award sanctions under NRAP 38 and "this court's inherent power for filing
a frivolous, unauthorized appeal." 2
Appellants have submitted an "Opposition to Respondents'
Motion to Dismiss and Request for Sanctions and Countermotion for
Sanctions Against Respondents." 3 In that response, appellants indicate
that the bankruptcy court "specifically entered an order allowing
Appellants to retain Callister & Frizell for the purposes of taking an
appeal," and that they had filed a motion to lift the bankruptcy stay for
the purpose of pursuing an appeal; and therefore the filing of the notice of
appeal was not improper. Accordingly, appellants request that sanctions
be imposed against respondents for filing the "Motion to Dismiss and
Requests for Sanctions [in] bad faith."
2 NRAP 38 provides that this court may impose sanctions if it
determines that an appeal is frivolous, was taken or processed in a
frivolous manner, was taken or processed solely for purposes of delay, or
whenever the appellate processes of the court have otherwise been
misused.
3 Cause appearing, we grant appellants' motion, and the errata
thereto, for an extension of time to file the response to respondents'
motion. See NRAP 27. Accordingly, the clerk shall file the "Opposition to
Respondent's' Motion to Dismiss and Request for Sanctions and
Countermotion for Sanctions Against Respondents," and "Appellants'
Supplement to Their Opposition to Respondents' Motion to Dismiss and
Request for Sanctions and Countermotion for Sanctions Against
Respondents," which were provisionally received. The clerk shall also file
the provisionally received "Respondents' Response to Appellants' Motion
for Extension of Time to File a Response to Respondent's' Motion to
Dismiss and Request for Sanctions," and respondents' response to
appellants' supplement to their opposition to respondents' motion to
dismiss. We have considered the arguments of the parties' in all of these
documents in the resolution of this matter.
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Finally, appellants have submitted a "Notice of Limited Non-
Opposition to Respondents' Motion to Dismiss." 4 In that filing, appellants
inform this court that the bankruptcy court denied their motion for relief
from the bankruptcy stay. In light of that denial, appellants indicate that
they "now do not oppose Respondents' motion to dismiss." Appellants still
oppose, however, respondents' request for sanctions for the filing of the
appeal.
Cause appearing, we grant respondents' motion in part and
dismiss this appea1. 5 We do not, however, believe that sanctions are
appropriate in these circumstances for either party. That is, it does not
appear that the appeal was taken improperly, 6 nor does it appear that
respondents filed the motion to dismiss in "bad faith." Accordingly, we
deny respondents' and appellants' requests for sanctions.
It is so ORDERED.
4 The clerk shall file that provisionally received document.
5 This dismissal is without prejudice to the parties' right to file a
motion to reinstate this upon conclusion of the bankruptcy proceedings.
Any such motion to reinstate the appeal must be filed within 60 days of
any order lifting the stay or concluding bankruptcy proceedings.
6 We also note that it appears that the more appropriate forum to
raise any issues regarding alleged violations of the bankruptcy stay would
be the bankruptcy court in which the matter is pending.
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cc: Hon. Mark R. Denton, District Judge
Ara H. Shirinian, Settlement Judge
Callister & Frizell
Lewis Roca Rothgerber LLP/Reno
Korshak Kracoff Kong Sugano
Eighth District Court Clerk
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