these proceedings are analogous.8
vi
("To successfully defend against a summary judgment motion, the nonmoving party
must transcend the pleadings and, by affidavit or other admissible evidence, introduce
specific facts that show a genuine issue of material fact.'"9 viiA case appealed must not be
tried a new." 10 Further, "a [lower court's] findings will not be disturbed on appeal unless
they are clearly erroneous and are not based on substantial evidence.viii"11 ( "The notice of
appeal shall specify the party or parties taking the appeal; shall designate the judgment,
order or part thereof appealed from ...,,12 "Only those parts of the judgmentix which are
included in the notice of appeal will be considered by the appellate Court. 13
9.Torrealba v. Kesmitis, 124 Nev. 95, 178 P.3d 716 (2008).
10. NJCRCP 76A.
11. Gibellini v. Klindt, 110 Nev. 1201, 1204, 885 P.2d 540 (1994) (emphasis added).

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12. NJCRCP 72( c).

13. Reno Newspapers, Inc. v. Bibb, 76 Nev. 332, 335, 353 P.2d 458 (1960). (Its literally
hysterical the extent to which Baker starts out by pointing out the Anvui mandatory
authority that appeals of summary judgment order and summary eviction orders "are
analogous" (and where Baker cites to the "no legal defense" language of NRS 40.253(6),
then grafts on to that the "no genuine issue of material fact" from the "analogous" NRCP
56(c) (note, "analogous" does not mean identical, and clearly the legislature recognized the
impropriety of holding a tenant in a summary eviction proceeding to the same burden as to
factual matters where discovery is either not permitted or entirely curtailed given the
rapidity of the procedures under NRS 40.253 and the primacy of one having a roof over
their head or business.)...Then Baker proceeds to cite entiretly to cases that have nothing
to do with "summary judgment", much less the merely "analogous" summary eviction
procedures under NRS 40.253...Sure, Gibellini says "a [lower court's] findings will not be
disturbed on appeal unless they are clearly erroneous and are not based on substantial
evidence", but, that case involved a plenary trial, not a summary eviction. Therefore, far
less deference should be accorded to the "trial court's" FOF in 1708 (is it really a "trial
court" if there was no "trial"?). Then Baker proceeds to cite to more precedent relating
only to plenary trials (Marcuse, Schuck, Bibb, etc.).
Corpus Juris Secundum
Database updated March 2013
Landlord and Tenant
XII. Reentry and Recovery of Possession by Landlord

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C. Statutory Dispossession Proceedings; Summary Proceedings

7. Appellate Review
1576. Standard of review
, Landlord and Tenant 291(18), 315(1), 315(3) A decision of the trial court in a summary dispossession
proceeding may be reviewed for abuse of discretion, but under some statutes, a de novo review is conducted.
The reviewing court will give weight to the opinion of the trial court[1] and will not disturb an
exercise of discretion by the trial court in the absence of an abuse of the court's discretion.[2] The appellate
court will indulge in reasonable presumptions in support of the findings of the trial court on conflicting
evidence[3] and in support of the judgment appealed from.[4]
Under some statutes, however, dispossession proceedings are triable de novo on appeal.[5] Where
there is a trial de novo, the appellate court should consider the facts of the case[6] and render a proper
judgment.[7]
Whether the unlawful detainer notice requirement is calculated in accordance with the timing
provisions of the civil rules is a matter of statutory interpretation to be reviewed de novo.[8] An order
granting a summary eviction under a lease providing for periodic rent reserved by the month, or any shorter
period, should be reviewed on appeal based upon the standard of review for an order granting summary
judgment, which is de novo review, because such proceedings are analogous.[9]
[FN1] N.Y.Metropolitan Life Ins. Co. v. Carroll, 43 Misc. 2d 639, 251 N.Y.S.2d 693 (App. Term 1964).
[FN2] Cal.Whipple v. Haberle, 223 Cal. App. 2d 477, 36 Cal. Rptr. 9 (5th Dist. 1963). Reviewing
decision regarding issuance of a protective order D.C.Graham v. Lanier Associates, 19 A.3d 361 (D.C.
2011). Plenary review of sufficiency of notice to quit Conn.Bayer v. Showmotion, Inc., 292 Conn. 381,
973 A.2d 1229 (2009). [FN3] Ala.Hyde v. Isbell, 254 Ala. 373, 48 So. 2d 465 (1950). Ill.Woodson v.
Benson, 330 Ill. App. 248, 70 N.E.2d 742 (1st Dist. 1947). [FN4] Ill.Mitchell v. Tyler, 332 Ill. App. 577,
76 N.E.2d 237 (1st Dist. 1947). Mass.Staples v. Collins, 321 Mass. 449, 73 N.E.2d 729 (1947). [FN5]
Ala.Hyde v. Isbell, 254 Ala. 373, 48 So. 2d 465 (1950). Mo.Conley v. Dee, 246 S.W.2d 385 (Mo. Ct.
App. 1952). [FN6] Ariz.Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 P.2d 394 (1946). [FN7]
Ariz.Olds Bros. Lumber Co. v. Rushing, 64 Ariz. 199, 167 P.2d 394 (1946). Mo.Conley v. Dee, 246
S.W.2d 385 (Mo. Ct. App. 1952). [FN8] Wash.Christensen v. Ellsworth, 162 Wash. 2d 365, 173 P.3d 228
(2007). [FN9] Nev.Anvui, LLC v. G.L. Dragon, LLC, 123 Nev. 212, 163 P.3d 405 (2007). CJS
LANDLORD 1576
Instead, what Baker and Judge Flanagan did is apply the standard of review that would be
applicable had Judge Sferrazza actually done what NRS 40.253(6) required of him upon his finding that
Coughlin has established a "legal defense" in his 10/13/11 ruling, which would be to conduct a plenary trial
a la NJCRCP 109, wherein NJCRCP 3 to 89 would be applicable (which would make Baker and Flanagan's
citations to NJCRCP 72 and 76 appropriate). All of Baker's focus on "substantiating" the affidavits is
misplaced, particularly with respect to whether there is "no genuine issue of material fact". Rather, NRS
40.253(6) allows only for "testing the truthfulness and sufficiency of the affidavits" as such relates to
whether there is "no legal defense" (ie, the second part of the NRCP 56(c) standard.
From the 10/13/11 Transcript:

"Judge: Alright, sir. I am going to rule now because first of all I find under the NRS
if you want to make a habitability claim you have to deposit the rent and if it wasnt
clear in my order previously I am going to make it very clear today. Defendant:
Your Honor. Judge: But now sir I am going to give you credit for your alleged
habitability issues. The rent that is due as of today will be 4,500. Im going to give
you credit for the stairs of 1250, weeds of 350 weeds of 350 twice. The garbage
disposal 125 and the window 150 which comes out to 2225. In addition Im going
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to give you 500 credit for the mold abatement, which is 2725. So the 4500 minus
2225 is 2275. I will continue this till tomorrow at 9:00 AM for you to deposit the
20. It wont be tomorrow it will be Monday. Defendant: Your Honor [inaudible
0:48:25] $1,000 claim for damage to the landscaping installation if you wouldnt
mind. Judge: I am not going to do anything for that, but it has nothing to do with
the landlord so far as I am concerned at this point that is a third party claim which
you can proceed against the third party. Defendant: Your Honor the lease is
Judge: That is not habitability sir, that has nothing to do Defendant: But the
lease says he is liable for damage done on my lawn. Judge: Who said? Defendant:
The lease says that subsection 28. Judge: Well Defendant: Clearly. Judge: Not by
third parties. Defendant: It does Your Honor, it says by his agents or employees he
is responsible. Judge: Yeah and [inaudible 0:48:58] that they are his agents I find
they are in independent contractor and so if you deposit the rent by Monday at 9:00
oclock with the court in the amount of 2275 I will continue this for Trial on the
merits to determine whether or not there really is a habitability issue. If the rent is
not deposited then there will be no continuance the eviction will be granted
forthwith on Monday morning at 9:00 oclock. And furthermore the court is now
making any finding other than that you have made an argument about habitability
and that you are entitled to Trial on that issue if you deposit the rent. Alright but
you are not entitled to Trial if you dont deposit the rent. And I have given you
credit based on your allegation which is, which I do not find was substantiated
today; I simply find that you made that allegation, that this is what you were owed.
And so if you deposit the rent then we will set this for Trial and it will be the
following week after that on the same court day. The same day of the week.
Defendant: Tuesdays and Thursday. So on the Tuesday it will be at 10:00 AM.
Judge: What day is that? Defendant: Well you are looking at, okay he has had until
17th to post the 2275 and you are saying have the hearing the following week that
will be 25th October. Judge: Okay 25th October what time? Defendant: That would
be at 10:00 oclock. Judge: Alright, so thats the courts order and I will see you
back then have a good day. [0:51:42]"
The CJS on review of plenary trials that follows is simply inapplicable to review of summary
evictions, but its pretty much exactly the approach taken by Baker and Flanagan:
XII. Reentry and Recovery of Possession by Landlord B. Actions for Recovery of Possession in General 4.
Procedure 1522. Appeal and error , Landlord and Tenant 285(7) A judgment for the possession of the
leased premises is appealable unless otherwise provided by the lease or by statute. Unless the right to appeal
is waived in the lease,[1] and except to the extent that the appeal is controlled by statute,[2] judgment for the
possession of the premises is appealable on the giving of such security as may be required by the local
practice.[3] The tenant may be required to post the amount of rent arrears.[4] A statute may require the
tenant to pay rent as it becomes due during the period of appeal.[5] The general rules of appeal and error
usually apply on such an appeal,[6] and, accordingly, to be appealable, a decision must be final[7] and
present a concrete dispute.[8] Objections not raised in the trial court may not be urged on appeal.[9]
Similarly, the failure to raise an issue in the trial court proceedings may preclude an argument on appeal as
to the burden of proof on that issue.[10] Lack of a transcript may also be fatal to an appeal.[11] The
reviewing court will not consider the merits of the appeal where a moot question is involved.[12] A tenant's
appeal from a judgment of possession for the landlord becomes moot if the tenant has voluntarily

