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Electronically Filed
Feb 24 2022 03:16 p.m.
Elizabeth A. Brown
Clerk of Supreme Court
IN THE SUPREME COURT OF THE STATE OF NEVADA
Supreme Court No. 82559
District Court Case No. 09OC005791B
REZA ZANDIAN, A/K/A GOLAMREZA ZANDIANJAZI, A/K/A GHOLAM REZA ZANDIAN, A/K/A REZA JAZI, A/K/A J. REZA JAZI, A/K/A G. REZA JAZI, A/K/A GHONOREZA ZANDIAN JAZI, AN INDIVIDUAL,
Appellant,
vs.
JED MARGOLIN, AN INDIVIDUAL,
Respondent.
RESPONDENT’S NRAP 38 MOTION FOR SANCTIONS
This was Appellant’s fourth failed appeal to this Court from the underlying district court action. Like Appellant’s last appeal, this appeal was dismissed because the post-judgment order Appellant appealed from was not a special order after final judgment (“SOAFJ”) that could be appealed pursuant to NRAP 3A(b). Also like the last appeal, Appellant did not provide legitimate jurisdictional basis for his appeal. These facts and the facts below show that Appellant is undeterred from filing baseless appeals designed to misuse the appellate process and force Respondent to
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incur further attorneys’ fees. Accordingly, Respondent Jed Margolin moves this Court for an order imposing NRAP 38 sanctions to deter future baseless appeals and misuse by the Nevada appellate process by Appellant.
MEMORANDUM OF POINTS AND AUTHORITIES
I. BACKGROUND
Respondent Margolin filed his Complaint against Appellant Zandian and his various cohorts on December 11, 2009, and on June 24, 2013, a Default Judgment was entered against Appellant. 1 ROA at 1[1]; 6 ROA at 1251-57.
On December 20, 2013, Appellant filed a Motion to Set Aside the Default Judgment, which was denied on February 6, 2014. 7 ROA at 1554-67. On March 12, 2014, Appellant appealed the denial of his Motion to Set Aside to this Court. 7 ROA at 1568-75 (Supreme Court No. 65205). On June 23, 2014, Appellant appealed the district court’s award of attorneys’ fees and costs against him (Supreme Court No. 65960), which was issued after entry of the Default Judgment. 11 ROA at 2524-41. This Court affirmed the Default Judgment and the attorneys’ fee and cost award on October 19, 2015. 12 ROA at 2978-80.
On November 6, 2015, the district court entered an Order Granting the Motion for Debtor’s Examination and to Produce Documents, whereby Appellant was required to produce documents by December 21, 2015, and to appear for a debtor’s
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[1] The Record on Appeal is cited to herein as (volume number) ROA at (page number(s)).
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examination in February of 2016. 12 ROA at 2985-92. On February 3, 2016, the Court held Appellant in contempt for failing to produce documents as ordered by the Court and issued a Warrant of Arrest. 13 ROA at 3112-16. An Amended Warrant of Arrest for Appellant issued on June 7, 2019. 15 ROA at 3508-09.
On December 10, 2015, Appellant appealed the district court’s Order Granting Respondent’s Motion for Debtor’s Examination and to produce documents. 13 ROA at 3000-10 (Supreme Court No. 69372). On January 7, 2016, this Court entered an Order to Show Cause why Appellant’s appeal should not be dismissed for lack of jurisdiction because the district court’s December 10, 2015 debtor’s examination order was not a SOAFJ. 13 ROA at 3098-99. On March 4, 2016, this Court dismissed the appeal because the district court’s debtor’s examination order was not a SOAFJ pursuant to NRAP 3A(b). 13 ROA at 3154-55.
After discovering that Appellant had fraudulently transferred property to third parties to avoid Respondent’s Default Judgment, Respondent filed his Motion to Void Deeds, Assign Property and For Writ of Execution (“Motion to Void Deeds”) on May 3, 2016, which sought to set aside Appellant’s numerous fraudulent transfers. 13-14 ROA at 3162-3463. Appellant never opposed Respondent’s Motion to Void Deeds, and on June 2, 2016, Respondent filed and served a Request for Submission for the Motion to Void Deeds. 14 ROA at 3488-90. On that same day, June 2, 2016, Appellant filed a Notice of Pendency of Chapter 15 Petition for Recognition of a Foreign Proceeding in the district court, which led to Honorable
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Judge Russell staying the district court case. 14 ROA at 3473-87;14 ROA at 3491 - 93.
Between June of 2016 and October of 2020, Appellant and Respondent litigated the underlying Chapter 15 case, as well as two ancillary adversary proceedings, which were all dismissed with prejudice on October 14, 2020. 15 ROA at 3516-20. On January 15, 2021, Appellant resubmitted the Motion to Void Deeds in the district court along with a proposed Order, which was granted on January 19, 2021. 15 ROA at 3511-28. Respondent then served the Notice of Entry of Order granting his Motion to Void Deeds on January 22, 2021, and this appeal was filed on February 25, 2021. 15 ROA at 3529-38, 3539.
