Cite as: Vega v. State

126 Nev. Adv. Op. No. 33

August 12, 2010

 

IN THE SUPREME COURT OF THE STATE OF NEVADA

 

No. 53752

 

BERNARDO PRADO VEGA,

Appellant,

    vs.

THE STATE OF NEVADA,

Respondent.

 

            Appeal from a judgment of conviction, pursuant to a jury verdict, of two counts of lewdness with a child under the age of 14, one count of attempted sexual assault of a minor under the age of 14, three counts of sexual assault of a minor under the age of 14, one count of sexual assault of a minor under the age of 16, and two counts of open or gross lewdness.  Eighth Judicial District Court, Clark County; Valerie Adair, Judge.

            Affirmed in part, reversed in part, and remanded.

 

Susan D. Burke, Las Vegas, for Appellant.

Catherine Cortez Masto, Attorney General, Carson City; David J. Roger, District Attorney, Steven S. Owens, Chief Deputy District Attorney, and Elissa Luzaich, Deputy District Attorney, Clark County, for Respondent.

 

BEFORE HARDESTY, DOUGLAS and PICKERING, JJ.

 

OPINION

 

By the Court, HARDESTY, J.:

            In this opinion, we address three issues on appeal.

            First, we consider whether appellant Bernardo Vega’s constitutional right to confrontation under the Confrontation Clause, Crawford v. Washington, 541 U.S. 36 (2004), and Melendez-Diaz v. Massachusetts, 557 U.S. ­___, 129 S. Ct. 2527 (2009), was violated.  We conclude that Vega’s constitutional right to confrontation was violated when the district court erroneously admitted the testimonial statements from an unavailable expert witness without the witness previously being subjected to cross-examination.  However, we conclude that the error did not affect Vega’s substantial rights and did not amount to plain error because the testifying expert offered her own opinions independent of those of the unavailable expert witness.

            Second, we consider whether the district court properly admitted evidence that the child victim made two suicide attempts during the time period when she was subjected to sexual abuse.  Vega asserts that this evidence was irrelevant and intended to appeal to the emotions of the jury.  We disagree.  The State introduced evidence regarding the victim’s suicide attempts to demonstrate that Vega had subjected the victim to ongoing and repetitive sexual abuse, and to show the effect and harm the abuse had on the victim.  Therefore, we conclude that it was not manifest error for the district court to admit this evidence.

            Third, Vega challenges the sufficiency of the evidence to convict him on counts 4, 5, and 9 of sexual assault with a minor under the age of 14 because the record does not show that the child victim was under the age of 14 at the time of the sexual assaults.  We conclude that based on the evidence presented at trial, a rational jury could have reasonably determined that the victim was under the age of 14 at the time the sexual assaults charged in counts 4 and 5 occurred, but not when the sexual assault charged in count 9 occurred.  Thus, we conclude that there was sufficient evidence to support Vega’s convictions on counts 4 and 5, but that there was insufficient evidence to support his conviction on count 9.

FACTS

            The child victim was born September 30, 1990, and lived in Las Vegas with her mother, her stepfather Vega, and her brother.  Vega moved into the family home when the victim was approximately four years old, and he began sexually abusing the victim when she was eight years old.  Despite the victim’s two suicide attempts, Vega continued to sexually abuse the victim until December 2006, when she reported the abuse to her mother and then eventually to the police.

Sexual abuse

            Vega committed various forms of sexual abuse of the child victim beginning when she was eight years old.  In addition to the other incidents of sexual abuse, the evidence showed that the victim would habitually suck her thumb while sleeping and Vega would remove the victim’s thumb and insert his penis into her mouth.  The first instance of this form of abuse occurred when the victim was 12 years old; however, she awoke when Vega removed her thumb and saw Vega’s penis out of his pants and in front of her face.  The victim testified that over the course of the next two years there were other occasions when she would wake up with Vega’s penis in her mouth.  She would hit Vega and then go to the bathroom and brush her teeth.  These assaults eventually subsided when the victim was 14 years old and she stopped sucking her thumb.

            Vega’s sexual assault of the victim escalated when she entered middle school.  The victim testified that around this time Vega placed his fingers into her vagina.  This occurred on several occasions while she slept on the couch during the summer months when she was either in the seventh or eighth grade.[1]  On cross-examination, the victim testified that the digital penetration may have occurred in the summer between her eighth and ninth grade years, but she could not specify her exact age, either 13 or 14 years old.

            The victim also testified that, on a single occasion, Vega penetrated her vagina with his penis.  She recalled a specific incident where she was sleeping on the couch and awoke to find that her shorts were at her ankles and Vega was on top of her with his pants down and that it felt like his penis was in her vagina.  She then kicked and screamed at Vega to get him off of her, and he told her to be quiet because the neighbors would hear the commotion.  Although the victim was unable to identify her specific age at the time of the assault—she again was not sure whether she was 13 or 14 years old at the time—she specifically recalled that she only slept on the couch in the daytime during the summer months and, for this reason, she believed that this incident occurred around the eighth grade during the summer.

Suicide attempts

            The victim testified that she attempted suicide on two separate occasions in an effort to stop the abuse and to get away from Vega.  The first suicide attempt occurred in March 2005 while the victim was 14 years old and in the ninth grade.  The victim obtained sleeping pills from a drawer in Vega’s bedroom and confronted Vega, telling him that she was going to commit suicide because she “didn’t want to be around him anymore.”  After taking the pills, the victim testified that she only remembered waking up in the hospital, but she did not tell anyone of the sexual abuse.  The victim testified that a few weeks after the first suicide attempt, Vega once again began the sexual abuse by touching her breasts and genitals.

            The second suicide attempt occurred in November 2006 when the victim again ingested sleeping pills.  After being released from the hospital, the victim wrote a letter to her mother explaining that Vega had been molesting and abusing her since she was eight years old.  During an argument with her mother, the victim told her about the letter and asked that she read it.  After reading the letter, her mother took the victim to stay at her aunt’s house for a few weeks while the victim’s mother returned home to confront Vega about the accusations.  Vega admitted to the victim’s mother that he sexually abused the victim.

Police investigation

            The victim met with Las Vegas Metropolitan Police Department (LVMPD) Detective John Baltas and his partner in December 2006 and provided them with details of the sexual abuse.  Acting on that evidence, Detective Baltas and his partner went to Vega’s residence, and Vega agreed to accompany them to the police department and to participate in an interview.  Detective Baltas testified that during the interview Vega admitted to committing various forms of sexual abuse upon the victim.  However, Vega continually denied that he penetrated the victim’s vagina with his penis.  At the conclusion of the interview, Vega wrote a letter to the victim apologizing for his actions.

Sexual abuse examination

            The victim underwent a sexual abuse examination by Nurse Phyllis Suiter at the Clark County Child Advocacy Center.  During the examination, Suiter obtained the victim’s medical history and history of sexual abuse by asking the victim a series of questions, and requested that the victim describe the different acts of sexual abuse, as well as any resulting emotional or physical effects from the abuse.  Suiter also performed a physical examination of the victim’s vaginal area, which was recorded by video and depicted by diagram.  In conjunction with the sexual abuse examination, Suiter prepared a written report that included her questions, the victim’s responses, the victim’s medical history and history of sexual abuse, and Suiter’s findings indicating that there was a “healed transection” on the victim’s hymen.

            Because Suiter was unavailable to testify at trial, the State asked Dr. Neha Mehta to review Suiter’s examination report and the diagram and video of the examination.  At trial, Dr. Mehta testified regarding her own training and experience, and relayed to the jury Suiter’s training and qualifications.  She further summarized Suiter’s questions to the victim and the victim’s responses to those questions depicting the victim’s medical history and history of sexual abuse, described in general how an examination is performed, and recounted Suiter’s findings from the examination.  Dr. Mehta went on to explain and interpret Suiter’s diagram and markings and generally described what scarring or evidence will be present on the hymen if a penis or other object is inserted into the vagina.  Dr. Mehta testified that, while independently reviewing the video recording of Suiter’s examination of the victim, she found an area of concern, and that based on her review of the video, her findings were consistent with Suiter’s written findings—there was a “healed transection” on the victim’s hymen.

