CV11-03628-2799126 Flanagan Order of 3 30 12 Upholding 1708 Decision 26405 00696jbig2lossy Ocrt

7/28/2019 CV11-03628-2799126 Flanagan Order of 3 30 12 Upholding 1708 Decision 26405 00696jbig2lossy Ocrt

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F I L E DElectronically

03-30-2012:04:14:37 PMJoey Orduna Hastings

Clerk of the Court

Transaction # 2859996

23456 IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA7 IN AND FOR THE COUNTY OF WASHOE89 ZACHARY COUGHLIN, Case No.: CVII-03628

10 Plaintiff, Dept. No.: 7

123

1456

171819202

vs.MATTHEW MERLISS,

Defendant.~ /

OR ERThis case is an appeal from Reno Justice Court ( RJC ) and involves the summar

eviction of a tenant, Plaintiff ZACHARY COUGHLIN ( Coughlin ), under NRS Chapter 40.Currently before this Court are three matters, all of which have been fully briefed and submittefor decision.

The first matter is Coughlin's Motion Under NRCP 52 b) to Amend or Make AdditionaFindings of Fact; or Pled in the Alternative, Motion Under NRCP 59 to Alter or mend th

22 Order Denying Motion to Prevent Disposal of Personal Property. The second matter i23 Defendant MATTHEW MERLISS s ( Merliss ) Motion for Leave to File Answering Brief i24 Excess of Five Pages. The third and final matter is the parties' Appellate Briefs, includin25 Coughlin's Opening Briefand Merliss's Answering Brief This Court will address each ofthes26 matters in turn.12728 I The parties are familiar with the facts and procedural history of this case. Thus, this Court will recite neither thfacts nor procedural history unless doing so is necessary to this Court 's determination.


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1 NRCP 52(b) and NRCP 592 The object of Coughlin's Motion filed on January 30, 2012 appears to be this Court'3 Order dated January 11, 2012. In that Order this Court denied Coughlin's emergency reques4 for a temporary restraining order. Coughlin made the request after Judge Sferrazza of RJ5 entered an Order on December 21, 2011, in which he ordered: (1) Coughlin to pay $480.00 t6 Merliss for storage of his personal property between November 1,2011 and November 16,2011;7 and (2) Coughlin shall have access to the premises from 9:00 a.m. to 5:00 p.m.8 December 22,2011 and December 23,2011 to remove his personal property.9 Coughlin claims this Court's January 11, 2012 Order is clearly inaccurate to the exten

l i s purports to find that the undersigned made any agreement to waive his security deposit iexchange for additional access to the property. (PI. Mot. at p. 12.) In addition, Coughlin aver

2 counsel for Merliss misled this Court by claiming Coughlin was permitted to remove persona3 property after 5 :00 p.m. Coughlin further alleges counsel for Merliss boarded up the premises4 install [ed] a chain and padlock on the back gate, and later attempted to file suit for the disposa5 costs of removing the property, all ofwhich prevented Coughlin from removing the items in th

16 first place. (PI. Mot. at p. 14.) Consequently, Coughlin contends this Court's Order should b7 amended or altered under NRCP 52 or 59 to include these allegations as additional findings 08 fact.9 Conversely, in his Opposition filed on February 3, 2012 Merliss avers Coughlin fails t

20 articulate which findings he wants amended under NRCP 52. Even if Coughlin did articulat2 such findings, however, Merliss contends relief under NRCP 52(b) is nonetheless unavailable t22 Coughlin because this Court's Order did not contain a final judgment, as that rule requires.23 Similarly, Merliss contends Coughlin is not entitled to relief under NRCP 59(e) because n24 judgment has ever been entered by this court in this case, so there is no judgment for this court t25 alter or amend. (Def. Opp'n at p. 2.) In short, Merliss contends Coughlin's Motion lacks an26 evidentiary basis, is nonsense filed only to delay this matter and drive up fees, and i27 completely devoid of any merit whatsoever, to the extent it is even decipherable. (Def28