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surrendered possession of the premises.[13] However, tenants' involuntary departure from the premises by
eviction does not render such an appeal moot.[14] A trial court's findings of fact will not be disturbed unless
they are clearly erroneous, and the evidence will be viewed in the light most favorable to the prevailing
party.[15] [FN1] Pa.Seagrave v. Lacy, 28 Pa. Super. 586, 1905 WL 3770 (1905). [FN2] Pa.Federoff v.
Nieratko, 67 Pa. D. & C. 583, 1949 WL 3131 (C.P. 1949). [FN3] Neb.Rorick Partnership v. Haug, 228
Neb. 364, 422 N.W.2d 365 (1988). N.Y.Jack Spring, Inc. v. Little, 50 Ill. 2d 351, 280 N.E.2d 208 (1972).
R.I.Jones v. Aciz, 109 R.I. 612, 289 A.2d 44 (1972). [FN4] Pa.Smith v. Coyne, 555 Pa. 21, 722 A.2d
1022 (1999). [FN5] R.I.Russo v. Fleetwood, 713 A.2d 775 (R.I. 1998). [FN6] D.C.Hohensee v.
Linkins, 160 A.2d 390 (Mun. Ct. App. D.C. 1960). As to the right of review, generally, see C.J.S., Appeal
and Error 237 to 291. [FN7] D.C.LaPrade v. Liebler, 614 A.2d 546 (D.C. 1992). [FN8] R.I.Jones v.
Aciz, 109 R.I. 612, 289 A.2d 44 (1972). [FN9] N.D.Hieb v. Jelinek, 497 N.W.2d 88 (N.D. 1993). [FN10]
U.S.Koon v. Fares, 379 S.C. 150, 666 S.E.2d 230 (2008), cert. denied, 130 S. Ct. 187, 175 L. Ed. 2d 41
(2009). [FN11] D.C.Mack v. Zalco Realty, Inc., 630 A.2d 1136 (D.C. 1993). [FN12] La.Barcom, Inc. v.
Doll, 119 So. 2d 544 (La. Ct. App., Orleans 1960). [FN13] D.C.Joyner v. Jonathan Woodner Co., 479
A.2d 308 (D.C. 1984). [FN14] D.C.Joyner v. Jonathan Woodner Co., 479 A.2d 308 (D.C. 1984). [FN15]
D.C.Hinton v. Sealander Brokerage Co., 917 A.2d 95 (D.C. 2007). Findings of fact Reviewing court
should not substitute its own findings of fact. N.Y.Glenbriar Co. v. Lipsman, 5 N.Y.3d 388, 804 N.Y.S.2d
719, 838 N.E.2d 635 (2005). CJS LANDLORD 1522

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IV. ARGUMENT: Despite having filed more than 50 pages in two briefs,
Coughlin fails to articulate or coherently analyze what he claims to be errors by the justice
court. 14 He does not make so much as a single citation to the ROA, and his failure in this
regard is sanctionable.15 The Court and Merliss are unfairly left to speculate as to the
bases for his appeal. 16 The incoherency of Coughlin's briefs makes that task nearly
impossible. This difficulty is compounded by Coughlin's refusal to pay for a transcript of
the proceedings below. 17 On or about February 8, 2012, Coughlin attempted to
supplement his opening brief with a CD that supposedly contained the audio recordings
ofthe hearings below. Not only was this an improper attempt by Coughlin to circumvent
the record on appeal, the CD delivered to the undersigned's office was so badly damaged,
that it would not be opened, even by counsel's IT professional. Because ofCoughlin's
transgressions, Merliss has been deprived ofthe ability to accurately cite to the hearing
below. As best Merliss can tell, Coughlin alleges the following errors:
1. Judge Sferrazza mistakenly called the October 25, 2012 hearing a "trial" and
required Coughlin to deposit the withheld rent with the court
Summary eviction hearings are conducted pursuant to NRS 40.253(6). "Formal" eviction
proceedings are conducted pursuant to NRS 40.290 through NRS 40.420. "Formal"
eviction proceedings contemplate the filing of a complaint, an answer, conducting
discovery, and a formal "trial.,,18 They can include claims for damages by both sides.
"Formal" evictions can either be initiated by the landlord in the first instance, or, where a
summary eviction has been commenced, and the tenant establishes a legal defense at the
hearing, the court must then order the parties to proceed under those statutes.19
When Judge Sferrazza continued the October 13,2011 hearing, he misspoke
and called the second hearing a "trial." That same word, "trial," was entered into
the court's order.20 Coughlin has seized upon the word "trial" to argue that he
should have been afforded some further procedural protections of the "formal"
eviction proceedings (mainly, delay). This argument is nonsense.21 The only way the
court could have ordered the parties to proceed with a "formal" eviction is in the

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event it found that Coughlin had raised a legal defense to the summary eviction.22
Here, it found the opposite.
In ruling from the bench (when?), the court explained more than once that the
purpose of the October 25, 2011 proceeding was to allow Coughlin another opportunity to
substantiate the defenses he had alleged at the first hearing, because he had not yet done
so. 23 The court's order reflects this, in that it required Coughlin to deposit the withheld
rent if he (Coughlin) wished to have another opportunity to prove up his habitability
defenses. If he failed to post the rent, the eviction would be granted, because he had not
established a legal defense as required by NRS 40.253(6). The court's inadvertent use
of the word "trial" did not somehow take the case out of the summary proceedings, nor
could it have, and any argument that it did exalts form over substance and ignores the
clear purpose of the order.24 (NOTE: actually, the 10/13/11 Order, both as rendered from
the bench and as reduced to writing in the 10/13/11 "Eviction Decision and Order" make
clear that "the matter will be set for a trial" on 10/25/11 to allow Coughlin to
"substantiate" his habitability claims, with "substantiating" involving putting on evidence
to establish facts, something not at all involved in determining whether there is "no legal
defense" a la NRS 40.253 Coughlin knew the October 25, 2011 hearing was merely a
continuation of the first hearing. He knew that there had not been any formal
complaint filed. (NOTE: actually there was an extended coercive discourse between
Judge Sferrazza on just this issue on 10/25/11, where Judge Sferrazza resorted to
threatening to require Coughlin to deposit more rent escrow (the full rent for November)
on 11/1/11 should Coughlin persist in insisting on being afforded 20 days to file an
Answer to a Complaint upon being served such along with a Summons pursuant to
NJCRCP 109 and the dictates of NRS 40.253(6) ("If the court determines that there is a
legal defense as to the alleged unlawful detainer, the court shall refuse to grant either party
any relief, and, except as otherwise provided in this subsection, shall require that any
further proceedings be conducted pursuant to NRS 40.290 to 40.420, inclusive" (the
plenary trial section of NRS Chapter 40, commisserate with an application of NJCRCP 3
to 89, to the extent they do not conflict, per NJCRPC 81) where such requires that, upon
Judge Sferrazza making the finding that Coughlin had established a "legal defense"
(whether Coughlin "substantiated" a "genuine issue of material fact" or not is irrelevant to
the analysis under Nevada's statutory possessory proceedings, as such are merely
"analogous" to NRCP 56(c) per Anvui)(.There is not one in the record. He recognized, and
argued repeatedly, that all he had to do to defeat the summary eviction was establish a
material factual dispute for trial. In fact, he argues as much in the "statement of facts and
law" he purports to incorporate in his first notice of appea1.25 Coughlin did not explain
how he could have possibly been prejudiced by the court's misstatement, so it is of no
consequence.
As to the rent deposit, NRS 118A.355 specifically provides that "[a] tenant does
not have a defense to an eviction under paragraph (d) ofsubsection 1 unless the tenant has
deposited the withheld rentinto an escrow account pursuant to this subsection." Coughlin
was attempting to set up a defense based on "habitability".26 He had withheld rent in the
process, while purporting to invoke that statute.27 Even though the eviction proceeding
was for "no-cause," and not expressly based on Coughlin's failure to pay rent, the court
was correct to require him to deposit what he claimed he had withheld, in order to proceed
with his defense. The statute is plain on its face, and makes logical sense, as well. If