Post-sexual abuse

            After reporting the abuse, the victim struggled in school and eventually withdrew from the eleventh grade in February 2007 when she was 16 years old.  The victim testified that prior to withdrawing from the eleventh grade she had attended school without repeating or being held back in any grade.

            Following a jury trial, Vega was convicted on counts 1 and 3—lewdness with a child under the age of 14; count 2—attempted sexual assault with a minor under the age of 14; counts 4, 5, and 9—sexual assault with a minor under the age of 14; count 6—sexual assault with a minor under the age of 16; and counts 7 and 8—open or gross lewdness.  Vega now appeals the judgment of conviction.

DISCUSSION

Confrontation Clause violation

            Vega argues that it was a violation of the Confrontation Clause of the Sixth Amendment to the United States Constitution to permit Dr. Mehta to testify regarding Suiter’s observations, findings, and statements contained in Suiter’s sexual abuse examination report.  Because Vega failed to object to Dr. Mehta’s testimony at trial, our review is limited to plain error only.  Nelson v. State, 123 Nev. 534, 543, 170 P.3d 517, 524 (2007).  To amount to plain error, the “‘error must be so unmistakable that it is apparent from a casual inspection of the record.’”  Id. (quoting Garner v. State, 116 Nev. 770, 783, 6 P.3d 1013, 1022 (2000), overruled on other grounds by Sharma v. State, 118 Nev. 648, 56 P.3d 868 (2002)).  Vega “must demonstrate that the error was prejudicial in order to prove that it affected his substantial rights.”  Id.

            Under Crawford v. Washington, 541 U.S. 36 (2004), the testimonial statement of an otherwise unavailable witness is inadmissible “unless the defendant had an opportunity to previously cross-examine the witness regarding the witness’s statement.”  Medina v. State, 122 Nev. 346, 353, 143 P.3d 471, 476 (2006).  Recently, in Melendez-Diaz v. Massachusetts, the United States Supreme Court concluded that the admission of a forensic analysts’ affidavits that reported that a seized substance was cocaine, without the analysts themselves being subject to cross-examination, violated the defendant’s right to confrontation.  557 U.S. ___, ___, ___, 129 S. Ct. 2527, 2530, 2542 (2009).  The Court observed that the analysts’ affidavits were “functionally identical to live, in-court testimony, doing ‘precisely what a witness does on direct examination.’”  Id. at ___, 129 S. Ct. at 2532 (quoting Davis v. Washington, 547 U.S. 813, 830 (2006)).  In response to the government’s claim that the analysts’ affidavits should not be subject to the Confrontation Clause because they represent “neutral and scientific testing,” the Court concluded that confrontation of the analysts would be beneficial to “test[ ] [the] analysts’ honesty, proficiency, and methodology—the features that are commonly the focus in the cross-examination of experts.”  Id. at ___, 129 S. Ct. at 2536-38 (internal quotations omitted).  Requiring the cross-examination of an analyst or examiner is “one means of assuring accurate [results]” and “[l]ike expert witnesses generally, an analyst’s [or examiner’s] lack of proper training or deficiency in judgment may be disclosed.”  Id. at ___, 129 S. Ct. at 2536-37.

            The threshold question in evaluating a confrontation right under Crawford and Melendez-Diaz is whether the statement was testimonial in nature.  See Chavez v. State, 125 Nev. ___, ___, 213 P.3d 476, 484 (2009).  Although Crawford does not specifically define what constitutes a testimonial statement, we have previously concluded that “a statement is testimonial if it ‘“would lead an objective witness”’ to reasonably believe ‘“that the statement would be available for use at a later trial.”’”  Medina, 122 Nev. at 354, 143 P.3d at 476 (quoting Flores v. State, 121 Nev. 706, 719, 120 P.3d 1170, 1178-79 (2005) (quoting Crawford, 541 U.S. at 52)).  In a child sexual assault context, an examination conducted pursuant to an investigation by law enforcement generally renders the examination report testimonial.  Cf. Ramirez v. State, 114 Nev. 550, 561, 958 P.2d 724, 731 (1998).

            Here, after meeting with LVMPD detectives, the victim underwent a sexual abuse examination conducted by Suiter at the Clark County Child Advocacy Center.  Suiter prepared a written report, which included her questions to the victim and the victim’s answers concerning the victim’s medical history and history of sexual abuse, the nature of the sexual abuse, the frequency of the abuse, and the emotional and physical results of the abuse, and Suiter’s observations and findings.  In addition to the written report, the sexual abuse examination included a gynecological examination of the victim, which was recorded on video and depicted by diagram.

            Because Suiter was unavailable to testify at trial, the State asked Dr. Mehta to review Suiter’s written report and the diagram and video of the examination.  Without objection, the district court permitted Dr. Mehta to testify as to the contents of Suiter’s written report, including Suiter’s questions and the victim’s responses concerning the victim’s medical history and history of sexual abuse and Suiter’s observations and findings upon conducting the gynecological examination.

            Dr. Mehta testified that a primary purpose of conducting a sexual assault examination in conjunction with a police investigation is to provide evidence as to whether a sexual assault has occurred.  Accordingly, we conclude that a medical professional conducting such an examination would reasonably believe that his or her report and findings regarding the examination would be available for use at a later trial.  Therefore, because Suiter could have reasonably believed that her report would be available for use at a later trial, we determine that her written report was testimonial in nature and inadmissible unless Suiter was subject to cross-examination under Crawford and Melendez-Diaz.

            Dr. Mehta’s testimony regarding the content of Suiter’s written report effectively admitted the report into evidence, which functioned as the equivalent of Suiter’s testimony, without subjecting Suiter to cross-examination. To the extent that Dr. Mehta’s testimony admitted Suiter’s written report, including Suiter’s questions, the victim’s responses detailing the victim’s medical history and history of sexual abuse, and Suiter’s observations and findings without Suiter being subject to cross-examination, we conclude that this violated the Confrontation Clause, Crawford, and Melendez-Diaz.  In contrast, however, after reviewing the video recording and the diagram of the gynecological examination, Dr. Mehta offered her independent opinion as an expert witness that there was a “healed transection” on the victim’s hymen.  We conclude that Dr. Mehta’s independent opinion based on the diagram and video recording does not violate the Confrontation Clause, Crawford, or Melendez-Diaz because Dr. Mehta’s judgment, proficiency, and methodology were subject to cross-examination.

            Therefore, following the reasoning in Crawford and Melendez-Diaz, we conclude that the district court erroneously permitted Dr. Mehta to testify regarding the contents of Suiter’s sexual abuse examination report because the report was testimonial and Vega was not afforded the opportunity to cross-examine Suiter.  We now turn our attention to whether this error was prejudicial and, therefore, affected Vega’s substantial rights.

      Confrontation Clause violation did not amount to plain error

            When an error has been properly preserved for review, we traditionally review the prejudicial effects of a Crawford violation under a harmless-error analysis.  However, because Vega did not object at trial, thereby failing to preserve the error for review, the Crawford violation is reviewed for plain error, requiring Vega to demonstrate that the error was prejudicial and, therefore, affected his substantial rights.  Nelson, 123 Nev. at 543, 170 P.3d at 524.

