Rust v. Clark County School District

This is the second time this case has come before this court on appeal. The facts of this case are reported in our prior opinion in this matter. See Rust v. Clark County School District, 100 Nev. 372, 683 P.2d 23 (1984). In Rust, we concluded that, although appellant had been guilty of misconduct, the penalty imposed for his single unexcused absence was so severe that it amounted to an abuse of discretion. We therefore reversed the prior judgment of the district court, and remanded the case to the Board of Trustees “for imposition of a penalty consistent with the views expressed in [our prior] opinion.” Id. at 376, 683 P.2d at 26. On remand, the Board of Trustees reinstated appellant, but reduced him from a principal to an assistant principal. The Board imposed an additional penalty of suspension of his pay and benefits during the period between his dismissal and his reinstatement. Appellant petitioned the district court for judicial review of the Board’s decision.

On January 11, 1985, following a hearing, the district court stated its intention to affirm the decision of the Board of Trustees and also announced that it would not file a written decision. Appellant filed a notice of appeal on January 16, 1985. Thereafter, on March 6, 1985, the district court entered a written judgment affirming the decision of the Board of Trustees. Respondents served written notice of entry of this judgment on appellant on March 21, 1985. Appellant, however, failed to file a new notice of appeal. Respondents contend, therefore, that appellant’s notice of appeal was premature, and that the premature notice failed to vest jurisdiction in this court. We agree.

Generally, a premature notice of appeal fails to vest jurisdiction in this court. See NRAP 4(a); Hill v. Warden, 96 Nev. 38, 604 P.2d 807 (1980); Paradise Palms v. Paradise Homes, 93 Nev. 488, 568 P.2d 577 (1977); Elko-Tuscarora Co. v. Wines, 24 Nev. 305 (1898). There are sound reasons for this rule. First, the proper and timely filing of a notice of appeal is jurisdictional. See Mahaffey v. Investor’s Nat’l Security, 102 Nev. 462, 725 P.2d 1218 (1986); Zugel v. Miller, 99 Nev. 100, 659 P.2d 296 (1983). Jurisdictional rules go to the very power of this court to act. They must, accordingly, be clear and absolute in order to give all fair notice of what is required to bring a matter properly before this court. Indeed, a timely notice of appeal divests the district court of jurisdiction to act and vests jurisdiction in this court. See Wilmurth v. District Court, 80 Nev. 337, 393 P.2d 302 (1964). Prior to the entry of a final judgment the district court remains free to reconsider and issue a written judgment different from its oral pronouncement. See Tener v. Babcock, 97 Nev. 369, 632 P.2d 1140 (1981); Lagrange Constr. v. Del E. Webb Corp., 83 Nev. 524, 435 P.2d 515 (1967); see also Rae v. All American Life & Cas. Co., 95 Nev. 920, 605 P.2d 196 (1979). The point at which jurisdiction is transferred must, therefore, be sharply delineated.

Appellant contends that the district court misled appellant and induced him to file a premature notice of appeal by announcing that it did not intend to enter a written judgment, and that respondents caused confusion by causing a written judgment to be entered. This argument is unpersuasive. An oral pronouncement of judgment is not valid for any purpose, NRCP 58(c); therefore, only a written judgment has any effect, and only a written judgment may be appealed. See Tener v. Babcock, 97 Nev. 369, 632 P.2d 1140 (1981); Fitzharris v. Phillips, 74 Nev. 371, 333 P.2d 721 (1958). The district court’s oral pronouncement from the bench, the clerk’s minute order, and even an unfiled written order are ineffective for any purpose and cannot be appealed. See Farnham v. Farnham, 80 Nev. 180, 391 P.2d 26 (1964); Musso v. Triplett, 78 Nev. 355, 372 P.2d 687 (1962). Appellant, rather than filing a premature notice of appeal, should have requested a written judgment from the district court. At the very least, appellant should have filed an amended notice of appeal after the written judgment was entered on March 6, 1985. Further, we are not persuaded that counsel for respondents acted improperly in any way by seeking a written order from the district court. Nothing precluded appellant from filing an amended notice of appeal after written notice of entry of the written judgment was served on him. See Stoermer v. Edgar, 472 N.E.2d 400 (Ill. 1984).