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Coughlin did not have the rent, and failed to prove his case, the court has, in effect,
improperly enjoined the landlord's use of his property. In any event, the October 13,2011
order was not an appealable order under NJCRCP 72A. For that reason, it is not properly
at issue here. Itis also moot, since the court eventually returned Coughlin's deposit to him,
as discussed further, below.
2. Not finding any ambiguity in the lease regarding "weeds"
One "habitability" item alleged by Coughlin was that weeds were growing in the
yard. The court found that maintenance of the surrounding grounds, including any weeds,
were Coughlin's responsibility under paragraph 22 of the Lease.28 That paragraph
provides in part that "Tenant will irrigate and maintain any surrounding grounds, including
lawns and shrubbery, if they are for the Tenant's exclusive use."29 It is undisputed that the
yard at the property was for Coughlin's exclusive use. The Lease is unambiguous, and the
court's finding was correct. Moreover, "weeds" do not constitute a "habitability" issue
under NRS 118A.290, in any event, and Coughlin never presented any evidencex that they
did, or that he complied with the statutory protocol for withholding, or had any right to
withhold, any rent for that, or any other alleged "habitability" issue. 30 (NOTE: note true,
where Couglin put on evidence that a section of the Reno Municipal Code prohibits such
weeds growing beyond 8 inches in height, and where Merliss himself waiver any extent to
which Judge Sferrazza's interpretation of the lease places such a burden on Coughlin to
weed the property, in addition, Coughlin's complaints as to the weed's bled into the
complaints to Merliss of a violation of a specific criminal statute (larceny, destruction of
property, etc.) incident to Green Action Lawn Services approach on May 23rd, 2011,
which Coughlin promptly wrote to Merliss complaining of, and only upon Coughlin
asserting both his write to a set-off of such damages pursuant to Paragraph 28 of the lease,
in addition to the set-off for such allowable under NRS 118A.380, or .490, or .355, or .
280, or .290)
3. Granting a no-cause summary eviction against a "commercial" tenant
Coughlin now argues that he was a "commercial" tenant, and therefore not subject
to summary eviction. He firstxi raised this argument in his "Opposition to Motion for Order
to Show Cause," which he filed on December 5, 2011, six weeks after the eviction was
granted. 31 Merliss addressed it in his reply filed the following day.32 First, Coughlin
has the law wrong. Summary evictions are available against a tenant of any property that
is subject to NRS Chapter 118A, which Merliss' property unquestionably was. 33 Second,
Coughlin affirmatively waived any argument that NRS Chapter 118A does not apply by
basing his entire defense (retaliation/habitability) on what he alleged were violations of
that chapter.34 Moreover, because the court adopted Coughlin's position and ruled on that
basis, he is judicially estopped from changing his theory now.35 Additionally, since
Coughlin never timely raised the argument below, it cannot form the basis for any relief
on appeal.36 In any event, Coughlin has not cited to anywhere in the ROA that would
support this new argument, and neither this Court nor the court below are or were
obligated to sift through the record in search of some fact which might support his
claim.37 Finally, even if Coughlin were running one or more unlicensed businesses out oft
he property, he does not explain how that would take this matter out of NRS Chapter
l18A.
4. Not holding a hearing on Coughlin's motion to contest personal property
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The FFCL&O was entered on October 27, 2011. Coughlin's first notice of appeal
was filed on November 3, 2011. Coughlin filed his first motion to contest personal
property lien on November 16, 2011. 38 NRS 40.253(8) provides that a hearing on that
motion must be set within 10 days after the motion is filed. However, Coughlin refused to
cooperate with court staff to set the hearing he requested, so it did not take place within
10 days. 39 Then, on November 23, 2011, Coughlin inexplicably filed another notice of
appeal. 40 What is important for this court's purposes is that neither notice of appeal
identifies any perceived error regarding the court's procedure in setting a hearing on
that collateral matter. Nor is such an "issue" appealable under NJCRCP 72A. As such,
this "issue" is inappropriate for the court's consideration here. 41 41. Reno Newspapers,
Inc.
5. Not granting Coughlin a stay
Coughlin was granted in forma pauperis ("IFP") status by the Reno Justice Court
on October 6, 2011.42 IFP status only applies to the trial level of litigation, not to
appeals. 43 Accordingly, if he wished to stay the enforcement of the FFCL&O and stop
the lockout, he was required to post a supersedeas bond, and obtain an order granting a
stay, before the lockout occurred.
As to the bond requirement, since this case was not a "formal" eviction, NJCRCP
73A(a)(1)
(4) do not apply. Instead, this case falls under the "catchall" provision at the end of
subsection (a) of that Rule, which provides in pertinent part "In cases not provided forin
(1), (2), (3) or (4) above, the giving ofan appeal bond, under the provisions of Rule 73,
shall stay proceedings in the court below upon the judgment or order appealed from ...
except where the appellate court may otherwise direct upon such terms as it may in its
discretion impose.,,44 NJCRCP 73 provides that "The bond or equivalent security shall be
in the sum or value of $250 unless the justice court fixes a different amount." (Emphasis
added). NRS 40.385(1) provides that a stay may be obtained by posting a bond in the
amount of $250.00 with the trial court.
Coughlin deposited $2,275 with the court pursuant to NRS 1 18A.355 and the court's order
ofOctober 13,2011. He orally moved the court for a stay ofthe eviction at the end ofthe
October 25, 2011 hearing, but did not cite any authority for his request. Accordingly, that
motion was denied.45 Thus, although the court ordered that Coughlin's deposit would
serve as his appeal bond, it denied a stay because Coughlin did not provide the court with
any basis to grant one, as was his legal responsibility. Then, at Coughlin's specific request,
the court held an emergency hearing on November 7,2011, where it amended the
FFCL&O and returned all sums on deposit to Coughlin, as he was clamoring. The court
then set the supersedeas bond at $2,700.00, as it was entitled to do.46 Coughlin now
argues that he should have been granted a stay ofthe eviction because he had funds on
deposit with the court at the time of the lockout. Even if he would have been entitled to
that relief, that position is inconsistent with his prior demands that all of his deposit be
returned to him, and he is judicially estopped from arguing it now.47 IfCoughlin wanted to
apply those funds to a super-sedeas bond under
JCRCP 73A or NRS 40.385, he should have either made that request at the October 25,
2011 hearing when the eviction was announced, or sometime between that hearing and the
lockout a week later. He never did so. In fact, he did just the opposite. When Coughlin
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back49, the lockout had not even occurred. That confirms that Coughlin had no intention
ofposting a bond. or applying those funds in order to obtain a stay. He cannot be heard to
argue otherwise now. Then, after he received his deposit back, he did not deposit any
additional funds with the court until on or about December 8, 2011 when he finally paid
the filing fee to perfect his appeal. Thereafter, on December 14, 2011, he posted $250.00
for his appeal bond, and $1.00 for his "supersedeas bond" (which sums he has
subsequently moved to have returned to him).50 By then, his request for a stay had been
moot for approximately six weeks.
6. Sheriff's removal oftenant "within 24 hours ofreceipt ofthe Order."
Coughlin tries to imply some sort of wrongdoing in relation to the lockout in this case on
page 1 ofhis second opening brief. But he does not inform the court to which "order" he is
referring that provided for a lockout "within 24 hours," or what, exactly, his argument is.
51 In this case, the court announced the eviction at the hearing on October 25, 2011.52
That eviction was not effective until after
5 :00 p.m. on October 31, 2011, six days later. This was confirmed in the FFCL&O signed
by the court on October 27, 2011. Coughlin was locked out on November 1,2011. This
"argument" is frivolous, unsupporte , nonsenslca ,an cannot 10rm t e aSls lOr any re Ie ere.
7. The trial Court's Application ofNRS 118A.490
Coughlin complains that it was reversible error for the "trial court" to apply NRS
118A.490. He does not cite to anywhere in the ROA to support his allegation that that
statute was ever applied by the court.53 In fact, it never was. The justice court applied
NRS 118A.355(5). This "argument" is of no moment.
8. The Security Deposit.
Coughlin alleges that Merliss has not returned or accounted for the security deposit under
the Lease. He has not cited to anywhere in the ROA to substantiate that allegation. 54 He
does not explain how the security deposit has anything to do with the underlying no-cause
eviction, or how the lower court erred in relation to it.55 Coughlin wants to discuss what
he thinks is a claim for damages, but neither this Court nor the court below have or had
jurisdiction to even consider the matter. 56
V. CONCLUSION: Despite two opportunities to do so, Coughlin failed to meet his burden
below to introduce, by affidavit or other admissible evidence, specific facts that show a
genuine issue of material fact. As such, the justice court properly granted the summary
eviction based on the evidence before it; namely, the Lease, the statutory notices served by
Merliss, and the testimony adduced at the hearings. Coughlin has not met his burden here
to show that any ofthe court's findings were clearly erroneous and not based on substantial
evidence. The "arguments" he presents in his briefs are nonsensical, and,. for the most
part, untimely, not properly preserved or before this court, and derived from unappealable
activity below. None of Coughlin's arguments are supported by any citation to the record.
As such, he has not given this court any evidentiary or legal basis to overturn any ruling
by the lower court. What Coughlin really wants to do is relitigate the case here, which is
not permitted. Coughlin is not entitled to any relief, and his appeal must be dismissed.
WHEREFORE, Merliss prays that Coughlin take nothing by way of his appeal;
that same be dismissed in its entirety; and that the judgment of the lower court, including
its order of December 27, 2011, be affirmed; that Merliss be awarded his fees and costs
of this appeal in accordance with NRS 69.050; that Coughlin be held in contempt of court
as prayed for in Merliss' motion for order to show cause, filed herein on January 20, 2012;