            In this case, the State argues that any improper testimony by Dr. Mehta was either repetitive or inconsequential and, therefore, was not prejudicial and did not affect Vega’s substantial rights.  We agree.  In the portion of Dr. Mehta’s testimony that we concluded violates Crawford and Melendez-Diaz, Dr. Mehta recounted Suiter’s questions, the victim’s answers depicting the victim’s medical history and history of sexual abuse, and Suiter’s observations and findings.  However, this testimony was duplicative of the victim’s detailed testimony describing the sexual abuse and consistent with Dr. Mehta’s independent opinion that the victim’s hymen had a “healed transection.”  Furthermore, Dr. Mehta’s testimony does not implicate Vega as having caused the “healed transection,” and she acknowledged that objects other than a penis could have caused the injury.  As such, we conclude that Dr. Mehta’s erroneously admitted testimony was inconsequential, and Vega has failed to demonstrate that the Crawford and Melendez-Diaz violation was prejudicial.  Therefore, we conclude that the violation did not affect Vega’s substantial rights.

Relevant evidence

            Next, Vega asserts that the district court erred when it allowed the State to introduce evidence of the victim’s two suicide attempts, arguing that this evidence was irrelevant and intended to emotionally appeal to the sympathies of the jury.  A trial court has broad discretion to determine the admissibility of evidence, Thompson v. State, 125 Nev. ___, ___, 221 P.3d 708, 714 (2009), and its “determination to admit or exclude evidence is given great deference and will not be reversed absent manifest error.”  Baltazar-Monterrosa v. State, 122 Nev. 606, 613-14, 137 P.3d 1137, 1142 (2006).  Relevant evidence is admissible pursuant to NRS 48.025, and is defined as “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.”  NRS 48.015.

            Here, the State argues that evidence of the suicide attempts was relevant in order to provide a complete picture of the extent of the abuse, show how the abuse was ultimately revealed, and supply support for its theory that the victim was not a willing participant in the sexual abuse.  When questioned about her motives for attempting suicide, the victim testified that she was trying to stop the abuse and avoid “be[ing] around [Vega] anymore.”  The victim further testified that after she attempted suicide a second time, she and her mother had an argument and she ultimately revealed to her mother that Vega had been sexually abusing her since she was eight years old.

            We conclude that the evidence of the victim’s suicide attempts was relevant as it had a tendency to establish that it is more probable than not that Vega had sexually assaulted the victim and that the abuse had occurred for several years. Thus, we conclude that it was not manifest error for the district court to admit this evidence.[2]

Sufficiency of the evidence

            Notwithstanding Vega’s convictions on multiple counts of sexual misconduct with a minor, Vega’s appeal concerning the sufficiency of the evidence is limited to challenging his convictions on counts 4, 5, and 9 of sexual assault of a minor under the age of 14.

            The Due Process Clause of the United States Constitution requires that each element that constitutes a crime be proven beyond a reasonable doubt.[3]  Rose v. State, 123 Nev. 194, 202, 163 P.3d 408, 414 (2007).  Vega argues that because the victim could not definitively testify as to whether the abuse occurred before or after she was 14 years old, there was insufficient evidence for a rational jury to determine beyond a reasonable doubt that the abuse was committed prior to the victim reaching the age of 14.

            “When determining whether a jury verdict was based on sufficient evidence to meet due process requirements, we will inquire ‘“whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”’”  Id. (quoting Origel-Candido v. State, 114 Nev. 378, 381, 956 P.2d 1378, 1380 (1998) (quoting Koza v. State, 100 Nev. 245, 250, 681 P.2d 44, 47 (1984))).  The jury’s verdict will not be disturbed on appeal when there is substantial evidence supporting it.  LaPierre v. State, 108 Nev. 528, 530, 836 P.2d 56, 57 (1992).  We have previously held that in sexual assault cases a “victim’s testimony alone is sufficient to uphold a conviction.”  Rose, 123 Nev. at 203, 163 P.3d at 414.  This court has further recognized that “child victims are often unable to articulate specific times of events and are oftentimes reluctant to report the abuse to anyone until quite some time after the incident.”  LaPierre, 108 Nev. at 531, 836 P.2d at 58.

            Here, since the parties argue that age is an essential element of the crimes charged in counts 4, 5, and 9, we must balance the due process requirement of proving each element beyond a reasonable doubt with this court’s recognition in LaPierre—that a child victim is often unable to specifically articulate the timing of events—in order to determine whether sufficient evidence supports Vega’s conviction on each count he challenges on appeal such that a rational jury could have found that the victim’s age had been established beyond a reasonable doubt.

      Count 4—sexual assault with a minor under the age of 14 (digital penetration)

            On direct examination, the victim testified that Vega digitally penetrated her vagina while she slept on the couch in the living room during the summer months when she was in the seventh or eighth grade, but she could not specifically remember her age.  However, on cross-examination, the victim testified that the abuse occurred during either the eighth or “going to ninth” grade and again stated that she did not know whether she was 13 or 14 years old.  Although the victim could not specifically recall her age at the time the abuse occurred, the evidence presented contained certain age identifiers that a rational jury could have utilized to make logical inferences with respect to the victim’s age at the time.  See Adler v. State, 95 Nev. 339, 344, 594 P.2d 725, 729 (1979) (stating that it is the jury’s “prerogative to make logical inferences which flow from the evidence”).

            Our review of the record shows that the victim was born on September 30, 1990.  The victim often equated her age with her school grade level, and she progressed through school without repeating or being held back in any grade level.  However, the victim testified that she withdrew from the eleventh grade (the 2006/2007 school year) in February 2007 at the age of 16.  The victim further testified that she first attempted suicide during the ninth grade (the 2004/2005 school year) in March 2005, when she was 14 years old.  Her second suicide attempt was in November 2006, when she was 16 years old.  And finally, during its closing argument, the State illustrated for the jury the victim’s age and correlating grade and school year from the time she started kindergarten until she withdrew from school in the eleventh grade.

            Based on the evidence presented, we determine that by using these age identifiers, a rational jury could logically infer that the victim turned 14 years old on September 30, 2004, and, thus, the victim would have already begun her 2004/2005 ninth grade school year.  Therefore, we conclude that the jury could have determined beyond a reasonable doubt that the victim was under the age of 14 when Vega sexually assaulted her as pleaded in count 4.

            Accordingly, we conclude that there was sufficient evidence to support Vega’s conviction on count 4.

      Count 5—sexual assault with a minor under the age of 14 (penile penetration)

            The age-identifying evidence presented to support Vega’s conviction on count 5 is similar to that evidence supporting his conviction on count 4.  The victim testified that Vega sexually assaulted her by penetrating her vagina with his penis while she was sleeping on the couch during the summer when she was in the eighth grade.  Again, during cross-examination, Vega challenged the victim’s recollection of her age at the time of the abuse.  The victim testified that while she could not recall whether she was 13 or 14 years old, she specifically recalled that she only slept on the couch in the daytime during the summer months, and, for this reason, she believed that this incident occurred around the time that she was in the eighth grade during the summer.

            Based on the evidence presented, we determine that by using the age identifiers described above, a rational jury could logically infer that the victim was under the age of 14 when the abuse alleged in count 5 occurred.  Therefore, we conclude that there was sufficient evidence to support Vega’s conviction on count 5.

      Count 9—sexual assault with a minor under the age of 14 (fellatio)

            Unlike the evidence presented to support Vega’s convictions on counts 4 and 5, our review of the record indicates that the evidence lacks specificity sufficient enough to support Vega’s conviction on count 9.  In particular, the victim testified that she habitually sucked her thumb while sleeping until she was 14 years old, and that there were occasions when Vega would remove her thumb and insert his penis into her mouth.  The victim testified that Vega first attempted to do this when she was 12 years old, but that he was unsuccessful because she woke up when her thumb was removed.[4]  The victim testified that there were other occasions where she woke up with Vega’s penis in her mouth.  On cross-examination, the victim testified that she could not say with certainty but she was probably 14 years old and in the ninth grade when this abuse occurred.  However, the victim’s testimony does not clarify, and there is no other evidence in the record that shows, whether these other occasions of abuse occurred when the victim was under the age of 14.

