IN THE SUPREME COURT OF THE STATE OF NEVADA
`
`* * * * * *
`
`Appellant,
`
`YVES GHIAI-CHAMLOU,
`
`
`
` vs.
`
`RELIANT TITLE USA, LLC; HORIZON
`REALITY GROUP, LLC; BERKSHIRE
`HATHWAY HOMESERVICES
`NEVADA; DOES I through XXX,
`inclusive, and ROE BUSINESS
`ENTITIES I through X, inclusive,
`
`
`
`Respondent.
`
`Electronically Filed
`Nov 10 2021 10:44 a.m.
`Elizabeth A. Brown
`Clerk of Supreme Court
`
`No. 83635
`
`
`
`
`
`
`MOTION TO DISMISS
`
`YAN KENYON
`Jay Kenyon (NSBN 2367)
`7881 W. Charleston Blvd., Suite 165
`Las Vegas, Nevada 89117
`(702) 888-0000
`jay@yan-kenyon.com
`
`KOLEY JESSEN, P.C., L.L.O.
`J. Daniel Weidner, pro hac vice (Bar No. 237389 NE)
`1125 South 103rd Street, Suite 800
`Omaha, Nebraska 68124
`(402) 390-9500
`daniel.weidner@koleyjessen.com
`
`
`
`Docket 83635 Document 2021-32300
`
`
`
`* * * * * *
`
`Appellant,
`
`YVES GHIAI-CHAMLOU,
`
`
`
` vs.
`
`RELIANT TITLE USA, LLC; HORIZON
`REALITY GROUP, LLC; BERKSHIRE
`HATHWAY HOMESERVICES
`NEVADA; DOES I through XXX,
`inclusive, and ROE BUSINESS
`ENTITIES I through X, inclusive,
`
`
`
`Respondent.
`
`Electronically Filed
`Nov 10 2021 10:44 a.m.
`Elizabeth A. Brown
`Clerk of Supreme Court
`
`No. 83635
`
`
`
`
`
`
`MOTION TO DISMISS
`
`YAN KENYON
`Jay Kenyon (NSBN 2367)
`7881 W. Charleston Blvd., Suite 165
`Las Vegas, Nevada 89117
`(702) 888-0000
`jay@yan-kenyon.com
`
`KOLEY JESSEN, P.C., L.L.O.
`J. Daniel Weidner, pro hac vice (Bar No. 237389 NE)
`1125 South 103rd Street, Suite 800
`Omaha, Nebraska 68124
`(402) 390-9500
`daniel.weidner@koleyjessen.com
`
`
`
`Docket 83635 Document 2021-32300
`
`
`
`McDONALD CARANO, LLP
`Rory T. Kay (NSBN 12416)
`Jane Susskind (NSBN 15099)
`2300 W. Sahara Avenue, Suite 1200
`Las Vegas, Nevada 89102
`(702) 873-4100
`rkay@mcdonaldcarano.com
`jsusskind@mcdonaldcarano.com
`
`Attorneys for Respondent, Reliant Title USA, LLC
`
`
`
`
`
`
`
`
`
`ii
`
`
`
`NRAP 26.1 DISCLOSURE STATEMENT
`
`Pursuant to NRAP 26.1, the undersigned counsel of record certifies
`
`that the following are persons and entities as described in NRAP 26.1(a)
`
`and must be disclosed. These representations are made in order that the
`
`justices of the Supreme Court and the judges of the Court of Appeals may
`
`evaluate possible disqualification or recusal.
`
`Respondent Reliant Title USA, LLC (“Respondent” or “Reliant
`
`Title”) has no parent corporation and no publicly held company owns 10%
`
`or more of Reliant Title.
`
`The following law firms have lawyers who appeared for Reliant
`
`Title in the case or are expected to appear on its behalf in this Court:
`
`
`
`
`
`
`
`
`
`
`
`
`
`iii
`
`
`
`(1) Yan Kenyon, (2) Koley Jessen, P.C., L.L.O. and (3) McDonald
`
`Carano LLP.
`
`Dated: November 10, 2021.