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and for such other, further and additional reliefas seems just to the court in the premises.
/s/ Casey D. Baker 2/24/12
ENDNOTES
1. See FFCL&O at 1
2. NRS 40.253(6). FFCL&O at 4, ,3.
3. See FFCL&O at 3,,9 et seq. See, also, ROA, Vol. I, pp. 238-266; ROA, Vol. V, pp. 194198.
4. NRS 40.253(6).
5. ROA, Vol.l, p. 153.
6. ROA Vol. III, pp. 229-233.
7. ROA, Vol. III, pp. 18-33.
8. Anvui, LLC v_ G.L. Dragon, LLC, 123 Nev. 212, 215,163 P.3d 405 (2007).
9.Torrealba v. Kesmitis, 124 Nev. 95, 178 P.3d 716 (2008).
10. NJCRCP 76A.
11. Gibellini v. Klindt, 110 Nev. 1201, 1204, 885 P.2d 540 (1994) (emphasis added).
12. NJCRCP 72( c).
13. Reno Newspapers, Inc. v. Bibb, 76 Nev. 332, 335, 353 P.2d 458 (1960).
14. Please see Merliss' counter-motion to strike excess pages, filed herein on February
9,2012. If the court is going to consider anything beyond the first five pages filed by
Coughlin, Merliss specifically requests leave to file a supplemental brief to meet those
arguments.
15. See NRAP 28(a)(8) and (e). See also, Weddell v. Stewart, 127 Nev. Adv. Op. 58,261
P.3d 1080, 1084 (Sept. 29,2011) (" ...it is imperative that the parties follow the applicable
procedural rules and that they comply in a timely fashion with [the court's] directives.");
and Smith v. Emery, 109 Nev. 737, 743, 856 P.2d 1386 (1993).
16. Cf., Schuck v. Signature Flight Support of Nevada, Inc., 126 Nev. _ (Adv.Op. 42),245
P.3d 542,544-545 (Nov. 4, 2010) (the court is "not obligated to wade through and search
the entire record for some specific facts which might support the nonmoving party's
claim.") Cf., NJCRCP 74(b).
17. Cf., NJCRCP 74(b).
18. Id.
19 See NRS 40.253(6).
20. ROA, Vol. I, p. 153.
21. See, NJCRCP 104 ("Prior to the holding of a hearing for summary eviction, the justice
shall determine the method of service of notice of the hearing on both parties.")
22. NRS 40.253(6).
23. Coughlin's unexplained and unexcused refusal to pay for a transcript makes it
impossible to cite Judge Sferrazza's statements with precision.
24. Accord, Lee v. GNLV Corp., 116 Nev. 424,427,996 P.2d 416 (2000) (the important
inquiry is on "what the order or judgment actually does, not on what it is called.")
(emphasis in original).
25. ROA, Vol. III, pp. 230-233.
26. NRS 118A.355(l)(d). ROA, Vol. I, pp. 238-266.
27. Id.

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28. See FFLC&O at ~'11-11.1.

29. EXHIBIT 6 at 2, ,22.
30. FFCL&O at '~12-12.l.
31. ROA, Vol. IV, pp. 253-261.
32. See, "Supplemental Justice Court Appeal Proceedings," at 2, filed herein on January 4,
2012. Merliss' reply is identified as item number 4. For reasons unknown, copies ofthose
documents were not made available to Merliss through the court's electronic filing system.
33. NRS 40.254.
34. See FFCL&O beginning at ,9. See, also, ROA, Vol. I, pp. 238-266.
35. Marcuse v. Del Webb Communities, 123Nev. 278, 163 P.3d 462 (2007).
36. Schuck. The lower court recognized as much at the December 20,2011 hearing on
Coughlin's motion to contest personal property lien. For that hearing, Merliss had
subpoenaed Darlene Sharpe, the real estate agent who had facilitated the rental ofthe
property to Coughlin, to testify in the event the court was going to allow Coughlin to
belatedly argue this issue. ROA, Vol. VI, p.183. At that hearing, Judge Sferrazza
appropriately recognized that Coughlin was improperly attempting to relitigate the
eviction based on previously unraised arguments, and did not let the parties address or
present any evidence on the matter. Ms. Sharpe was prepared to testify that (1) Coughlin
never mentioned that he was an attorney, or that he had either a "law practice" or a
"mattress business,"
(2) that Coughlin had represented himself on his rental application as a "self-employed
researcher," and (3) that Coughlin had surreptitiously altered the lease to allow for
"commercial" use of the property. See, Reply in Support of Motion for Order to Show
Cause, identified as item number 4 in the Supplemental Justice Court Appeal Proceedings,
filed herein on January 4, 2012.
37. Schuck.
38. ROA, Vol. III, pp. 153-160.
39. ROA, Vol. IV, pp.2, 22-23.
40. ROA, Vol. III, p. 5.
41. Reno Newspapers, Inc.
42. ROA, Vol. I, pp. 274-275.
43 NRS 12:015. Casper v. Huber, 85 Nev. 474,456 P.2d 436 (1969).
44 NJCRCP 73A(a).
45 ROA, Vol. II, pp. 85,2.
46. ROA, Vol III, pp. 218-219; Vol. II, pp. 4,27.
47. Marcuse.
48. ROA, Vol. II, p. 3.
49. ROA, Vol. II, pp. 4, 27
50. ROA, Vol. IV, pp. 210-211.
51. Cf., Schuck.
52. ROA, Vol. II, p. 85.
53. Cf., Schuck
54. Cf., Schuck.
55. Cf., Gibellini.
56. NJCRCP 76A, Reno Newspaper, Inc.; NRS 40.253(6).

