Navigating Multi-Party Appeals: Top 3 Factors to Consider
In an article titled “Navigating Multi-Party Appeals,” Adam Hosmer-Henner and Jane Susskind explain that joint or consolidated appeals are not uncommon in Nevada, the Nevada Rules of Appellate Procedure expressly contemplate joinder or consolidation, and the Nevada Supreme Court typically employs this procedure when two or more appeals involve decisions by a district court in the same case. However, the situation becomes more complex when multiple parties with different interests appeal the same district court order. Adam and Jane describe several factors to consider and prepare for when involved in a multi-party appeal. Their article is provided below and as a PDF here.
“Navigating Multi-Party Appeals,” The Writ: Appellate Briefs, publication of the Washoe County Bar Association, May/June 2023
Joint or consolidated appeals are not uncommon in Nevada and the Nevada Rules of Appellate Procedure expressly contemplate joinder or consolidation. See NRAP 3(b)(2) (“When the parties have filed separate timely notices of appeal, the appeals may be joined or consolidated by the court upon its own motion or upon motion of a party.”) The Nevada Supreme Court will typically employ this procedure when two or more appeals involve decisions by a district court in the same case.1 For example, consolidation is common when a party appeals a final judgment and then subsequently appeals a post-judgment order awarding attorney’s fees in the same case. See e.g., Patush v. Las Vegas Bistro, LLC, 135 Nev. 353, 449 P.3d 467 (2019) (electing to consolidate an appeal of a dismissal order with an appeal of a district court’s order awarding attorney fees). Under such circumstances, routine consolidation conserves judicial resources and streamlines the appellate procedure.
When multiple parties with different interests appeal the same district court order though, the situation becomes more complex. The Seventh Circuit observed that sometimes “the parties have divergent interests” and “may want to point fingers at each other, and some may want to present issues that do not affect the others.” United States v. Torres, 170 F.3d 749, 750 (7th Cir. 1999). The Nevada Rules of Appellate Procedure do not provide explicit instructions, but there are several factors to consider and prepare for when involved in a multi-party appeal.
- First, an appellant should evaluate whether there is a final judgment for purposes of NRAP 3(A)(b)(1). In the context of consolidated district court cases, the Nevada Supreme Court held that “consolidated cases retain their separate identities so that an order resolving all of the claims in one of the consolidated cases is immediately appealable as a final judgment under NRAP 3A(b)(1).” Matter of Est. of Sarge, 134 Nev. 866, 870-71, 432 P.3d 718, 722 (2018). Thus, an appellant should not wait until final judgment is entered in each consolidated case to appeal. See Reggio v. Eighth Jud. Dist. Ct., 139 Nev. Adv. Op. 4, 525 P.3d 350, 355 (Mar. 9, 2023) (citing Sarge and confirming that a consolidated case becomes immediately appealable as soon as the district court renders a final judgment in one of the consolidated cases).
- Second, an appellate should evaluate the benefits of a joint notice of appeal in light of the facts of the case and each party’s interests. Under NRAP 3(b)(1), parties in the same case who have the same interest may file a joint notice of appeal and proceed as a single appellant. Absent an order from the Court stating otherwise, join appellants will typically file a joint brief. While this reduces the costs of an appeal, it requires cooperation and a unity of interest. Thus, a joint notice of appeal might not be the best option in the absence of fully aligned interests, especially as interests could divide during briefing.
- Third, a party may move for consolidation under NRAP 3(b)(2). The Rules do not provide further guidance on when consolidation is appropriate, but appeals that involve substantially similar issues or that challenge the same district court order are potential options for consolidation. See, e.g., Valdez-Jimenez v. Eighth Jud. Dist. Ct., Dkt. No. 76417, Doc. No. 18-905367 (Nov. 18, 2018) (consolidated petitions that “raise substantially similar issues of constitutional magnitude and statewide importance”); Sullivan, P.E. v. Lincoln Co. Water Dist., Dkt. No. 84739, Doc. No. 22-18101 (June 7, 2022) (consolidating four appeals that “arise from the same district court case, challenge the same orders, and involve the same parties”). Consolidation can promote judicial economy by allowing the Court to review common questions of fact and law at the same time. And consolidation, as opposed to a joint notice of appeal, further protects parties’ individual interests by allowing parties to file separate briefs or petitions that outline their individual positions.
1Relatedly, the Court also has the discretion to deconsolidate appeals or petitions if, upon further review, it determines that consolidation is not warranted. See, e.g., Edgeworth Family Tr. V. Simon, Docket No. 77678, Doc. No. 20-46675 (Dec. 28, 2020).
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