            The victim’s testimony was the only evidence presented upon which the jury could have relied to determine whether the victim was under the age of 14 when this sexual abuse occurred.  Based on the uncertainty of this testimony, we determine that no rational jury could have found beyond a reasonable doubt that the victim was under the age of 14 when the alleged sexual abuse associated with count 9 occurred.  Accordingly, we conclude that there was insufficient evidence to support Vega’s conviction on count 9, and we reverse Vega’s conviction on this count.[5]

            Accordingly, we affirm the judgment of conviction on all counts except for count 9, which we reverse, and we remand this matter to the district court for entry of an amended judgment of conviction consistent with this opinion.

 

DOUGLAS and PICKERING, JJ., concur.

 

**********FOOTNOTES**********

[1]        We note that throughout the victim’s testimony, she was unable to recall her specific age at the time of the abuse and often referred to her school grade level as an indication of her age.

[2]        Vega also argues that the State’s reference to the victim’s involvement in a homosexual relationship was irrelevant and improper.  We agree.  However, because the State’s reference was isolated, without any further follow-up questions, and overwhelming evidence supports Vega’s conviction, we conclude that the reference was harmless beyond a reasonable doubt.  See Domingues v. State, 112 Nev. 683, 693, 917 P.2d 1364, 1372 (1996) (holding that the admission of irrelevant evidence was harmless in light of the overwhelming evidence supporting the conviction).

[3]        Both Vega and the State argue that age is an element of the crime charged under NRS 200.366.  As such, we do not address whether the age of the victim is an element of the crime or a sentencing factor.  See Harris v. United States, 536 U.S. 545 (2002).

[4]        For this incident, Vega was convicted of count 2—attempted sexual assault with a minor under the age of 14.  Vega does not challenge the sufficiency of the evidence for this conviction on appeal.

[5]        Vega also argues that the jury instructions were confusing and failed to properly instruct the jury on the State’s burden to prove each element of the crime.  We conclude that this argument is without merit because Vega failed to object or request a jury instruction at trial, and instruction no. 14, in pertinent part, clearly informs the jury that “[t]his presumption [of innocence] places upon the State the burden of proving beyond a reasonable doubt every material element of the crime charged.”  See Flanagan v. State, 112 Nev. 1409, 1423, 930 P.2d 691, 700 (1996).

*****************************

Cite as: Schiff v. Winchell

126 Nev. Adv. Op. No. 32

August 12, 2010

 

IN THE SUPREME COURT OF THE STATE OF NEVADA

 

No. 53168

 

RENATE SCHIFF, TRUSTEE, SCHIFF PROPERTIES,

Appellant,

    vs.

CALVIN WINCHELL, AN INDIVIDUAL D/B/A CGL SEAFOOD, INC.,

Respondent.

 

            Appeal from a district court amended judgment in an insurance action.  Eighth Judicial District Court, Clark County; David Wall, Judge.

            Affirmed.

 

Muije & Varricchio and John W. Muije, Las Vegas, for Appellant.

Glade L. Hall, Reno, for Respondent.

 

BEFORE HARDESTY, DOUGLAS and PICKERING, JJ.

 

OPINION

 

By the Court, DOUGLAS, J.:

            In this appeal, we consider whether the district court erred in determining that the date of the original judgment on a jury verdict, rather than the date of an amended judgment entered on remand, was the appropriate date for determining the rate of prejudgment interest.  We conclude that the district court did not err and that the appropriate date for determining prejudgment interest is the date the original judgment was entered.

FACTS

            The initial suit in this case involved a dispute between a commercial landlord and tenant.  Respondent Calvin Winchell sued appellant Renate Schiff, as trustee of Schiff Properties, for conversion.  The matter proceeded to trial and the jury found in Winchell’s favor.  On March 7, 2006, the district court entered a judgment against Schiff, awarding Winchell monetary damages.  The judgment was appealed and this court issued an opinion on October 9, 2008, affirming in part, reversing in part, and remanding with instructions to offset Winchell’s award of damages by the amount he recovered under his insurance policy.  See Winchell v. Schiff, 124 Nev. 938, 193 P.3d 946 (2008).  Pursuant to our instructions, the district court entered an amended judgment on December 9, 2008.

            During proceedings on remand, the parties presented arguments regarding which judgment date should be used to determine the rate of prejudgment interest.  Schiff argued that December 9, 2008, the date the amended judgment on remand was entered, is the appropriate date for determining the prejudgment interest rate.  Conversely, Winchell argued that March 7, 2006, “[t]he date the [original] judgment [was] entered[,] should be the date that prejudgment interest should be set.”

            After hearing arguments from both parties, the district court determined that the proper date for determining the prejudgment interest rate was March 7, 2006, the date the original judgment was entered.  This appeal followed.

DISCUSSION

            Schiff argues that the only appropriate judgment date for purposes of determining prejudgment interest is December 9, 2008.  Schiff reasons that although the original judgment was entered pursuant to the jury verdict on March 7, 2006, the only time an accurate damage amount was conclusively determined was December 9, 2008.  Schiff contends that since the damage amount was not conclusively determined and liquidated until the entry of the amended judgment after remand on December 9, 2008, the March 2006 date should not be the operative date for purposes of fixing the interest rate.  Accordingly, Schiff asserts that this court should reverse the judgment as entered and direct the district court to enter a corrected judgment with interest set by the rate effective on the December 9, 2008, amended judgment date.

            Winchell counters that Lee v. Ball, 121 Nev. 391, 116 P.3d 64 (2005), clearly states that the appropriate interest rate for prejudgment interest is “the single rate in effect on the date of judgment.”  Id. at 396, 116 P.3d at 67.  Winchell argues that public policy requires the effective interest rate be set on the date judgment is entered, rather than after an appeal has been settled, because the date judgment is entered is closer in time to the plaintiff’s loss.  Further, Winchell suggests that setting the interest rate after an appeal would provide an incentive for parties to pursue an appeal in hopes that the interest rates will decrease over the course of the appeal.

            Schiff responds by arguing that the unusual circumstance of a significant modification to a judgment in this case requires that the operative date for determining prejudgment interest be the date of entry of the amended judgment after remittitur.  Accordingly, Schiff argues that “the date that a final undisputed, liquidated damage amount is established is the date that should control” the applicable interest rate, and therefore, December 9, 2008, is the operative date for determining the prejudgment interest rate in this case.

Standard of review

            “We review an award of prejudgment interest for error.”  Kerala Properties, Inc. v. Familian, 122 Nev. 601, 604, 137 P.3d 1146, 1148 (2006).  Pursuant to NRS 17.130(1) prejudgment interest is awarded on judgments “for any debt, damages, or costs.”  Further, NRS 17.130(2) allows for the award of prejudgment interest, and provides that

When no rate of interest is provided by contract or otherwise by law, or specified in the judgment, the judgment draws interest from the time of service of the summons and complaint until satisfied, except for any amount representing future damages, which draws interest only from the time of the entry of the judgment until satisfied, at a rate equal to the prime rate at the largest bank in Nevada as ascertained by the Commissioner of Financial Institutions on January 1 or July 1, as the case may be, immediately preceding the date of judgment, plus 2 percent. The rate must be adjusted accordingly on each January 1 and July 1 thereafter until the judgment is satisfied.

This court has said that “until satisfied” in NRS 17.130(2) occurs upon the entry of the judgment in the district court.[1]  Lee, 121 Nev. at 396, 116 P.3d at 67.

Date of judgment

            We first look to statutory authority to determine which judgment date triggers the applicable interest rate.  NRS 17.130(2) provides, in relevant part, that the interest rate to be applied to any prejudgment interest is the rate that is established “immediately preceding the date of judgment.”  In this appeal, the district court entered a judgment on the jury’s verdict in March 2006 and the amended judgment upon remand was entered in December 2008.  Under NRS 17.130(2)’s plain language, we have not previously been called upon to determine what judgment date applies when this court affirms in part, reverses in part, and remands the matter to the district court with instructions to offset a plaintiff’s award.  Thus, we turn to a Nevada rule governing a similar issue and caselaw from other states for guidance.