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The first notice of appeal that Mr. Coughlin filed was February 15, 2012,
during the pendency of a tolling motion, and as such, that Notice of Appeal
becomes effective upon such tolling motion being disposed of. But, more
important than that is the fact that the stay required by NRS 40.385 is not
discretionary (see Venetian v. Two Roads transcript for insight only). It was
untimely, is now moot, and must be dismissed. The second notice of appeal, filed
July 30, 2012, was not timely and must be dismissed for lack of jurisdiction.
Appellant has not only provided the Respondnet teh bond, or other security for
costs, as required by NRAP 7, but filed a Motion to Proceed In Forma Pauperis as
to that bond should this Court view the Respondent's failure to return, account for,
or timely itemized the security deposit that was never returned to Coughlin as
insufficient for purposes of an off-set of any bond under NRAP 7 (particularly
given the fact that the RJC continues to refuse to release to Coughlin the $250
supersedeas bond Coughlin as finally able to manage to get the RJC to accept on
12/22/11 in 1708, where previous attempts to so deposit such (beyond such a
deposit being accomplished upon Judge Sferrazza announcing that the $2,275
Couglin had previously provided the RJC (which, combined with Coughlin's filing
a Notice of Appeal in the trial court in 1708 on 10/18/11 more than perfected
Coughlin's appeal and divested the RJC of jurisdiction, at least as much as
Coughlin's filing a Notice of Appeal with the District Court in CV11-03051 on
10/19/11 (and had a submission refused for filing by the 2JDC on 10/26/11 in
CV11-03051 , which the 2JDC was required to apprise the RJC of (and did), which
makes all occurring in CV11-03628 arguably void for lack of jurisdiction. Finally,
Mr. Coughlin mistakenly thinks he is appealing the district court's decision denying
his appeal from an eviction order in Reno Justice Court.
Coughlin will do his best to get his meta-ROA filed in both this matter,
61383, and the in the appeal of the 12/14/12 FOFCOL in 62337 (while that
FOFCOL is not titled as a decision sufficient to invoked SCR 105(3), it has been
treated as such by Clerk Lindeman, and the SBNs Clerk of Court Laura Peters
persists in having Coughlin prosecuted by her ever willing accomplices, er, the
Reno City Attorney's Officer (Dan Wong, Esq.) for Coughlin's allegedly violating a
Workplace Harassment TPO/EPO the SBN obtained where Coughlin is alleged to
have attempted to file documents in the formal disciplinary matter stemming from
Respondent's attorney, Richard G. Hill, Esq.'s purported 1/14/12 emailed, but
unsigned, unsworn grievance to his friend from their Mislner v. Carstarphen days,
Asst. Bar. Counsel Patrick O. King, Esq., within the 10 judicial days in which one
must, pursuant to the application of NRCP 52 and 59 in light of the dictates of SCR
105(4) and SCR 119(3), so file such motions (and and amendment or supplemental
thereto under NRCP 15) in NG12-0204, 0434, 0435. Due to the fact that filing
Coughlin's meta-ROA, which is some 3,546 pages, comprising 15 volumes, over
some 192 MB would entail splitting such pdfs into approximately 300 different
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files to be uploaded, painstakingly, one by one (only to have this Court's Eflex staff
then restack such individaul filings in all likelihood) in light of the Eflex
restrictions that one may only upload pdf's of 4 mb or less at a time, there is a
chance Coughlin may be unable to so file this meta-ROA in a timely manner, but it
is available for download, and Coughlin wishes for any filing of such to be made
publicly accesible as an exhibit to one of his filings, rather than treated in the
typical manner that ROA's are handled, which is to say, they are not accesible or
viewable to the public).
Subject: Request to FTP
From: Zach Coughlin (zachcoughlin@hotmail.com)
Sent: Thu 5/09/13 3:02 PM
To: tlindeman@nvcourts.nv.gov (tlindeman@nvcourts.nv.gov);
lcastillo@nvcourts.nv.gov (lcastillo@nvcourts.nv.gov)
https://skydrive.live.com/redir?resid=43084638F32F5F28!7933