`
`
`
`MCDONALD CARANO LLP
`
`By: /s/ Rory T. Kay
`
`
`Rory T. Kay (NSBN 12416)
`2300 W. Sahara Avenue, Suite 1200
`Las Vegas, Nevada 89102
`
`YAN KENYON
`Jay Kenyon (NSBN 2367)
`7881 W. Charleston Blvd., Suite 165
`Las Vegas, NV 89117
`
`
`KOLEY JESSEN, P.C., L.L.O.
`J. Daniel Weidner, pro hac vice
`(Bar No. 23738 NE)
`1125 South 103rd Street, Suite 800
`Omaha, Nebraska 68124
`
`Attorneys for Respondent, Reliant
`Title USA, LLC
`
`
`
`iv
`
`
`
`
`
`
`
`
`
`
`
`INTRODUCTION
`On January 28, 2021, the district court entered a civil order to
`
`statistically close this case based on a stipulated dismissal. Shortly
`
`thereafter, this matter was fully resolved on February 27, 2021, when the
`
`district court entered a Stipulated Judgment against the final defendant
`
`remaining in the case. However, instead of filing a Notice of Entry of
`
`Order within 14 days as required by NRCP 58 (e)(1), Appellant Yves
`
`Ghiai-Chamlou (“Ghiai-Chamlou”) did not file his Notice of Entry of
`
`Order related to the final Stipulated Judgment until 205 days after the
`
`district court signed the Stipulated Judgment. In his Notice of Appeal,
`
`Ghiai-Chamlou attempts to misdirect the court when he states, “[t]his
`
`matter became ripe for Appeal upon Notice of Entry of the September 10,
`
`2021, Stipulated Judgment Against Horizon Realty Group, LLC
`
`(“Horizon”) resolving all remaining claims of all parties.” Had Ghiai-
`
`Chamlou complied with NRCP 58(e)(1), which requires a party to file a
`
`notice of entry within 14 days of judgment, the last day this matter could
`
`have been appealed was April 2, 2021. In other words, Ghiai-Chamlou
`
`filed his notice of appeal 188 days late.
`
`
`
`
`
`
`
`1
`
`
`
`Respondent Reliant Title USA, LLC (“Reliant”) moves to dismiss
`
`this appeal as untimely based on Ghiai-Chamlou’s failure to timely file a
`
`Notice of Entry of Order as required by NRCP 58 (e)(1) and subsequent
`
`failure to timely file a Notice of Appeal as required by NRAP 4(a)(1).
`
`Ghiai-Chamlou cannot unilaterally extend his deadline to file an appeal
`
`six months after the statutory deadline by improperly delaying service of
`
`the notice of entry of judgment. Holding otherwise would encourage
`
`litigants to delay filing a notice of entry of judgment for an indefinite
`
`period while considering an appeal, which is wholly inconsistent with
`
`NRAP 4’s objective to promote finality of judgment. Dismissal of the
`
`current appeal as untimely is therefore warranted under NRCP 58(e)(1)
`
`and NRAP 4(a)(1).
`
`FACTUAL AND PROCEDURAL BACKGROUND
`
`The underlying lawsuit was originally filed on July 5, 2018. On
`
`February 21, 2020, Ghiai-Chamlou filed his Second Amended Complaint
`
`alleging a variety of claims against Reliant related to Ghiai-Chamlou’s
`
`failure to wire transfer funds related to the attempted acquisition of real
`
`property in Clark County, Nevada, to the correct bank account. On March
`
`20, 2020, Reliant moved to dismiss the Second Amended Complaint
`
`
`
`
`
`
`
`2
`
`
`
`under NRCP 12(b)(5). The district court granted Reliant’s motion with
`
`prejudice on May 1, 2020, concluding that Ghiai-Chamlou failed to state
`
`claims against Reliant upon which relief could be granted and finding
`
`that the defects in Ghiai-Chamlou’s Second Amended Complaint could
`
`not be cured by further amendment.
`
`Subsequently, Ghiai-Chamlou executed a Stipulation and Order for
`
`Dismissal with Prejudice as to the remaining Defendants. On February
`
`17, 2021, the district court entered the Stipulation and Order for
`
`Dismissal as to Horizon, the last remaining Defendant (“Stipulated
`
`Judgment”). On September 10, 2021—205 days after the district court
`
`signed the order—Ghiai-Chamlou served a Notice of Entry of the
`
`Stipulated Judgment. On October 7, 2021, Ghiai-Chamlou filed his
`
`Notice of Appeal alleging “[t]his matter became ripe for Appeal upon
`
`Notice of Entry of the September 10, 2021, Stipulated Judgment Against
`
`Horizon resolving all remaining claims of all parties.”