            NRAP 37 establishes the judgment date for purposes of the accrual of post-judgment interest when an appeal has been decided by this court.  Logically, the judgment date is the same for purposes of determining the appropriate rate of prejudgment interest.  Pursuant to NRAP 37(a), “[u]nless the law provides otherwise, if a money judgment in a civil case is affirmed, whatever interest is allowed by law is payable from the date when the district court’s judgment was entered.”

            Further, NRAP 37(b) states, “[i]f the court modifies or reverses a judgment with a direction that a money judgment be entered in the district court, the mandate must contain instructions about the allowance of interest.”  In our previous opinion, this court did not modify or reverse the judgment with a direction that a judgment for money be entered; we affirmed the judgment for money but remanded with instructions to offset Winchell’s judgment by the amount he recovered under his insurance policy.  Winchell, 124 Nev. at 949-50, 193 P.3d at 953-54.  This court has not previously made a determination as to whether a modification to the amount of a money judgment constitutes an affirmation or a reversal of the original judgment.  We take the opportunity to do so now.

            In neighboring states, courts have determined that when a judgment is modified on appeal, the modification is treated as an affirmation of judgment and interest accrues from the date of entry of the original judgment.  Pearson v. Schmitt, 492 P.2d 269, 270 (Or. 1971) (“The view as now taken by a majority of the states is that where a money award has been modified on appeal . . . then the interest on the award, as modified, should run from the date of original judgment.”); L. R. James, Annotation, Date From Which Interest on Judgment Starts Running, as Affected by Modification of Amount of Judgment on Appeal, 4 A.L.R. 3d 1221 (1965 & Supp. 2010); Stockton Theatres, Inc. v. Palermo, 360 P.2d 76, 78 (Cal. 1961); Munoz v. City of Union City, 92 Cal. Rptr. 3d 527, 531 (Ct. App. 2009); Lakin v. Senco Products, Inc., 987 P.2d 476, 478 (Or. 1999); Brown v. David K. Richards & Co., 978 P.2d 470, 477 (Utah Ct. App. 1999); Fulle v. Boulevard Excavating, Inc., 610 P.2d 387, 389 (Wash. Ct. App. 1980).  Each of these states considers any modification on appeal, whether upward or downward, as an affirmation of the original judgment.  Stockton Theatres, 360 P.2d at 78; Munoz, 92 Cal. Rptr. 3d. at 531; Brown, 978 P.2d at 477; Lakin, 987 P.2d at 478; Fulle, 610 P.2d at 389.  We adopt the same rationale for Nevada.

            Since this court effectively affirmed the original judgment in the prior appeal in this case, we conclude that the original date of the district court judgment should set the prejudgment interest rate as set forth in NRS 17.130(2).  Accordingly, we affirm the amended judgment of the district court.

 

HARDESTY and PICKERING, JJ., concur.

 

**********FOOTNOTES**********

[1]        Lee states, “[u]nder the plain language of NRS 17.130(2), the district court should have calculated prejudgment interest at the single rate in effect on the date of judgment.”  Lee, 121 Nev. at 396, 116 P.3d at 67.

*****************************

Cite as: George L. Brown Ins. v. Star Ins. Co.

126 Nev. Adv. Op. No. 31

August 12, 2010

 

IN THE SUPREME COURT OF THE STATE OF NEVADA

 

No. 50741

 

GEORGE L. BROWN INSURANCE AGENCY, INC., A NEVADA CORPORATION; AND TERRI ALSOP, AN INDIVIDUAL,

Appellants,

    vs.

STAR INSURANCE COMPANY, A MICHIGAN CORPORATION;  MEADOWBROOK, INC., A MICHIGAN CORPORATION; AND MEADOWBROOK OF NEVADA, INC., A NEVADA CORPORATION,

Respondents.

 

            Appeal from a district court final judgment in an insurance matter.  Eighth Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge.

            Reversed and remanded.

 

Snell & Wilmer LLP and John S. Delikanakis, Las Vegas, and Matthew L. Lalli and Troy L. Booher, Salt Lake City, Utah, for Appellants.

Laxalt & Nomura, Ltd., and James E. Murphy, Las Vegas; Berman, Berman & Berman, LLP, and William M. Aitken, Los Angeles, California, for Respondents.

 

BEFORE HARDESTY, DOUGLAS and PICKERING, JJ.

 

OPINION

 

By the Court, DOUGLAS, J.:

            In this appeal, we consider what approach Nevada should adopt in interpreting indemnity provisions in insurance contracts when an indemnitee seeks to be indemnified on claims arising out of the indemnitee’s own negligence.  We conclude that Nevada should adopt the majority rule regarding indemnification; therefore, the contract must expressly or explicitly reference the indemnitee’s own negligence before an indemnitee may be indemnified for his or her own negligence.  Consequently, we conclude that the district court erred in granting summary judgment in favor of respondents Star Insurance Company, Meadowbrook, Inc., and Meadowbrook of Nevada, Inc. (collectively, Star), because there are genuine issues of material fact concerning fault that must be decided before the indemnification clause at issue here may be enforced.[1]

FACTS

The parties and their relationship

            Appellant George L. Brown Insurance Agency, Inc., is an independent insurance agency that contracts to sell insurance policies for various insurance carriers, including Star Insurance Company.  In exchange for selling Star’s insurance policies, Brown receives a commission.

            Brown and Star’s contract (Producer Agreement) contains an indemnification provision, which requires Brown to indemnify Star for losses arising from Brown’s performance under the contract.  The provision states that:

[Brown] shall defend, indemnify and hold harmless [Star] for any and all damages, losses, liabilities, fines, penalties, costs, and all other expenses reasonably incurred by [Star] including reasonable attorneys fees, for liabilities imposed upon [Star] in connection with or arising out of any claim, suit, hearing, action or proceeding, or threat thereof in which [Star] is involved by reason of [Brown] having performed services for [Star] under this Agreement, or having failed to perform services required under this Agreement.

The contract also requires that Brown receive prompt notice of any claim, suit, hearing, action, or proceeding to invoke the indemnification provision.

Disputed insurance policy

            James Seeley is the sole owner of JBC Drywall, Inc.  In September 1998, Seeley incorporated JBC in California, where the company established its principal place of business and cities of licensure.  JBC employee Oscar Shatswell resided in La Mirada, California, and was employed to transport materials for JBC.  Although Shatswell left his JBC truck in Las Vegas an average of one day per week, Shatswell’s work for JBC was predominately in California.

            In February 2000, Seeley began moving JBC’s operations from California to Las Vegas, Nevada.  That same month, Seeley contacted Terri Alsop, Brown’s agent, to obtain workers’ compensation insurance for JBC’s employees.  However, Alsop advised JBC that his workers’ compensation insurance would only cover employees that lived and worked in Nevada.  Seeley informed her that would not be an issue because if he kept any of his California employees, they would be moving to Nevada.  He further stated that his employees would only be traveling into California occasionally for business.

            In April 2000, Seeley personally moved to Henderson, Nevada, where he began to operate JBC from his home.  Although JBC conducted business in Nevada, it was still incorporated in California and continued some of its operations in California.  Additionally, JBC continued to employ individuals who lived and worked in California, including Shatswell, who remained a resident of California after JBC’s move.  In May 2000, Alsop completed a workers’ compensation insurance application on behalf of JBC.  Alsop testified that everything she was told about JBC’s operations was contained in the narrative portion of the application.  The narrative portion of the application described JBC’s operations as follows:

[I]nsured trucks drywall from the Mfg to job sites.  He has employees of the job site who drive Grade All and lifts the drywall into the buildings (no more than 2 stories).  He pick ups drywall from 3 mfg [sic] in Las Vegas (95% of his business) and one Mfg in La Mirada, California (5% one truck once a week).[2]

            In August 2000, Alsop notified JBC that she had secured insurance in accordance with his requests through Star Insurance.  Alsop testified that she informed Seeley both orally and in writing that the workers’ compensation policy would only cover “those of his employees that live or are a resident in Nevada.”  In Alsop’s letter to Seeley, she stated:

I have secured a quote from Star Insurance Company which is enclosed for your review.  The annual premium is $16,897.  This quote is based on three employees at $36,000 each annual payroll who are employed and live in Nevada.  I have requested an All State Endorsement be added to your policy.  This will cover your employees who are employed in Nevada but are temporarily working in another state.