Dear Clerk Lindeman,

I respectfully request to have the attached record placed for public review in 61383
and 62337
Sincerely,
Zachary Barker Coughlin
FACTS
The facts pertaining to this motion are:
1. This eviction case began in Reno Justice Court. NRS4.240 Entries in
docket prima facie evidence of facts (see Coughlin's meta-ROA (MROA) pages 1
to 9, with empahsis on entires for 10/17/11, 10/19/11, 11/23/11, 12/8/12, 12/12/12,
12/14/12, and 12/22/12 in 1708 on pages 8 to 9 detailing the various attempts to
pay, and payment of, by Coughlin the $250 required under NRS 40.385, upon
which, one is entitled to a mandatory stay). (see . (EXHIBIT 1 to Hill's Motion to
Dismiss (page 12 of that 191 page filing) contains a cover page of Coughlin's
10/6/11 Tenant's Answer to 30 Day No Cause Eviction etc. that bares the wrong
case number, Rev11-001492 (see page 169 of Coughlin's attempt at meta-ROA that
comprises an attempt to include all filings from all cases connected to 61383 in
some material way, which has the actual file stamping and RJC's interlineation of
the correct case number Rev11-1708...noting that the initial case in Rev11-1492
was a non-pay summary eviction brought by Respondent which Respondent gave
up on, making a key tactical error in light of the per se retaliation (under NRS
118A.510(e)) attendant to Coughlin's defending based upon habitability issues in
1492 by way of his 9/7/11 Tenant's Answer therein, and 9/19/11 Amended Tenant's
Answer, and arguments at the summary eviction proceeding on 9/27/11,
whereupon, in retaliation, Respondent thereafter posted a 5 day No Cause Eviction
Notice on 9/27/11, and the interplay between Respondent's argument in his 9/26/11
REPLY IN SUPPORT OF LANDLORD'S MOTION TO STRIKE TENANT'S
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MOTION FOR SANCTIONS, etc in 1492 (see page 128 of Coughlin's 3,540
page meta-ROA) and the completely contary arguments Respondent is forced to
make where attempting to assert that no vilation of NRS 118A.510 took place in
1708 in light of 1492. It is particularly rich in restrospect, where in Responden'ts
9/26/11 filing its all what, we didn't file nothin', no way NJCRCP 11 applies to us
merely postin' this or that notice (Appellant is paraphrasing cartoonishly here)
versus the inevitable argument Respondent will now make of oh, no way, our
posting a 30 Day Notice of Termination on 8/22/11 necessarily beats in time
Appellant's filing a Tenant's Answer in a differe judicial or administrative
proceeding sufficient to, at the very least, rebut any inference of retaliation in 1708
attendant to the extreme temporal proximity of Appellant's so insitut(ing) or
defed(ing) against just such a proceeding in 1492.
2. While Respondnet writes On October 27, 2011, Reno Justice Court
issued an eviction order he fails to mention the 10/25/11 Eviction Order and
Decision also entered therein. Further, while Respondent notes that On
November 3, 2011, Coughlin filed a notice of appeal to the Second Judicial District
Court (curiously a review of that 11/3/11 NOA reveals a patent deficiency therein
that one would think $60,000 worth of attorney's fees could have caught...but then,
catching Coughlin's failure to identify, by date and name, the ruling which he
sought to appeal (not to mentioned to use of the term Judgment is, necessarily,
ineffective given Judge Sferrazza's insistence on 10/25/11 that it was not a trial
sufficient to accord Coughlin the procedural protection of SCR 109, etc., or the
right to bring counterclaims, though Respondent was still able to conduct
discovery, curiously, and, for a short while, litigate rent owed and be awarded the
rent escrow desposit required in a No Cause summary eviction under some
extremely attenuated application of NRS 118A.355(5) where, clearly, NRS
118A.360 was invoked to whatever extent the RJC allowed the Respondent to
avoid the messy task of actually claiming some rent was owed). Consider Hill's
own purported writing to the SBN of 1/14/12 where it reads: 11. Another example
of his incompetence is that he does not understand what orders are, and are not,
appealable. He does not understand that filing a notice of appeal divests the lower
court of jurisdiction. I am confident that once you look into this matter, you will
agree that Mr. Coughlin should not be practicing law. He is a danger to the
community. Sincerely, /S/ Richard G. Hill). Apparently, Hill does not really
believe the RJC was divested of jurisdiction upon Coughlin filing a Notice of
Appeal in 1708 on 10/19/11, or another one in CV11-03051 on 10/19/11, but only
makes such arguments to Bar Counsel when lodging a grievance against
Coughlin.xii
3. On October 19th, 2011, Couglin filed a Notice of Appeal in the 2JDC in light of
the RJC's refusal to appropriately process Coughlin's Notice of Appeal submitted to
the RJC on 10/18/11 (filed therein on 10/19/11) of the 10/13/11 Eviction Decision
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and Order, both of which divested the RJC of jurisdiction to do pretty much any of
that which was addressed in CV11-03628. On December 30, 2011, Coughlin filed
a motion in the district court (see pages 62, 63, and 68 of Hill's 191 page Motion to
Dismiss filing of 4/24/13, wherein that filing by Coughlin in 03628 lays out for
Judge Flanagan the same NRS 40.385 mandatory stay Couglin was entitled to that
Coughlin previously set out, in specific statutory citation to the RJC by way of an
11/30/11 fax that the RJC file stamped 12/5/12 in Coughlin's filing in of that date in
1708) seeking a temporary restraining order against Merliss, as Hill misleading
puts it where such filing is titled, in the alternative, Motion for Stay. district
court declined to issue the preliminary injunction requested by Coughlin to restrain
Merliss from removing abandoned personal property from Coughlin's former
residence.
Effect of Taking Appeal; Supersedeas or Stay A. Effect of Taking Appeal
upon Judgment Appealed from and Jurisdiction of Trial Court 1. In General Topic
Summary Correlation Table References 392. Interlocutory appeals Appeal and
Error k449 West's Key Number Digest, Federal Courts k682 The taking of an
interlocutory appeal generally deprives the trial court of the authority to act
regarding the matter that is the subject of the appeal.[FN1] However, except where
the appeal concerns the very authority of the lower court to adjudicate the
controversy,[FN2] appeal of an interlocutory order does not divest the trial court of
all jurisdiction in a case, but rather restrains the trial court from entering any order
which would change or modify the order on appeal or which would have the effect
of interfering with the review of that order.[FN3] [FN1] Florida Patient's
Compensation Fund v. Caduceus Self Ins. Fund, 543 So. 2d 403 (Fla. Dist. Ct. App.
4th Dist. 1989) (trial court could not properly enter partial summary judgment on
the issue of liability while an appellate court was considering the same issue on
interlocutory appeal). [FN2] Baron v. Best Buy Co., Inc., 79 F. Supp. 2d 1350 (S.D.
Fla. 1999). [FN3] Witters v. Hicks, 338 Ill. App. 3d 751, 273 Ill. Dec. 863, 790
N.E.2d 5 (5th Dist. 2003).
On February 15, 2012, Coughlin filed a notice of appeal in the district
xiii
court. It was not five days late. Coughlin appealed " ... all the various orders
dismissing this case, including but not limited to those entered January 13, 2012.".
Further, Couglin filed in 03628, on 7/24/12, a Notice of Appeal that Hill seems to
have missed entirely. (see its appearance in the MROA, which is conveniently
arranged chronologically and has painstakingly undone the terrible presentation of
the trial court ROA by the RJC (insufficient dpi, not bates stamped, not in
chronological order, in basically, take a file from a law firm, all most recent filings
on top, etc., and feed it to a copier-style, at 75 dpi, and missing extremely key
filings by Coughlin, including his 12/26/11 Notice of Appeal to what was
definately not a Consent Order of 12/21/11, and Coughlin's 12/22/11 Notice of
Posting Supersedeas Bond Where is My Stay?, and and 12/22/11 Notice of Posting
Supersedeas Bond (on a court approved form).
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an indication that Coughlin posted security for costs with his notice of appeal as
required by NRAP 7 incident to the notatio of Couglin's 9/15/12 and 11/9/12
filings therein (see MROA).
Hill wrote: On March 30, 2012, the district court denied Coughlin's appeal
from the eviction order issued by Reno Justice Court. See EXHIBIT 7. Notice of
entry was filed and electronically served on Coughlin that same day. See
EXHIBITS 8 and 9. What is not all that clear is whether all of the tolling Motions
somehow connected to that 3/30/12 Order in 03628 have been disposed of.
Regardless, Coughlin requests that this Court included amongst the Orders
Coughlin is appealing in this matter each and every Order entered by Judge
Flanagan, save the 3/27/12 Order Denying Hill's Second Motion for Order to Show
Cause (which really should have indicated to Hill and Baker that their attachign
Activity Reports seeking work done in connection with that 1/21/12 Second
Motion for Order to Show Cause was not an appropriate submission for attorney's
fees given the law of the case attendant to that 3/27/12 Order).
Curiously, Hill gets more careful where he writes On June 25, 2012, the
district court granted Merliss' motion for fees against Coughlin. See EXHIBIT 10.
The SBN's Asst Bar Counsel King (or the publicly available filings in 62337) must
have tipped Hill off that the jig is up with respect to the conspiracy between Hill
and King to paint the 6/25/12 Order as a sanction awarding some $42K in
attorney's fees against Coughlin, given the express indications that such 6/25/12
Order was NOT a sanction, as admitted to by Judge Flanagan in his 8/28/12 Order
in 03628, which King probably wishes he had not emailed to Coughlin on 8/30/12
given his fraudulent presentation of such as a sanction incident to his direct
examination of Hill of 11/14/12 in the matter on appeal in 62337.
Hill admits Coughlin's notice of appeal was due no later than July 26, but
apparently the $60K Hill has charged Merliss doesn't includ Hill reading the title of
Coughlin's 7/24/12 filing in 03628, which clearly identifies itself as a Notice of
Appeal. Coughlin filed that on 7/24/12 two days after getting out of an 18 day
stay in Washoe County Jail incident to the constant harassment Coughlin has faced
from the Reno Police Department, Reno Justice Court, Reno City Attorney's Office
(that time a 7/3/12 custodial arrest for either some minor traffic violation of a
trumped up disturbing the peace... Coughlin has been wrongfully arrested at least
15 times since 8/20/11 and wrongfully evicted at least 9 times since 11/1/11, all in
Reno).
On April 24, 2013, this court consolidated Coughlin's two pending appeals,
which makes the earlier submitted Appellant's Brief by Coughlin not tailored to that
which this matter now addresses, to which Coughlin requests and opportunity to
resubmit another Brief.
Coughlin's "opening brief," document number 2013-12020, is almost
exclusively addressed to seeking review of the district court's decision denying his
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appeal from Reno Justice Court. It is apparent that he thinks he is appealing the
ruling on the merits of the eviction. Coughlin's Case Appeal Statement and
other filings therein (including his 2/15/12 Notice of Appeal) arguably bring within
the subject matter considered in this appeal the 3/30/12 Order in 03628, and any
NRAP 3 or Article 6 Sec 6 argument's against such inclusion shoudl be dismissed
in favor of judicial economy given the Mandamus action that would necessarily
follow, and the fact that there are exceptions to such authority which would allow
this court to entertain such matters.
ANALYSIS
I. . NRAP 7 does not requires a dismissal here, especially where the RJC required
Couglin pay into it $250.00 as an appeal bond on 12/12/11 (but failed to accord a
stay...seemingly the RJC was still treating 1708 as a Trial with a Judgment
being appealed, and therein applying somethign from NJCRCP 73 or 76 or some
other NJCRCP 3 to 86 that NJCRCP Rule 2 makes clear does nto apply to
summary eviction actions, to which, neither does, NRS 40.380..., so, beyond
Respondent failing to follow Nevada law as to the $700 security deposit/cleaning
fee (Coughlin arguably is entitled to all of it given the choice of cleaning permitted
by him under the lease and the obstructionist tactics of Hill and Baker and failure
to, within 30 days, itemize and account for such deposit/cleaning fee, and the res
judicata effect of their dropping their nonpayment summary eviction in 1492).
Regardless, Hill's invocatio of NEFCR 9(t) fails to account for NRCP 6(e)'s
three days added even for electronic service, and NRS 40.400 would appear to
make applicable NRAP, and there is a mere FAQ page on this Court's website to
purports to, at most, speak to such application, but certainly, would not appear to be
precedent. Further, NRAP specifically makes applicable such rules only to appeals
from District Courts, so...
III. The appeal of the denial of an injunction was timely and is not moot, and even
if it was, this situation is exactly the sort to which all the exceptions to the mootness
doctrine apply.xiv
Coughlin needs more time to prepare this Opposition, especially in light of
the circumstances incident to the SBN's fraudulent workplace harassment
TPO/EPO, the RJC's negligent issuance of such, and the Reno City Attorney's
abominable maintenance of two different prosecutions (RMC Judge Dilworth
striking from the Record Coughlin's 5/1/13 Motion to Quash, Dismiss, etc. therein
despite the analogy presented by WDCR 18 is troubling, but at least his moving the
trial out to August 2013 is a big step up fron RCA Chief Wong's attempt to fast
track it for 5/23/12,, especially where Wong has still yet to serve Coughlin the
discovery and police reports he has requested and made Motion for. Okease see
attached exhibits and the novel legal research, of a targeted variety attached in
printouts that are often of very small font given teh Washoe County District
Attorney's Office insists on enforcing a the county's contract with Westlaw won't
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allow for download or emailing the fruits of one's legal research, even where
utilized only for work product...but instead requires printing at 25 cents a page,
which beats the dollar a page charged for documents in court files (compared to 10
cents off pacer for federal filings, and compare efiler WCDA DDA Young being
provided the 804 page ROA in CR13-0614 where Coughlin was not).
a) The appeal was timely.
On February 15, 2012 (EXHIBIT 6), Coughlin initiated an interlocutory appeal of
the order entered January 11, 2012 (EXHIBIT 5), in which the court denied
Coughlin's request for a temporary restraining order and a preliminary injunction.
Coughlin's appeal of that order was not timely either. The notice of appeal was due
February 10, 2012, but was not filed until February 15, 2013, five late. Compare
EXHIBITS 17 and 18 (notice of entry filed and served January 11, 2012) with
EXHIBIT 6 (notice of appeal filed February 15,2012).
As is Coughlin's invariable practice, after the district court declined to grant the
requested injunction, Coughlin filed a motion to alter or amend the court's order,
relying on NRCP 52(b) and NRCP 59. See EXHIBIT 14. Coughlin mistakenly
believes that tactic enlarges his time to appeal. Merliss submits that the motion to
alter or amend was not timely, and did not invoke the tolling provision of NRAP
4(a)(4)(B) or (C), because NRCP 52(b) and NRCP 59 do not apply to an order
denying an injunction. Therefore, Coughlin's attempt to appeal the denial of his
requested injunction was also late, and it must be dismissed for lack of jurisdiction.
b) The appeal of the denial of injunctive relief is not moot.
The appeal of the denial of an injunction is not now moot because of subsequent
events. ndependence Party of Richmond County v. Graham, 413 F.3d 252, 256
(2nd Cir. 2005).
Mootness is a question of justiciability. This court does not render advisory
opinions. There must be an actual live controversy throughout the case, including
on any appeal. Subsequent events may render a case moot. Personhood Nevada v.
Bristol, 126 Nev. (Adv.Opin. 56) 245 P.3d 572,574 (2010). Coughlin hadIV. To the
extent is to the district court's this court has no
A review of Coughlin's opening brief reveals that he thinks his appeal(s) somehow
include areview of the district court's decision on the merits of his appeal from
Reno Justice Court.
The Nevada Constitution vests final appellate jurisdiction over decisions in the
justice courts in the district court. Nevada Constitution Art. 6 6. NRAP 3A(b) sets
forth what orders and acts by a district court are within the appellate jurisdiction of
this court. Unless authority is provided by a statute or a rule, this court has no
jurisdiction. Kokkos
v. Tsalikis, 91 Nev. 24, 25,530 P.2d 756 (1975). Here, to the extent that either of
Coughlin's notices of appeal could be