`
`LEGAL ARGUMENT
`
`“An untimely notice of appeal fails to vest jurisdiction in this court.”
`
`Whitman v. Whitman, 108 Nev. 949, 950, 840 P.2d 1232, 1233 (1992).
`
`
`
`
`
`
`
`3
`
`
`
`Regarding the timing requirements for filing a notice of appeal, NRAP
`
`4(a)(1) provides as follows:
`
`In a civil case in which an appeal is permitted by law from a district
`court, the notice of appeal required by Rule 3 shall be filed with the
`district court clerk. Except as provided in Rule 4(a)(4), a notice of
`appeal must be filed after entry of a written judgment or
`order, and no later than 30 days after the date that written
`notice of entry of the judgment or order appealed from is
`served.
`
`
`(emphasis added).
`
`
`
`With respect to the time for which a party must serve a notice of
`
`entry of judgment, NRCP 58 (e)(1) provides as follows:
`
`Within 14 days after entry of a judgment or an order, a party
`designated by the court under Rule 58(b)(2) must serve written
`notice of such entry, together with a copy of the judgment or order,
`upon each party who is not in default for failure to appear and must
`file the notice of entry with the clerk of the court.
`
`These deadlines are not optional. See NRCP 58(e)(1) (using the
`
`
`
`
`mandatory word “must” to describe a party’s statutory requirement);
`
`NRAP 4(a)(1) (same). Despite this, Ghiai-Chamlou failed to timely serve
`
`the written notice of entry of the Stipulated Entry of Judgment, the final
`
`order on which this appeal is based, within 14 days as required by NRCP
`
`58(e)(1). When calculating the deadline to appeal, a party must factor in
`
`both NRAP 4(a)(1)’s 30-day window and NRCP 58(e)(1)’s requirement
`
`
`
`
`
`
`
`4
`
`
`
`that a notice of entry of judgment “must” be served and filed within 14
`
`days of the entry of judgment. Combining these timing requirements, the
`
`latest a party can file a notice of appeal after the entry of a judgment is
`
`44 days after the judgment it is entered. Ghiai-Chamlou failed to comply
`
`with these timing requirements.
`
`Specifically, the Stipulated Entry of Judgment was entered on
`
`February 17, 2021. But Ghiai-Chamlou did not serve a notice of entry of
`
`judgment until September 10, 2021—or 205 days after the judgment was
`
`entered. Because the Notice of Entry of Judgment was untimely, Ghiai-
`
`Chamlou’s notice of appeal is similarly untimely under the spirit of NRAP
`
`4(a)(1), which provides that a party must file a Notice of Appeal thirty
`
`(30) days after the notice of entry of judgment is served.
`
`By failing to comply with NRCP 58(e)(1)’s 14-day requirement for
`
`filing a notice of entry of order, and instead waiting 205 days to do so,
`
`Ghiai-Chamlou unilaterally altered his own deadline to appeal. His
`
`exploitation of NRCP 58(e)(1) impermissibly allows a party to alter the
`
`appeal deadline contained in NRAP 4(a)(1) to a date of its choosing,
`
`regardless of the amount of time that passes between the entry of the
`
`judgment and the service of the notice of the entry of the judgment. This
`
`
`
`
`
`
`
`5
`
`
`
`practice creates a “loophole” to the timing requirements governing
`
`Nevada appeals and is in contravention to the spirit of NRAP 4(a)(1)’s 30-
`
`day deadline. The only reasonable interpretation of NRAP 4(a)(1)’s
`
`30-day deadline to appeal from the date of service of notice of entry of
`
`judgment is that NRAP 4(a)(1) contemplates timely and proper service of
`
`the underlying notice of entry of judgment, which Ghiai-Chamlou failed
`
`to do in this case. Any other interpretation would encourage litigants to
`
`delay in filing a written notice of entry to escape NRAP 4(a)(1)’s deadline.
`
`In Matter of Estate of Herrmann, 100 Nev. 1, 677 P.2d 594 (1984),
`
`this Court rejected a party’s attempt to rely on the failure to serve a
`
`written notice of entry as tolling his appeal deadline with respect to a
`
`judgment that had been entered fifteen (15) months before his appeal.