On February 16, 2022, this Court entered its Order Dismissing Appeal in which this Court found that the district court’s Order granting Respondent’s Motion to Void Deeds could not be appealed as a SOAFJ under NRAP 3A(b). Id. This Court further found that Appellant had not provided any basis for the appeal and had “effectively conceded that no other statute or rule specifically provides for an appeal from the enforcement order” (i.e., the January 19, 2021 Order granting Respondent’s Motion to Void Deeds). Id.
II. ARGUMENT
This Court has limited jurisdiction, and may only consider direct appeals authorized by statute or court rule. Brown v. MHC Stagecoach, LLC, 129 Nev. 343, 345, 301 P.3d 850, 851 (2013). The burden is on the party seeking to invoke the jurisdiction of the Nevada Supreme Court to establish the Nevada Supreme Court
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does in fact have jurisdiction. Moran v. Bonneville Square Assocs., 117 Nev. 525, 527, 25 P.3d 898, 899 (2001).
This Court has jurisdiction to consider an appeal only when the appeal is authorized by statute or court rule. See NRAP 3A(b) (listing orders and judgments from which an appeal may be taken); see also Taylor Constr. Co. v. Hilton Hotels, 100 Nev. 207, 209, 678 P.2d 1152, 1153 (1984) (listing appealable orders). A cursory review of NRAP 3A(b) demonstrates that an execution order like the January 19, 2021 Order granting Respondent’s Motion to Void Deeds is not listed as an independently appealable order under NRAP 3A(b). In its February 16, 2022 Order Dismissing Appeal, this Court held that Appellant has cited no statute or court rule that would allow for an appeal from an order that relates to the enforcement of a prior judgment. Id. Again, as stated above, on March 4, 2016 in this same case, this Court dismissed Appellant’s third appeal to this Court (Supreme Court No. 69372) because Appellant had not provided any legitimate basis for his appeal under NRAP 3A(b). 13 ROA at 3154-55. The March 4, 2016 Order and the February 16, 2022 Order are very similar.
An appeal that lacks any merit – like this one – constitutes a misuse of the appellate process and is a frivolous appeal. See Works v. Kuhn, 103 Nev. 65, 69, 732 P.2d 1373, 1376 (1987). Pursuant to NRAP 38(b), this Court may impose sanctions in the form of attorney’s fees and costs where “an appeal has frivolously been taken or been processed in a frivolous manner.” NRAP 38(b). Specifically, an
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appeal is frivolous when it has been filed “solely for purposes of delay” or “whenever the appellate processes of the court have otherwise been misused.” NRAP 38(b). Again, this is the fourth appeal Respondent has been forced to litigate and the second frivolous appeal that lacked any jurisdictional basis. Enough is enough.
III. CONCLUSION
For all of the foregoing reasons, Respondent respectfully requests that this Court impose the monetary sanctions pursuant to NRAP 38 in the manner requested. If the Court grants Respondent’s Motion, Respondent will submit an itemized list of fees and costs expended in this appeal if this Court so requests.
DATED this 24th day of February, 2022.
BROWNSTEIN HYATT FARBER SCHRECK, LLP
By: /s/ Matthew D. Francis
Matthew D. Francis
Nevada Bar No. 6978
Arthur A. Zorio
Nevada Bar No. 6547
5520 Kietzke Lane, Suite 110
Reno, NV 89511
Telephone: 775.324.4100
Facsimile: 775.333.8171
Email: mfrancis@bhfs.com
azorio@bhfs.com
Attorneys for Respondent JED MARGOLIN
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CERTIFICATE OF SERVICE
Pursuant to NRAP 25(b), I certify that I am an employee of Brownstein Hyatt Farber Schreck, LLP, and on this 24th day of February, 2022, I served the document entitled RESPONDENT’S NRAP 38 MOTION FOR SANCTIONS on the parties listed below in the manner described below:
Mark Forsberg, Esq.
Rick Oshinski, Esq.
Oshinski & Forsberg, Ltd.
504 E. Musser Street, Suite 202
Carson City, NV 89701
rick@oshinskiforsberg.com
mark@oshinskiforsberg.com
[ ] VIA U.S. MAIL: by placing a true copy thereof enclosed in a sealed envelope with first class postage thereon fully prepaid, in the United States mail at Reno, Nevada as addressed to the foregoing party.
[ ] VIA COURIER: by delivering a copy of the document to Federal Express for first priority delivery to the foregoing party in Paris, France.
[x] VIA ELECTRONIC SERVICE: by electronically filing the document with the Clerk of the Court using the ECF system which served the foregoing parties
electronically:
/s/ Jeff Tillison
Employee of Brownstein Hyatt Farber Schreck, LLP
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