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construed to include the district court's order of March 30, 2012, denying
Coughlin's appeal from Reno Justice Court, this court has no appellate jurisdiction.
RELIEF
Under the circumstances, the court should immediately stay the briefing schedule.
The court should dismiss this entire consolidated appeal. Coughlin has not posted
the mandatory bond for costs on this appeal. The first notice of appeal was not
timely, and the question presented is now moot. The second notice of appeal was
not timely and must also be dismissed. Contrary to the focus and contrary of
Coughlin's opening brief, this court does not have appellate jurisdiction to review
the district court's decision on the merits of Coughlin's appeal to that court from
Reno Justice Court.
The briefing schedule in this case must be suspended until this motion and the
motion to strike Coughlin's appendix have been decided. Otherwise, Merliss will
incur needless fees and costs. WHEREFORE, respondent prays that this court stay
the briefing schedule; dismiss this entire case; that appellant, Zachary Coughlin, be
sanctioned; that respondent be awarded attorney's fees and costs pursuant to NRAP
38; and for such other, further and additional relief as seems just to the Court in the
premises.
Chief Justice Pickering's 4/24/13 Order in 60331 and 61383 reads: These
cases were both initially docketed in this court ,without payment of the requisite
filing fees. Docket No. 60331. was docketed. on February 29, 2012, and Docket
No. 61383 was docketed on July 31, 2012. On September 6, 2012, the filing fee
was paid in Docket No. 60331. Docket No. 61383 was dismissed on November 7,
2012, for failure to pay the filing fee. The notice of appeal in Docket No. 60331
referred to District Court Case No. CV11-01896 fn1 (fn1 This court notes that there
is currently an appeal pending in this court which is associated with that district
court case number. Coughlin v. Washoe Legal Services, Docket No. 60302.) but
when it was transmitted by the district court to this court, it was designated as being
an appeal from an order in District Court Case No.CVII-03628. The latter case
number is the case at issue in Docket No. 61383. Docket No. 60331 was
erroneously docketed, and is hereby administratively closed in favor of Docket No.
61383. The clerk of this court shall transfer all documents filed in Docket No.
60331 to Docket No. 61383.
Further, the filing fee paid in Docket No. 60331 shall be applied to Docket
No. 61383. Accordingly, appellant's motion for reconsideration in Docket No.
61383 is granted and that appeal is reinstated.
It is so ORDERED. /s/ Pickering, C.J.
AFFIRMATION Pursuant to NRS 239B.030
The undersigned does hereby affirm that the preceding document does not contain
the social security number of any person. DATED this of April, 2013.
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Please find attached herein the 7/24/12 Notice of Appeal in CV11-03628, which
would, even under the analysis you set out in your 4/24/13 Motion to Dismiss in
61383, be timely. If you agree to a stipulation to withdraw, at least to that part,
your motion to dismiss, please fax or email me such a signed stipulation should
your client wish that be done.
Please also note the 10/17/11 filing in Rev2011-1708 at page 6 (in addition to a
multitude of other instances of such defense being pled) specifically rebuts your
sworn testimony of 11/14/12 that alleged that Coughlin "failed to raise the issue in
the trial court" respecting the prohibition against utilizing the summary procedures
under NRS 40.253, by way of NRS 40.254 against a commercial tenant where such
summary eviction proceeds 0 from a 5 Day No Cause Notice. Additionally, NRS
118A.510's prohibition against bringing an "action for possession" where a tenant
has "defended against" such an action for possesion (such as Rev2011-001492)
where the tenant raised an issue of habitability (see Coughlin's 9/7/11 Tenant's
Answer and his 9/19/11 Amended Tenant's Answer) would seem to present a
jurisdictional prerequisite making void Judge Sferrazza's various eviction orders in
Rev11-001708, even more so than the 10/17/11 Order's failure to grant the
mandatory stay Coughlin sought as required under NRS 40.385 (see Venetian v
Two Roads, transcript of hearing attached as an exhibit to one of the filings
therein).
Hill attached as Exhibit 2 to his 4/24/13 instant Motion to Dismiss
Coughlin's 12/30/11 filing in CV11-03628, which at page 13 (and echoed again at
page 18) indicates:

22

The undersigned hereby deposited $250 with the Reno Justice Court, whereupon
NRS 40.385 requires a stay be granted, unless the RJC wants to say Coughlin is a
commercial tenant, in which case, a Summary Eviction Proceeding was
impermissible where only a No Cause Eviction Notice was filed. IF there is
ambiguity in the lease, summary judgment is not appropriate, issue of law and

23

fact not well suited to summary proceedings.

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Thereafter Coughlin, at page 14, copied and pasted the entirety of NRS
40.385 (the version in effect prior to October 1, 2011, which may have been an
error, should the newer version, which specifically invokes NRAP 8, apply to the
instant case. Regardless, Coughlin
CONCLUSION
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please reinstate the appeal and or grant ifp status or provide time to
submit a proper ifp as bar counsel clearly is gunning for a Panel Order that
entails Coughlin paying back this unconcionable attorney fee award prior to

reinstatement, and that is if Bar Counsel Pat King doesn't get his stated wish

to have Coughlin disbarred. Further, the District Court's 3/30/12 Order

should be added to this appeal given the circumstances, to whatever extent

8
9
10
11

Coughlin failed to file a timely notice of appeal thereto, as should the notice of
appeal of the justice court's 12/21/11 Order Resolving Coughlin's November
17th, 2011 Motion to Contest Personal Property Lien consdiering the RJC

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failed to file stamp in Coughlin's timely 12/26/11 notice of appeal thereto in rjc

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rev2011-001708, as the rjc did in another summary eviction from a

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commercial lease involving coughlin's former home law office in rjc rev2012-

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000374...further RMC Judge Nash Holmes has similarly refused to follow the

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rules on transmitting appeals in 11 TR 26800 ( a case whee Richard Hill had

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RMC Marshal Joel Harley violate courthouse sanctuary doctrine where

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Harley personally served Coughlin notice of the 3/23/12 order to show cause

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hearing in the district court appeal of this matter (and really, on October 19th,

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2011, Coughlin alreaqdy had a District court appeal in this matter in cv11-

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03126 or cv11-03051...thus making void the entire appeal in cv11-03628,

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perhaps).