`
`There, Herrmann argued that his deadline to appeal never began to run
`
`because he was never served with a written notice of entry. Id. at 22, 677
`
`P.2d at 607. However, the underlying judgment was prepared by
`
`Herrmann and executed in open court by the district court judge in
`
`Herrmann’s presence. The Nevada Supreme Court held that where
`
`actual notice of a written kind is established, the purpose of NRCP
`
`58(e)(1) is satisfied and no separate formal notice is required. Id. at 23,
`
`
`
`
`
`
`
`6
`
`
`
`677 P.2d at 608. Thus, the time to appeal for Herrmann had elapsed
`
`because he had actual notice of the entry of judgment. In so holding, the
`
`Court specifically held as follows: “We think our written notice
`
`requirement simply was never intended to operate in favor of a party who
`
`has himself prepared and procured the entry of a judgment…[w]hen the
`
`party himself causes the entry he clearly has knowledge of the adverse
`
`order or judgment.” Id. The Court emphasized that “[a]ll provisions of the
`
`NRCP are to be construed to secure the just, speedy, and inexpensive
`
`determination of every action.” Id. at 25, 677 P.2d at 609 (emphasis
`
`added).
`
`In this case, Ghiai-Chamlou drafted and procured the Stipulated
`
`Judgment against Horizon filed on January 28, 2021. Notably, the Notice
`
`of Entry of Judgment against Horizon includes an email attachment
`
`between Ghiai-Chamlou’s law firm and counsel for Horizon wherein
`
`Ghiai-Chamlou’s law firm inquires whether they can use e-signatures to
`
`file the Stipulated Judgment that Ghiai-Chamlou prepared. The
`
`Stipulated Judgment further acknowledges that it was submitted by
`
`counsel for Ghiai-Chamlou in the signature block. Ghiai-Chamlou
`
`therefore prepared, procured, and facilitated the entry of the Stipulated
`
`
`
`
`
`
`
`7
`
`
`
`Judgment against Horizon and had actual notice of the entry of this
`
`judgment in February 2021. Despite this knowledge, Ghiai-Chamlou
`
`waited seven months to file a notice of entry and now attempts to use this
`
`fact to justify his untimely appeal. As the Nevada Supreme Court held in
`
`Herrmann, because Ghiai-Chamlou prepared and procured the entry of
`
`judgment, no further notice of entry of judgment was required to trigger
`
`NRAP 4(a)(1)’s 30-day deadline.
`
`As
`
`the Nevada Supreme Court
`
`appropriately noted,
`
`“[u]pon the pragmatic consideration that one who necessarily knows of
`
`an event because he was an active participant need not be given formal
`
`notice of what he is bound to know,” Ghiai-Chamlou “necessarily knew”
`
`of the entry of judgment as to Horizon because he procured the judgment
`
`for his benefit in February 2021.1 Herrmann, 100 Nev. at 25, 677 P.2d at
`
`609. Ghiai-Chamlou’s notice of appeal, filed in September 2021, is
`
`therefore untimely.
`
`Further, if the practice utilized by Ghiai-Chamlou in this case is
`
`permitted, a party could wait years before serving a notice of entry of a
`
`
`1 Notably, all other notices of entry of judgment in this case were served
`within the fourteen (14) day time limitation contained in NRCP 58(e)(1),
`and at no other point in the case was there an excessive delay in service
`of the notice of entry after the District Court’s entry of an order (let alone
`a 205 day delay).
`
`
`
`
`
`
`8
`
`
`
`final judgment to unilaterally extend the 30-day window within which to
`
`file a notice of appeal. Indeed, it is unclear where the outer limits of a
`
`party’s abuse of this rule could end. Such unfettered discretion in
`
`allowing a party to determine its own appellate deadlines by untimely
`
`service of a notice of entry of judgment should not be permitted.
`
`Therefore, Ghiai-Chamlou notice of appeal should be dismissed as
`
`untimely under NRAP 4(a)(1) and NRCP 58(e)(1).
`
`CONCLUSION
`
`Ghiai-Chamlou’s Notice of Appeal is untimely based on his failure to
`
`timely serve the underlying Notice of Entry of Judgment under NRCP
`
`58(e)(1). Therefore, this Court lacks jurisdiction and so Reliant requests
`
`that the Court dismiss the appeal.
