McClandon v. Dist. Ct. (Dakem & Assoc.'s, LLC)
State Court (Southern Reporter)11/23/2016
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IN THE SUPREME COURT OF THE STATE OF NEVADA
JOEANN MCCLANDON, AN No. 69949
INDIVIDUAL,
Petitidtker,
FLED
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA, NOV 2 3 2016
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
KENNETH C. CORY, DISTRICT
Respondents,
and
DAKEM & ASSOCIATES, LEC, A
LIMITED LIABILITY COMPANY,/
Real Party in Interest.
/ x
ORDER DENYING PE77TIONF \OR WRIT OF MANDAMUS
This is an origi41 petition for writ of mandamus challenging
a district court order deny,jjig a motion to set a ide a renewed judgment for
failure to comply with N S 17.214's renewal proc dures.
I.
On Sept6mber 29, 2005, real party in lizterest Dakem &
Associates, LLC, /obtained a judgment against pet ioner JoeAnn
McClandon in the amount of $73,401 and $480.71 for legal osts after a
two-day bench/ trial. Thereafter,. Dakem began efforts tck enforce
judgment, wyich were ultimately unsuccessful. Because civil judgments
are only orceable for a period of six years pursuant to NRS 11.190(1),
Dakem was required to renew its judgment under NRS 17.214 by
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September 29, 2011, unless the statute of limitations period was tolled. 1
Mier this deadline passed, on February 23, 2012, Dakem filed an ex parte
motion to renew judgment with the district court, which as granted on
March 13, 2012, and filed on March 15, 2012. Althou Dakem claims it
sent several notices to McClandon's last known ddress, McClandon
maintains that she never received those notices.
Over\three years later, on April 13,/2015, McClandon filed a
motion with the district court to vacate Dake s renewal of judgment and
have the original judgment declared expi ed. After full briefing and
argument by both partie\s,„\the district co rt denied McClandon's motion.
McClandon's counsel then Withdrew fro representation, and McClandon
filed a timely pro se appeal. T t dismissed McClandon's appeal on
July 31, 2015, stating that "[n]o tatute or court rule provides for an
appeal from either an order 443/hi a motion to declare a judgment
expired or an order denying a motid to quash a bench warrant."
McClandon v. Dakem & ssocs., LLC; Docket No. 68430 (Order
Dismissing Appeal, July 31/2015).
McClandon n petitions this court f a writ of mandamus to
command the district court to vacate the March 15, 012, order renewing
judgment and declate the September 29, 2005, udgment against
McClandon expired..
1 Dakern p rsuaded the district court the statute of limita ons period
was tolled by e stay ordered at McClandon's behest during he original
appeal of the judgment. The parties dispute whether the stay c e into
effect becau McClandon failed to post a supersedeas bond. Beca se we
resolve this petition on procedural grounds, we express no opinio on
whether the statute of limitations was tolled.
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"Writs of mandamus. . . are extraordinary remedies and are
available when the petitioner has no 'plain, speedy and ade ate remedy
in the or •nary course of law." D.R. Horton, Inc. v. Eight Judicial Dist.
Court, 123 Nev. 468, 474, 168 P.3d 731, 736 (2007) (qu ing NRS 34.170).
A writ of mandamus is "available to compel the perfo ance of an act that
the law requires \. . or to control an arbitrary or capricious exercise of
discretion." Int? Gme Tech., Inc. v. Second Jud ial Dist. Court, 124 Nev.
193, 197, 179 P.3d 55 558 (2008); see also S 34.160. Whether a writ
of mandamus will be c sidered is withi this court's sole discretion.
Smith v. Eighth Judicial Dt§t. Court, 107 ev. 674, 677, 818 P.2d 849, 851
(1991).
The right to imme ate appeal a final judgment generally
constitutes a plain, speedy and ad quate remedy at law. D.R. Horton, 123
Nev. at 474, 168 P.3d at 736. us, f a party has a right to appeal, then
there is an adequate legal r medy av ilable to a party, and therefore a
writ of mandamus is inapp opriate and '11 not issue.
NRAP 3A(b)/8) permits appea of "[a] special order entered
after final judgment," hich includes an or r declining to invalidate an
improperly renewed judgment. See Leven v. y, 123 Nev. 399, 401-02,
168 P.3d 712, 714/(2007). NRAP 40 permits a pa ty to petition this court
for rehearing if/error or misapprehension of record f ts occurred.
H re, McClandon had a plain, speedy, d adequate legal
remedy in tli/e form of a direct appeal from the district co rt's denial of her
motion to/vacate Dakem's motion to renew the judgmen She timely
appealed the district court's denial of her motion to this court \ut failed to
cogently establish the jurisdictional basis for her appeal. As a re\ult, this
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court mistakenly dismissed her appeal on the grounds that there was "[n]
statute or court rule [that] provides for an appeal from eit er an order
denying a motion to declare a judgment expired or an 'der denying a
motio to quash a bench warrant." McClandon, Dockq o. 68430 (Order
Dismissiri Appeal, July 31, 2015). It appears at we incorrectly
dismissed h appeal, based on confusion in )'he record as to the
jurisdictional ha s for her appeal.
McClan on, however, was not w out recourse. She could
have chosen to petiti this court for re aring under NRAP 40(c)(2),
clarifying the jurisdictio 1 basis for her ippeal and thus persuading this
court to hear her appeal o hat McClandon failed to petition
this court for rehearing is tal t er instant petition. McClandon's
appeal and her unused petition\for ehearing constituted a plain, speedy,
and adequate legal remedy th precludes the issuance of a writ of
mandamus. Although McC1 was proceeding pro se, she was
nonetheless responsible for fqnowin g 1\4e law and procedure of the courts.
See Vanisi v. State, 117 Nev, 330, 340, 2 .3d 1164, 1171 (2001).
Because Mc andon had lain, speedy, and adequate
remedy at law in the fo of an appeal and a\Retition for rehearing, a writ
of mandamus is map opriate. Therefore, we
ORDE the petition DEN
C.J.
Parratirre
Hardes
Pickering
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cc: Hon. Kenneth C. Cory, District Judge
Tanner Harris Law Firm, LLC
La Office of Daniel Marks
Eigh District Court Clerk
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