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AFFIRMATION Pursuant to NRS 239B.030

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The undersigned does hereby affirm that the preceding document does not contain

the social security number of any person. The assertions herein are made, pursuant

to NRS 53.045 under penalty of perjury and based upon my first hand knowledge

of these matters, except to perhaps a very, very few aspects of a a very few

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assertions which are made upon information and belief.

Dated this November 17th, 2012,

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/s/ Zach Coughlin, signed

electronically

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Zach Coughlin, Esq.

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Appellant

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Proof of Service:

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On this date, I, Zach Coughlin electronically served a true and correct copy of the
foregoing document to all registered efilers, and to those whom are not I placed a
true and correct copy of the foregoing document in the usps mail on this date:

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Richard G. Hill, Esq.

Casey Baker, Esq.

Richard G. Hill, CHTD.

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Attorneys for Respondent Merliss

652 Forrest St.
Reno, NV 89509
DATED THIS: Dated this November 17th, 2012

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/s/ Zach Coughlin

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Zach Coughlin

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Appellant

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INDEX TO EXHIBITS:

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1. Exhibit 1: various relevant materials.

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11. ----Genuine issue of material fact, availability of remedy
Genuine issues of material fact existed as to whether prison officials afforded notice and an opportunity to
appeal to prisoner with respect to censorship of certain incoming and outgoing mail, precluding summary
judgment in favor of prison officials on prisoner's procedural due process claim. Witherow v. Crawford,
2006, 468 F.Supp.2d 1253, on reconsideration 2007 WL 2767206, adhered to 2007 WL 2509030, affirmed
339 Fed.Appx. 785, 2009 WL 2387251 , certiorari denied 130 S.Ct. 2107, 176 L.Ed.2d 736. Federal Civil
Procedure
2491.5
Genuine issue of material fact existed as to whether commercial general liability insurance policy provided
coverage for insured, a framing contractor, which required insurers to defend and indemnify insured in
underlying construction defect class action, precluding summary judgment on insured's claim against
insurers for breach of duty of good faith and fair dealing. Gary G. Day Constr. Co., Inc. v. Clarendon
America Ins. Co., 2006, 459 F.Supp.2d 1039. Federal Civil Procedure
2501
Genuine issue of material fact existed as to whether commercial general liability insurance policy provided
coverage for insured, a framing contractor, which required insurers to defend and indemnify insured in
underlying construction defect class action, precluding summary judgment on insured's breach of contract
claim against insurers. Gary G. Day Constr. Co., Inc.
v. Clarendon America Ins. Co., 2006, 459 F.Supp.2d 1039. Federal Civil Procedure
2501
Genuine issue of material fact existed as to whether accident and property damage occurred during
commercial general liability insurance policy's term, precluding summary judgment on insured's claim for
declaratory relief regarding insurer's duty to indemnify insured in underlying action. Gary G. Day Constr.
Co., Inc. v. Clarendon America Ins. Co., 2006, 459 F.Supp.2d 1039. Federal Civil Procedure
2501
Genuine issue of material fact as to whether mother's automobile was furnished for her son's regular use
precluded summary judgment in insurer's action seeking declaration that automobile did not fall within
scope of non-owned vehicle coverage under father's automobile policy. Allstate Ins. Co. v. Larimer, 2005,
433 F.Supp.2d 1195. Federal Civil Procedure 2501
Genuine issue of material fact remained whether prison officials breached duty to exercise ordinary care
when they released quadriplegic inmate to inmate's girlfriend at her trailer when they knew that girlfriend
had not prepared her trailer for inmate's special needs, such as wheelchair ramp and hospital bed, and that
girlfriend appeared to be physically incapable of adequately taking care of inmate, thus precluding summary
judgment in inmate's negligence action against prison officials. Butler ex rel. Biller v. Bayer, 2007, 168
P.3d 1055, 123 Nev.
450. Judgment
181(33)
A genuine issue of material fact exists, precluding summary judgment, when a reasonable jury could
return a verdict for the nonmoving party. Rules Civ.Proc., Rule 56(c). Kopicko v. Young, 1998, 971 P.2d
789, 114 Nev. 1333. Judgment
181(2)

The documents listed on the Appeal Receipt of the Supplemental to Justice Court
Appeal Proceedings filed on January 4, 2012 have now been received by the Second Judicial
District Court. The documents were filed into case CV11-03628 on Monday, April 1, 2013.
Thank you, Julie
Obviously, it is troubling the extent to which footnote 5 on page 5 of Judge Flanagan's
3/30/12 Order appears to seek to excuplate the RJC and its Clerks, etc. for the failure to set and
hold within 10 days of Couglhin's 11/16/11 Motion To Contest Personal Property lien purusant
to NRS 40.253(8), when viewed in conjunction with the admission by 2JDC Asst. Clerk of
Court Wise that the RJC did not, in fact, transmit the documents listed in the Appeal Receipt
of the 1/4/12 Supplmental in CV11-03628, particularly where one such document was a Notice
of Appeal of that 12/21/11 Order Resolving Motion to Contest Personal Property Lien. More
problematic still is the fact that, even had the documents listed in said Appeal Receipt
actually been transmitted, such would have failed to included the 12/22/11 filings by
Coughlin...the very one's Hill testified at the formal disciplinary hearing.
While WDCR Rule 19. Appeals from municipal and justice courts. ...4. In civil appeals
from the justice court, appellant shall file within 30 days after the filing of a notice of appeal a
written brief containing a statement of the errors committed in the justice court with
accompanying authorities which shall not exceed 5 pages. Within 20 days after the filing and
service of appellants brief, respondent shall file a written answering brief which shall not
exceed 5 pages is cited in Judge Flanagan's 1/6/12 Order for Briefing Schedule, such Order is
void given there is a specific statutory rememdy and rules attendant to appeals thereof in
appeals of summary evictions, makign NRAP 30, and 32 applicable (30 page page limit) under
NRS 40.400. Further, the de novo review required of such summary eviction order under
Anvui makes inappropriate any such 5 pages limitation.
xivAMJUR APPELLATE 602 VIII. Appellate Determinations B. Loss of Reviewability;
Mootness 3. Mootness b. Exceptions to Mootness Doctrine Topic Summary Correlation
Table References 602. Issues which are capable of repetition yet evade review West's Key
Number Digest West's Key Number Digest, Courts k30 West's Key Number Digest, Federal
Courts k12.1 A.L.R. Library Federal administrative orders as subject to judicial review
where such orders are capable of repetition, yet evading review, 66 A.L.R. Fed. 285 An
appeal is not rendered moot by a change of circumstances occurring during the pendency of
the litigation if the case is one which is capable of repetition, yet evades review.[FN1] The
application of this rule can well be illustrated by abortion cases, since the term of pregnancy
is so relatively short that a pregnancy will come to term before the usual appellate process is
completed; thus, if litigation involving pregnancy is to ever come before the higher appellate
courts, a flexible rule regarding mootness is required, and the capable of repetition, yet
evades review test is used.[FN2] In the absence of a class action, the capable of repetition,
yet evading review doctrine is limited to situations where two elements combine: (1) the
challenged action is in its duration too short to be fully litigated prior to its cessation or
expiration; and (2) there is a reasonable expectation or demonstrated probability that the
same complaining party will be subjected to the same action again.[FN3] Reasonable
expectation should not be equated with demonstrated probability; rather these standards
should be viewed in the disjunctive[FN4] so that a controversy may be found to be capable
of repetition based on expectations that, while reasonable, are hardly demonstrably probable.
[FN5] The concern in all cases involving potentially moot claims is whether the controversy
is capable of repetition, not whether the claimant can demonstrate that a recurrence of the
dispute is more probable than not.[FN6] However, the capable of repetition, yet evading
review exception will not be applied where there is no more than a theoretical