`
`DATED: November 10, 2021.
`
`
`
`MCDONALD CARANO LLP
`
`By: /s/ Rory T. Kay
`
`
`Rory T. Kay (NSBN 12416)
`2300 W. Sahara Avenue, Suite 1200
`Las Vegas, Nevada 89102
`
`Attorneys for Respondent, Reliant
`Title USA, LLC
`
`
`9
`
`
`
`
`
`
`
`
`
`
`
`
`
`Affirmation
`
`The undersigned does hereby affirm that the preceding document
`
`does not contain the social security number of any person.
`
`Dated: November 10, 2021.
`
`
`
`MCDONALD CARANO LLP
`
`By: /s/ Rory T. Kay
`
`
`Rory T. Kay (NSBN 12416)
`2300 W. Sahara Avenue, Suite 1200
`Las Vegas, Nevada 89102
`
`YAN KENYON
`Jay Kenyon (NSBN 2367)
`7881 W. Charleston Blvd., Suite 165
`Las Vegas, NV 89117
`
`
`KOLEY JESSEN, P.C., L.L.O.
`J. Daniel Weidner, pro hac vice
`(Bar No. 23738 NE)
`1125 South 103rd Street, Suite 800
`Omaha, Nebraska 68124
`
`Attorneys for Respondent, Reliant
`Title USA, LLC
`
`10
`
`
`
`
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF COMPLIANCE
`
`Pursuant to NRAP 27(d), I hereby certify that this motion complies
`
`with the formatting requirements of NRAP 32(a)(4), the typeface
`
`requirements of NRAP 32(a)(5) and the type-style requirements of NRAP
`
`32(a)(6) because this motion has been prepared in a proportionally spaced
`
`typeface using Microsoft Word 2016 in 14-point font, Century Schoolbook
`
`style. I further certify that this motion complies with the page limits of
`
`NRAP 27(d)(2) because it does not exceed 10 pages.
`
`
`
`Pursuant to NRAP 28.2, I hereby certify that I have read this
`
`motion, and to the best of my knowledge, information, and belief, it is not
`
`frivolous or interposed for any improper purpose. I further certify that
`
`this motion complies with all applicable Nevada Rules of Appellate
`
`Procedure. I understand that I may be subject to sanctions in the event
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`11
`
`
`
`that this motion is not in conformity with the requirements of the Nevada
`
`Rules of Appellate Procedure.
`
`Dated: November 10, 2021.
`
`
`
`MCDONALD CARANO LLP
`
`By: /s/ Rory T. Kay
`
`
`Rory T. Kay (NSBN 12416)
`2300 W. Sahara Avenue, Suite 1200
`Las Vegas, Nevada 89102
`
`YAN KENYON
`Jay Kenyon (NSBN 2367)
`7881 W. Charleston Blvd., Suite 165
`Las Vegas, NV 89117
`
`
`KOLEY JESSEN, P.C., L.L.O.
`J. Daniel Weidner, pro hac vice
`(Bar No. 23738 NE)
`1125 South 103rd Street, Suite 800
`Omaha, Nebraska 68124
`
`Attorneys for Respondent, Reliant
`Title USA, LLC
`
`
`
`
`
`
`
`
`
`12
`
`
`
`
`
`
`
`
`
`
`
`CERTIFICATE OF SERVICE
`
`
`
`Pursuant to NRCP 5(b), I hereby certify that I am an employee of
`
`McDonald Carano LLP and that on November 10, 2021, I served the
`
`foregoing MOTION TO DISMISS on the parties in said case by
`
`electronically filing via the Court’s e-filing system. The participants in
`
`this case are registered e-filing users and service will be accomplished by
`
`e-filing to the following e-filing participants:
`
` Leo P. Flangas
`FLANGAS CIVIL LAW FIRM, LTD.
`600 South Third Street
`Las Vegas, Nevada 89101
`leo@flangaslawfirm.com
`
` I
`
` declare under penalty of perjury that the foregoing is true and
`correct.
`
`DATED: November 10, 2021.
`
`
`/s/ CaraMia Gerard
`An Employee of McDonald Carano LLP
`
`
`
`
`4894-4670-6433.6
`
`
`
`
`
`
`
`13
`
`
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