The policy, which was effective August 2, 2000, included coverage for JBC’s employees for bodily injury by accident and promised coverage in other states; California was not specifically excluded.

            Gary Cooper, senior program director and underwriter of Meadowbrook Insurance Company and Star, testified that he never saw JBC’s application.  However, Alsop testified that she advised Cooper in May 2000 that JBC had moved or was moving to Nevada from California.  Cooper only remembered Alsop informing him that JBC was no longer in California.  Cooper’s understanding was that JBC was solely a “Nevada risk,” meaning JBC only did business in and worked in Nevada.  He further testified that at the time JBC purchased the policy, he told Alsop that he “was not interested in writing a California account” and that he “made it very clear to [Alsop].”  He explained that Star’s system only allowed Nevada policies to be written because one could only designate Nevada payroll and class codes in the Internet system Alsop used to write the policy.

Accident in California and arbitration

            On September 6, 2000, while transporting materials in California for JBC, Shatswell was injured in an accident.  Shatswell and JBC made a claim under the Star policy.  However, Star denied coverage stating that the policy only insured JBC’s employees and operations in Nevada, not in California.

            In December 2000, Seeley and JBC commenced litigation in California regarding Shatswell’s workers’ compensation claim.  The California Workers’ Compensation Board referred the issue of insurance coverage to an arbitrator with the California Workers’ Compensation Appeals Board.  The California arbitrator ruled that the policy covered Shatswell’s injury in California.  The arbitrator stated that “the insurance policy which ultimately issued to Seeley and JBC does not expressly limit the terms of its coverage to Nevada operations.”  This conclusion was predicated on the “Other States Coverage” provision on the first page of the policy, which stated that the policy applied to all states except five that were expressly listed on the policy.  California was not among the expressly excluded states in the policy.  Thus, the arbitrator ruled that JBC is “covered for an injury involving work in ‘other states.’”

            Moreover, the arbitrator ruled that Star had “actual and constructive knowledge of the fact that [JBC] had an on-going business operation within the State of California.”  The arbitrator based this conclusion on Alsop’s knowledge of JBC’s business operations in California, which the arbitrator appeared to impute to Star based on Star’s relationship with Alsop.  In fact, the arbitrator stated that Alsop was “speaking on behalf of the insurance company.”

            After the arbitrator’s ruling, the California Court of Appeals and the California Supreme Court upheld the decision, which stated that Star was required under JBC’s policy to provide coverage for Shatswell’s injuries.  Star is currently paying the insurance benefits to Shatswell under the policy.

Procedural history of this case

            After the California arbitration, JBC initiated this lawsuit by filing a complaint against both Star and Brown in Nevada.[3]  Subsequently, Star filed an amended answer to the complaint and filed a cross-claim for indemnity against Brown and Alsop.  Specifically, Star sought contractual indemnification for defending this lawsuit against JBC, defending the California arbitration against Shatswell’s claims, and past and future payments made to Shatswell under the JBC insurance policy.

            Star filed a motion for summary judgment against Brown and Alsop on the contractual indemnification claims, seeking to recover the payments it made to Shatswell and any other liability it has in connection with JBC’s complaint, by invoking the indemnity provision.  Specifically, Star sought

(1) indemnity from Brown and Alsop in the event it is found liable to JBC on the complaint; (2) indemnity from Brown and Alsop for all sums which Star has paid or will pay to JBC’s injured employee; and (3) the fees and costs Star has incurred in the various litigation arising from the claims of JBC and its employee.

Based on the indemnification clause, the district court entered summary judgment in favor of Star.  Brown and Alsop now appeal.

DISCUSSION

            Brown argues that the district court erred when it granted Star’s motion for summary judgment.  Brown contends that the district court erred when it interpreted the indemnification provision as requiring Brown to indemnify Star’s negligence in the absence of express language that includes indemnity for the indemnitee’s own negligence.  We agree.  Where the indemnification clause does not specifically and expressly include indemnity for the indemnitee’s own negligence, an indemnification clause “for any and all liability” will not indemnify the indemnitee’s own negligence.  Because we conclude that indemnification only applies when the indemnitee is not negligent, in the absence of explicit and express contractual language to the contrary, summary judgment was not appropriate in this case.

Standard of review

            “This court reviews a district court’s grant of summary judgment de novo, without deference to the findings of the lower court.”  Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005).  Summary judgment is proper when, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.  Id.  An issue of material fact is genuine when the evidence is such that a rational jury could return a verdict in favor of the nonmoving party.  Id. at 731, 121 P.3d at 1031.

Contractual indemnity based on the indemnitee’s negligence

            “Contractual indemnity is where, pursuant to a contractual provision, two parties agree that one party will reimburse the other party for liability resulting from the former’s work.”  Medallion Dev. v. Converse Consultants, 113 Nev. 27, 33, 930 P.2d 115, 119 (1997), superseded by statute as stated in Doctors Company v. Vincent, 120 Nev. 644, 654, 98 P.3d 681, 688 (2004).  The scope of a contractual indemnity clause is determined by the contract and is generally interpreted like any contract.  Rossmoor Sanitation, Inc. v. Pylon, Inc., 532 P.2d 97, 104 (Cal. 1975).

            An indemnitor’s contractual obligation to indemnify its indemnitee for the indemnitee’s own negligence is a matter of first impression in Nevada.  The United States District Court for the District of Nevada dealt with interpretation of an express contractual indemnity agreement in Aetna Casualty and Surety Co. v. L.K. Comstock & Co., 488 F. Supp. 732 (D. Nev. 1980), rev’d on other grounds, 684 F.2d 1267 (9th Cir. 1982).  The Aetna court, in the absence of controlling Nevada precedent, noted that while “[t]he traditional majority position is that strict construction should be applied to such indemnity contracts so that express or explicit reference to the indemnitee’s own negligence is required,” id. at 740, the court assumed “that Nevada would follow the modern minority rule because it is the more enlightened view.”  Id. at 742.  “The modern minority rule is that an indemnity provision ‘for any and all liability’ means all liability, including that arising from the indemnitee’s concurrent negligence.”  Id.

            The rationale behind “the minority view is that such indemnity contracts are so common in the modern business world that courts should leave the parties with their bargain for ‘any and all liability.’”  Id. (citing Martin v. Maintenance Co., Inc., 588 F.2d 355 (2d Cir. 1978); Jacksonville Terminal Co. v. Railway Express Agency, Inc., 296 F.2d 256, 262 (5th Cir. 1961)).  Applying the minority rule, the Aetna court held that the fact that the indemnitee was concurrently negligent was immaterial, and the indemnitor was bound by its contract to indemnify the indemnitee in full.  Id. at 742.  We find this rationale unpersuasive.

            In this case, it appears the district court applied the minority view in granting summary judgment in favor of Star in finding that the indemnification provision of the Producer Agreement was “clear and unambiguous . . . [and] entitled to be enforced by the court.”

            We reject the rationale of the so-called minority rule because a general clause is not sufficient to impose such an extraordinary remedy.  Instead, we adopt the majority rule—an express or explicit reference to the indemnitee’s own negligence is required to indemnify an indemnitee for his or her own negligence—because “the character of [such an] indemnity [is] so unusual and extraordinary, that there can be no presumption that the indemnitor intended to assume the responsibility unless the contract puts it beyond doubt by express stipulation, and no inference from words of general import can establish it.”  41 Am. Jur. 2d Indemnity § 16 (2005).

