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Summerfield v. Coca Cola Bottling Co. of the Southwest11/20/1997
motion to continue is not an appealable order. In Lucas v. Page, 89 Nev. 248, 249, 510 P.2d 868, 869 (1973), this court ruled that where no final judgment had been entered, an appeal from the denial of a motion to continue was premature under NRCP 72(b), which provided for appeals only from a final judgment. Thus, BCI contends, "Summerfield lacks standing to pursue any appeal of the lower court's denial of her motion to continue." BCI misapprehends the issue. Here, while Summerfield argues on appeal that the court erred in denying her motion to continue, her appeal is not from that denial; rather, she has appealed from an order granting summary judgment, which clearly is a final judgment under NRAP 3A (formerly NRCP 72(b)). Therefore, Summerfield has appropriately raised this issue on appeal.
In Harrison v. Falcon Products, 103 Nev. 558, 560, 746 P.2d 642, 642-43 (1987), this court held that the trial court abused its discretion when it granted a motion for summary judgment after plaintiff had requested a continuance. In Harrison, defendant moved for summary judgment approximately twenty-one months after the suit had been filed. In plaintiff's opposition to the motion, he requested more time pursuant to NRCP 56(f). The court refused this request and granted summary judgment in defendant's favor. This court reversed, holding that where the plaintiff was not dilatory in conducting discovery, "granting summary judgment at this early stage of proceedings was an abuse of discretion." Id.
The case here is nearly identical to Harrison. The motion for summary judgment was made less than two years after the case was filed and only fifteen months after BCI was named as a defendant. Summerfield was not dilatory in the discovery process, despite the district court's finding that " situation was brought about by Miss Summerfield's inattentiveness." A district court's findings of fact may be set aside on appeal where they are clearly erroneous and not supported by substantial evidence. Gibellini v. Klindt, i10 Nev. 1201, 1204, 885 P.2d 540, 542 (1994) . There is no evidence in the record to suggest that Summerfield was dilatory. To the contrary, although financial constraints and a falling out with her previous attorney may have caused some delay, Summerfield filed her pre-trial conference memoranda and responded to BCI's discovery requests in a timely manner. Summerfield conducted initial discovery to the extent that she obtained the information contained in BCI's pre-trial conference memorandum. She had the instant Coca Cola can examined by an appropriate expert. The fact that Summerfield requested a continuance in order to obtain experts at trial is also reflective of diligence in conducting discovery. See Halimi v. Blacketor, 105 Nev. 105, 770 P.2d 531 1989).
It is true that here plaintiff moved to continue before summary judgment was granted, then renewed the motion during the summary judgment hearing; while in Harrison, the plaintiff asked for a continuance under NRCP 56(f) as part of his opposition to the motion for summary judgment. Harrison, 103 Nev. at 559, 746 P.2d at 642. We conclude that this is a minor procedural difference and not a material distinction. In Summerfield's motion to continue, Roitman had affirmed that should a continuance be granted, Summerfield would be able to procure an expert to testify as to proximate cause. Thus, in both Harrison and the present case, the award of a motion for summary judgment and the concurrent denial of a request to continue operated to fatally limit the respective plaintiffs' abilities to conduct discovery.
Therefore, we conclude that the district court abused its discretion in denying Summerfield's motion to continue. Accordingly
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