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1 Opp n at p. 1 2.) In fact, Merliss claims Coughlin should be subject to2 vexatious litigation tactics. (Def. Opp n at p. 3.)3 After reviewing the parties' pleadings and the exhibits attached thereto, and afte4 reviewing this Court's January 11,2012 Order, this Court has gleaned from Coughlin's Mafia5 certain additional findings of fact that Coughlin contends should be included - by amendment 06 alteration - in this Court's Order. Ultimately, however, this Court finds the Order i

unamendable or unalterable under the Rules Coughlin cites because said Order does not contai8 a final appealable judgment, or a disposition that resolves all of the parties' claims.9 Simmons Self-Storage Partners, LLC v. Rib Roof, Inc., 247 P.3d 1107, 1108 (Nev. 2011

10 (explaining jurisdiction to consider an appeal from the district court depends on whether th11 district court has entered a final judgment); Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.212 416, 417 (2000) (defining final judgment as a judgment that disposes of all the issue13 presented in the case, and leaves nothing for the future consideration of the court, except fo14 post-judgment issues such as attorney's fees and costs. ). As a consequence, this Court find15 relief under NRCP 52 or 59 is unavailable to Coughlin.16 Although Simmons and GNLV involve appeals to the Nevada Supreme Court from th17 district court, this Court finds the jurisdictional principles announced in those cases also apply t18 the district court when the district court considers appeals from the justice courts, as well a19 when the district court considers motions under NRCP 52 or 59, as we have in this case20 Therefore, this Court concludes Coughlin's Motion Under NRCP 52 b) to mend or Mak21 Additional Findings of Fact; or Pled in the Alternative, Motion Under NRCP 59 to Alter a22 Amend the Order Denying Motion to Prevent Disposal ofPersonal Property is DENIED.23 Leave to File Answering Brief in Excess of Five Pages24 In light of the voluminous record in this case (which exceeds 2,000 pages), includin25 lengthy briefs filed by Coughlin,2 this Court finds good cause exists to grant Merliss leave to fil262728

2 This Court acknowledges Merliss's complaint that Coughlin has violated the page limits contained in Orders frothis Court, as well as the local rules. However, pursuant to this Court 's longstanding policy of considering cases 0the merits, as opposed to dismissing them for procedural reasons, this Court will overlook such violations in thiparticular case.

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1 an answering brief in excess of five pages. In addition, this Court denies Merliss's motion t2 strike the excess material filed by Coughlin and also denies Merliss's request for leave to file3 supplemental brief to meet the arguments contained in that excess material.34 Appellate Briefs5 As mentioned previously, this case involves the summary eviction of Coughlin from 1216 River Rock Street, Reno, V 89501 ( the Property ). After two hearings in RJC in whic7 Coughlin alleged defenses of habitability, retaliation, and discrimination, Judge Sferrazz8 adjudged Coughlin summarily evicted from the Property pursuant to NRS 40.253(6) by Orde9 dated October 27, 2011. Specifically, Judge Sferrazza found Merliss properly terminate

10 Coughlin's tenancy and thereafter properly served Coughlin with a notice of unlawful detainer11 Judge Sferrazza further found Coughlin failed to present any evidence that Merliss acted in an12 prohibited, discriminatory, or retaliatory fashion as alleged by Coughlin, or otherwise.'13 (Sferrazza, J., Order, Case No. REV2011-001708, Oct. 27, 2011.)14 As a result, Coughlin was ordered to vacate the premises by October 31, 2011 at 5:015 p.m. Coughlin failed to do so. He also failed to remove his personal belongings. Consequently16 Merliss sought a personal property lien for storage of Coughlin's personal belongings in th17 Property from the period ofNovember 1 2011 to November 16, 2011. Coughlin filed a motio18 to contest the lien. On December 21, 2011, Judge Sferrazza ordered Coughlin to pay to Merlis19 $480.00 as fair and reasonable compensation for Merliss's storage of his personal belongings.20 (Sferrazza, J., Order, Case No. REV2011-001708, Dec. 21, 2011.) Judge Sferrazza also grante21 Coughlin access to the Property to remove his personal belongings by December 23, 2011 a22 5 :00 p.m. Coughlin failed to do so. As a result, Merliss hired a contractor to dispose 023 Coughlin's personal belongings. Coughlin appealed.24 Coughlin filed his Opening rief ( Brief') on February 6, 2012.4 Merliss filed hi5 Answering rief ( Response ) on February 24, 2012. This Court took the matter unde