             Consistent with the majority rule, “contracts purporting to indemnify a party against its own negligence will only be enforced if they clearly express such an intent and a general provision indemnifying the indemnitee ‘against any and all claims,’ standing alone, is not sufficient.”  Camp, Dresser & McKee v. Paul N. Howard, 853 So. 2d 1072, 1077 (Fla. Dist. Ct. App. 2003) (internal citations omitted); see also 41 Am. Jur. 2d Indemnity § 18 (2005).  “[A] contract of indemnity will not be construed to indemnify a party against loss or damage resulting from its own negligent acts unless such intention is expressed in clear and unequivocal terms.”  Economy Forms v. J.S. Alberici Constr., 53 S.W.3d 552, 554 (Mo. Ct. App. 2000).  Unlike the modern minority rule, the majority rule provides clarity and fairness to the parties involved.  Under the majority rule, the wrongdoer faces the consequences of his or her actions rather than “cast[ing] the burden of negligent actions upon those who were not actually at fault.”  United States v. Seckinger, 397 U.S. 203, 212 (1970).  Thus, the modern minority rule allows for too much to be read into the terms of a contract that the parties may not have intended and could substantially benefit one party to the extreme detriment of the other.

            Adopting the majority rule is also consistent with our recognition of the express negligence doctrine, which “provides that a party demanding indemnity from the consequences of its own negligence must express that intent in specific terms.”  Lehmann v. Har-Con Corp., 76 S.W.3d 555, 559-60 (Tex. App. 2002).  “[T]he purpose of the express negligence doctrine [is] to prevent surprise to the indemnitor.”  Id. at 560.  “Under the doctrine of express negligence, the intent of the parties must be specifically stated within the four corners of the contract.”  Id.  Further, indemnification “provisions are strictly construed and will not be held to provide indemnification unless it is so stated in clear and unequivocal terms.”  GKN Co. v. Starnes Trucking, Inc., 798 N.E.2d 548, 552 (Ind. Ct. App. 2003) (“[W]e are mindful that to obligate one party for the negligence of another is a harsh burden that a party would not lightly accept.”).

            The indemnification provision of the Producer Agreement states, “[Brown] shall defend, indemnify and hold harmless [Star] for any and all damages, losses, liabilities, fines, penalties, costs, and all other expenses reasonably incurred by [Star] . . . .”  There is no express or explicit reference to negligence and this general provision is not sufficient to indemnify Star against its own (possible) negligence.  Because the indemnification clause does not cover Star’s own negligence, the district court’s grant of summary judgment is improper because it must first be determined whether Star was negligent before enforcement of the indemnification clause is appropriate.

            Here, the district court did not make a finding of negligence, instead stating “[t]hat, as a matter of law, Star is not required to prove, as part of its prima facie claim for contractual indemnity, that it was not negligent” and “[t]hat the issue of negligence is speculative.”  We disagree and conclude that the district court must make a finding of whether Star was negligent before it can determine the applicability of the indemnification clause.  Therefore, summary judgment was not appropriate in this case, as genuine issues of material fact remain concerning Star’s fault that must be decided before the indemnification clause at issue here may be enforced.

            Accordingly, we reverse the district court’s grant of summary judgment and remand for further proceedings consistent with this opinion.

 

HARDESTY, J. concurs.

 

**********FOOTNOTES**********

[1]        We do not reach the other issues appellants raise as they are resolved by our reversal and remand.

[2]        We understand “Mfg” to mean manufacturer or manufacturing site.

[3]        After prevailing on their workers’ compensation claim in California, Seeley and JBC brought claims against Brown and Alsop for professional negligence and against Star for breach of insurance contract, breach of duty of good faith and fair dealing, and breach of statutory duties.  Seeley and JBC’s claims were dismissed on various motions unrelated to the issues in this appeal in February 2005, and only the claims between Brown, Alsop, and Star remain.

*****************************

PICKERING, J., concurring:

            While I concur in the decision to reverse summary judgment and remand for further proceedings in this case, I do so because I find an issue of fact as to whether Star issued the problematic insurance policy “by reason of [Brown] having performed services for [Star] under this Agreement,” as the indemnity clause in the Producer Agreement requires.  This conclusion depends on reading the indemnity clause as applying only when Brown’s acts or omissions caused Star to incur liability it could not avoid and would not have incurred otherwise.  I read the clause this way not because Star seeks indemnity for negligence—I don’t see that it does—but based on ordinary rules of contract construction.

            As noted, I do not see this case as involving a question of indemnity for negligence.  The party seeking indemnification, Star, was held contractually liable on a policy of insurance that Brown, acting as Star’s producing agent, originated.  Star now seeks contractual indemnity from Brown.  There is no claim that Star was negligent toward the insured or toward Brown; hence, there is no question of Star being indemnified by Brown for Star’s negligence.  At most, Star seeks indemnity for having issued a policy it wouldn’t have if Brown had provided complete information about the prospective insured’s business on the application Brown forwarded.  Brown and Star disagree on whether Star knew what Brown knew (or should have known) about the insured when Star issued the policy.

            The Producer Agreement defined the insurance risks Star authorized Brown to solicit and submit.  If Brown exceeded the scope of its authority in taking this partly California-based insured’s application and forwarding it to Star as unexceptionable, then Brown may be liable to Star as a matter of agency law, Restatement (Third) of Agency § 8.09 cmt. b, illus. 1 (2006), and/or under the indemnity clause in the Producer Agreement (Star having become “involved” in a “claim, suit, hearing, action or proceeding” giving rise to “liabilit[y]” “by reason of [Brown] having performed services for [Star] under this Agreement”).  However, Brown opposed summary judgment with competent proof that Star knew that the insured still had operations in California when it accepted the application and issued the policy—in other words, that Star knew what Brown knew about the applicant and chose to write the policy anyway.  This was sufficient to create a genuine issue of material fact as to whether Star incurred contractual liability to the insured on its own and not “by reason of” Brown.  See id. cmt. b (an agent’s liability to a principal for unauthorized actions “does not extend to loss that the principal could have avoided”).  Star’s different interpretation of the indemnity clause would lead to Brown being a reinsurer, not simply a producer, which is an unreasonable reading of the Producer Agreement as a whole.  See 5 Margaret N. Kniffin, Corbin on Contracts § 24.22, at 240 (1998) (noting “preference for an interpretation that will result in contract terms that are reasonable”).  Using the fault-based rubric the parties persuade the majority to adopt, if this commercially extraordinary result was what the parties intended, they should have said so much more clearly than they did.  Cf. Restatement (Third) of Torts: Apportionment of Liability § 22 cmt. f (2000) (“An indemnitee can recover contractual indemnity for his or her own legally culpable conduct only if the contract is clear on that point,” but noting that, “[i]f the contract is otherwise clear, it need not contain specific words, such as ‘negligence’ or ‘fault.’”).

            I thus concur in my colleagues’ decision to reverse summary judgment and remand but for the reasons and on the limited issues outlined above.

 

*****************************

Cite as: Quinlan v. Camden USA, Inc.

126 Nev. Adv. Op. No. 30

July 29, 2010

 

IN THE SUPREME COURT OF THE STATE OF NEVADA

 

No. 53521

 

AUDREY QUINLAN,

Appellant,

    vs.

CAMDEN USA, INC.,

Respondent.

 

            Appeal from a district court judgment on a jury verdict in a tort action.  Eighth Judicial District Court, Clark County; James M. Bixler, Judge.

            Affirmed in part, vacated in part, and remanded.

 

Benjamin B. Childs, Las Vegas, for Appellant.

Parnell & Associates and Richard B. Parnell, Las Vegas, for Respondent.

 

BEFORE HARDESTY, DOUGLAS and PICKERING, JJ.

