throbber
IN THE SUPREME COURT OF THE STATE OF NEVADA
`
`YVES GHIAI-CHAMLOU,
`
`
`
` vs.
`
`RELIANT TITLE USA, LLC,
`
`
`
`Appellant,
`
`Respondent.
`
`
`
`
`
`* * * * * *
`
`
`
`
`
`
`
`Case No. 83635
`
`Electronically Filed
`Nov 10 2021 01:44 p.m.
`Elizabeth A. Brown
`Clerk of Supreme Court
`
`
`
`
`
`
`AMENDED CERTIFICATE OF
`SERVICE OF MOTION TO DISMISS
`
`Pursuant to NRCP 5(b) and NRAP 16(a)(3), I hereby certify that I
`
`am an employee of McDonald Carano LLP, and that on November 10,
`
`2021, the foregoing MOTION TO DISMISS was served via U.S. Mail,
`
`postage prepaid, upon the following:
`
`Larry J. Cohen
`Post Office Box 10056
`Phoenix, AZ 85064
`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
`
`
`
`Docket 83635 Document 2021-32360
`
`

`

`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
`
`

`

`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
`
`

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