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3 See note 2, supra. Merliss made this request in footnote 14 of his Answering Brief, discussed infra.4 This pleading replaced an Opening Brie/Coughlin previously filed two days earlier. Consequently, this Court wiltreat this brief as the operative pleading. n addition, on February 7, 2012 Coughlin filed a SupplementAppellanl s Opening Brief, to which he attached an exhibit containing a CD of audio recordings.

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1 by affidavit or otherwise, set forth specific facts demonstrating the existence of a genuine issu2 for trial. Id.3 Legal Analysis4 This Court has reviewed all of the parties pleadings and the exhibits attached thereto5 This Court also has considered all of the parties relevant arguments. After this review an6 consideration, this Court will not disturb Judge Sferrazza s October 27, 2011 Order grantin7 summary eviction. This Court finds that Order was based on substantial evidence and it was no8 clearly erroneous. Thus, this Court concludes Merliss has met his initial burden of proving ther9 is no genuine issue ofmaterial fact regarding whether Coughlin was summarily evicted properly

10 Consequently, the burden shifts to Coughlin to show the existence of a genuine issue ofmateria11 fact.12 Although Coughlin raises several claims and makes numerous allegations in his Brie13 Coughlin fails to present additional facts related to his defenses raised in RJC that undermine 014 legitimately call into question the substantial evidence upon which Judge Sferrazza relied whe15 he granted summary eviction. This Court gives substantial deference to the lower cour t s factua16 findings in this regard, particularly in light of the numerous hearings held before Judge Sferrazz17 and Coughlin s related opportunities to present evidence supporting his various defenses18 Therefore, this Court finds no genuine issue of material fact exists regarding whether Coughli19 was summarily evicted properly in the lower court. As a result, Coughlin s appeal is DENIED20 CONCLUSION21 Accordingly, in summary, this Court orders:22 1 Coughlin s Motion Under NRCP 52 b) to Amend or Make Additional Findings o23 Fact; or Pled in the Alternative, Motion Under NRCP 59 to Alter or mend the24 Order Denying Motion to Prevent Disposal ofPersonal Property is DENIED;252627 III28 III

2) Merliss s request for leave to file Answering Brief in excess of five pages isGRANTED; and


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3) Coughlin s appeal regarding summary eviction from the Property is DENIED2 IT IS SO ORDERED3 DATED this 3.CL day o March, 2012.456789

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7

PATRICK FLANAGANDistrict Judge


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CERTIFIC TE OF SERVICE2 Pursuant to NRCP 5 b), I hereby certify that I am an employee of the Second Judicial3 District Court of the State ofNevada, County ofWashoe; that on this day ofMarch,4 2012, I electronically filed the following with the Clerk of the Court by using the ECF system5 which will send a notice of electronic filing to the following:6 Zachary Coughlin, Esq. on his own behalf; and7 Richard Hill, Esq. for Matt Merliss.8 I deposited in the Washoe County mailing system for postage and mailing with the9 United States Postal Service in Reno, Nevada, a true copy of the attached document addressed

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CV11-03628-2799126 Flanagan Order of 3 30 12 Upholding 1708 Decision 26405 00696jbig2lossy Ocrt

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