Finally, it has been suggested that appellant’s premature notice of appeal should be excused as a technical defect pursuant to Knox v. Dick, 99 Nev. 514, 665 P.2d 267 (1983). We disagree. Unlike the circumstances present in Knox, this case involves a notice of appeal that is truly premature. There is nothing technical about it. In Knox, a written judgment was appealed in a timely fashion; there was nothing wrong with the judgment other than the fact that the district court had not certified it as final pursuant to NRCP 54(b). Also, the judgment in Knox was unquestionably certifiable as final pursuant to NRCP 54(b). We concluded, therefore, that the prematurity of the notice of appeal in that case was purely technical. Contrarily, in this case, no written judgment was entered by the district court; and, consequently, there was no judgment to appeal from at the time appellant’s notice of appeal was filed. As a result, appellant’s premature notice of appeal did not divest the district court of jurisdiction to act at that time. See Wilmurth v. District Court, 80 Nev. 337, 393 P.2d 302 (1964).

Allowing a premature notice of appeal to be valid under the facts of this case would impose an unnecessary burden on this court to determine on an ad hoc basis whether we have power to act and would so obscure rules of jurisdiction as to be detrimental to the judicial process. For example, if notices of appeal filed after the oral rendition of judgment, but before a final written judgment is entered, are held to be valid, it would become difficult, if not impossible, to determine when or if a final oral judgment has been rendered. Under such circumstances, this court would be required to issue numerous orders, and to grapple with fine and nonexistent distinctions between valid and invalid premature notices of appeal. Also, it would be difficult to determine when the thirty-day appeal period began to run under NRAP 4(a), whether post-judgment motions were timely and whether they would toll the appeal period that may or may not have commenced to run. Such a rule would render uncertain the validity of findings of fact, conclusions of law and a written judgment filed after a “timely” notice of appeal had been filed. Also, such a rule would ignore the possibility (and the possibility is not remote) that no judgment would ever be properly entered. In addition, questions would arise as to when a notice of cross-appeal would be due under such a flexible rule of jurisdiction. In light of these and other considerations, we decline to adopt such a rule in this state.

Other states have held that a premature notice of appeal is ineffective to vest jurisdiction in an appellate court to review a subsequently entered final judgment. See Stoermer v. Edgar, 472 N.E.2d 400 (Ill. 1984); Mangus v. Progress Quarries, Inc., 622 P.2d 319 (Or. 1981); Glass v. Windsor Navigation Company, 504 P.2d 1135 (Wash. 1973); Vassallo v. Texaco, Inc., 422 NYS.2d 747 (N.Y.App.Div. 1979). Also, in analogous cases, where a notice of appeal was filed during the pendency of a timely post-trial motion, the notices have been held to be premature and of no effect. See Pessolano v. George R. Price & Associates, 283 S.E.2d 317 (Ga.App. 1981); Rutledge v. Vonfeldt, 564 P.2d 350 (Wyo. 1977); see also Gulf Oil Co. v. Mantegna, 307 S.E.2d 732 (Ga.App. 1983); Blanchette v. Martell, 368 N.E.2d 458 (Ill.App. 1977). We conclude that the result of these authorities is sound.

We conclude that we lack jurisdiction to entertain this appeal. Accordingly, we dismiss this appeal.

Gunderson, C. J., and Young, J., and Zenoff, Sr. J., concur.

The dissent has suggested that the federal courts, under similar rules of procedure, have treated this type of premature filing as a technical defect not affecting the substantial rights of the parties. In support of this proposition, the dissent cites Forman v. Davis, 371 U.S. 178 (1962); Hodge v. Hodge, 507 F.2d 87 (3rd Cir. 1975); and Ruby v. Secretary of United States Navy, 365 F.2d 385 (9th Cir. 1966), cert. denied, 386 U.S. 1011 (1967). We note that Hodge and Ruby have not been cited since they were decided. We also noted that Hodge and Ruby relied for authority on Lemke v. United States, 346 U.S. 325 (1953). Lemke was a criminal matter which presented issues completely foreign to the civil matter now before this court. We note further that the federal rules in effect at the time Hodge and Ruby were decided were not substantially similar to our presént rules of procedure. In particular, FRCP 73(a) then provided that the period for filing a notice of appeal could be extended on a showing of excusable neglect. See Plant Economy, Inc. v. Mirror Insulation Company, 308 F.2d 275 (3rd Cir. 1962). Contrarily, NRAP 3(a) expressly makes the timely filing of a notice of appeal mandatory. Finally, the technical defect found not to be jurisdictional in Forman did not concern the timeliness of a notice of appeal. Instead, the Forman court refused to read the text of a timely notice of appeal restrictively. Indeed, two notices of appeal were filed in Forman, and the first one was held to have been premature and of no effect. We have similarly upheld the validity of a poorly drafted, but timely, notice of appeal. See Ross v. Giacomo, 97 Nev. 550, 635 P.2d 298 (1981).

The Honorable David Zenoff, Senior Justice, was appointed to participate in this case in the place of The Honorable Thomas L. Steffen, who voluntarily disqualified himself. Nev. Const, art. 6, § 19; SCR 10.