 

OPINION

By the Court, PICKERING, J.:

            Audrey Quinlan sued Camden USA, Inc. for damages after she tripped on a sidewalk in its apartment complex.  She lost at trial and was ordered to pay Camden $41,976 in attorney fees and costs.  The district court based its award on the offer of judgment Camden made under NRS 17.115 and NRCP 68, which Camden sent by facsimile.  Although Quinlan’s lawyer received the offer of judgment, he had not expressly consented to fax service as NRCP 5(b)(2)(D) requires.  It was error to shift fees and costs based on Camden’s offer of judgment because NRS 17.115, NRCP 5(a), and NRCP 68(a) all require an offer of judgment to be served in compliance with NRCP 5 and Camden’s was not.

            With the exception of the fee award, no other reversible error appears.  Accordingly, we affirm the judgment but reverse the award of fees and costs and remand so the district court can calculate and award Camden its taxable costs under NRS 18.020(3).

I.

            In contesting Camden’s offer of judgment, Quinlan does not deny she received it.  Her challenge is technical: An offer of judgment is a creature of statute and rule; NRS 17.115, NRCP 5(a), and NRCP 68 all require “service” for an effective offer of judgment; Camden’s faxed offer of judgment, though received, was not “served” in a way NRCP 5(b) recognizes; thus, the district court erred in using Camden’s offer of judgment to shift fees and costs to Quinlan.

            Quinlan makes a valid argument.  NRCP 5(a) is entitled “Service: When Required,” while NRCP 5(b) is entitled “Same: How Made.”  NRCP 5(a) specifies that “every . . . offer of judgment . . . shall be served upon each of the parties.”  NRS 17.115 and NRCP 68(a) also say an offer of judgment must be “serve[d].”  For an offer of judgment to shift fees and costs as NRS 17.115 and NRCP 68 allow, its service must comply with NRCP 5(b).  See Magnuson v. Video Yesteryear, 85 F.3d 1424, 1429 (9th Cir. 1996) (“In cases involving Rule 68 offers, service . . . must comply with Fed. R. Civ. P. 5(b).”).

            Quinlan had counsel.  NRCP 5(b)(1) provides that, “[w]henever under these rules service is required or permitted to be made upon a party represented by an attorney, the service shall be made upon the attorney.”  NRCP 5(b)(2) lists the permissible ways to serve a party’s attorney.  While NRCP 5(b)(2) permits fax service, it does so only if the receiving attorney “has consented to service by electronic means.”  The consent must be express, filed with the clerk, and include specific information:

The served attorney’s . . . consent to service by electronic means shall be expressly stated and filed in writing with the clerk of the court and served on the other parties to the action. The written consent shall identify:

            (i) the persons upon whom service must be made;

            (ii) the appropriate address or location for such service, such as the electronic-mail address or facsimile number;

            (iii) the format to be used for attachments; and

            (iv) any other limits on the scope or duration of the consent.

NRCP 5(b)(2)(D) (emphasis added).

            Neither Quinlan nor her attorney filed the written consent to fax service that NRCP 5(b)(2)(D) requires.  However, Quinlan’s lawyer occasionally sent case-related papers via facsimile—including the informal offer to settle that prompted Camden’s offer of judgment.  Camden urges us to accept implied consent as an adequate substitute for express consent on these facts.

            Camden’s implied consent argument fails.  NRCP 5(b)(2)(D) uses “shall” to state its requirement of express written consent, filed with the clerk, to service by electronic means.  The “use of ‘shall’ is mandatory unless a rule’s construction demands a different interpretation to carry out the rule’s purpose.”  Moseley v. Dist. Ct., 124 Nev. 654, 664, 188 P.3d 1136, 1144 (2008).  Nevada adopted NRCP 5(b)(2)(D) in 2005 to “permit[ ] service by electronic means, including facsimile and electronic-mail, consistent with the 2001 amendments to the federal rule.”  NRCP 5 drafter’s note (2004).  Under Fed. R. Civ. P. 5, as amended in 2001, “[t]he consent [to fax service] must be express, and cannot be implied from conduct.”  Fed. R. Civ. P. 5 advisory committee’s note (2001).[1]

            We agree with the federal cases that have rejected implied consent to service by fax as a basis for upholding a faxed offer of judgment under Rules 5 and 68.  Ortiz-Moss v. New York City Dept. of Transp., 623 F. Supp. 2d 404, 407 (S.D.N.Y. 2008) (“[c]onsent to service by electronic means must be specifically agreed to in writing and cannot be implied from past conduct”; absent specific written consent, faxed acceptance of an offer of judgment is not effective even though the party receiving the fax did not object to such service earlier in the litigation) (internal citations omitted); McKenna v. Nat’l Action Fin. Servs., No. 07-60880-CIV, 2008 WL 1741495, at *1 (S.D. Fla. Apr. 11, 2008) (rejecting faxed offer of judgment where no written consent to fax service had been filed; Fed. R. Civ. P. 5 “requires service of an offer of judgment” and “service may be made by electronic means or other alternate means only if written consent is given”), reh’g denied, 2008 WL 5572637 (S.D. Fla. Apr. 23, 2008); see 4B C. Wright & A. Miller, Federal Practice & Procedure § 1147 (3d ed. 2002) (“Consent to service under Rule 5(b)(2)(D) must be in writing [and] . . . . cannot be inferred from the conduct of the intended recipient.”); Magnuson, 85 F.3d at 1429 (service by fax of the Rule 68 offer was inadequate, even though Magnuson apparently did receive a faxed copy of the offer) (decided under the pre-2001 version of Fed. R. Civ. P. 5(b)(2)).[2]

            In providing parties with the means to shift fees and costs, NRS 17.115 and NRCP 68 offer a tool not available at common law.  See Albios v. Horizon Communities, Inc., 122 Nev. 409, 431, 132 P.3d 1022, 1036-37 (2006) (“statutes permitting costs are in derogation of the common law [and] should be strictly construed”) (citing Bergmann v. Boyce, 109 Nev. 670, 679, 856 P.2d 560, 565-66 (1993)).  Use of this tool depends on meeting stated time deadlines, Palace Station Hotel & Casino v. Jones, 115 Nev. 162, 165, 978 P.2d 323, 325 (1999) (time calculations are critical to a predictable application of the offer of judgment rules), and other formal requirements.  Pombo v. Nevada Apartment Ass’n, 113 Nev. 559, 562, 938 P.2d 725, 727 (1997) (“An offer of judgment must be unconditional and for a definite amount in order to be valid for purposes of NRCP 68”). Predictability and fairness are not served by reading the formal service requirements out of NRS 17.115, NRCP 5, and NRCP 68, including NRCP 5(b)(2)(D)’s requirement of express written consent to service by electronic means.

            The district court upheld the fax service under EDCR 7.26(a)(3), which lists facsimile service as a permissible form of service but is silent on whether consent to such service is required and, if so, what form it must take.[3]  Considered by itself, in isolation from NRCP 5(b)(2)(D), EDCR 7.26(a)(3) can fairly be read to permit fax service as freely as service by mail or by hand.  When EDCR 7.26(a)(3) is read together with NRCP 5(b)(2)(D), however, the only reading that gives meaning to both rules is to read EDCR 7.26(a)(3) as permitting fax service in general, provided NRCP 5(b)(2)(D)’s express consent requirement has been met.  See Albios, 122 Nev. at 418, 422, 132 P.3d at 1028, 1030-31 (if possible, “this court will interpret a rule or statute in harmony with other rules and statutes,” especially where, as here, one provision is silent on specifics included in another).  A contrary reading puts EDCR 7.26(a)(3) in conflict with NRCP 5(b)(2)(D)’s express written consent requirement, in which case NRCP 5(b)(2)(D) still controls.  Cheek v. FNF Constr., Inc., 112 Nev. 1249, 1253, 924 P.2d 1347, 1350 (1996) (“‘[t]he district courts have rule-making power, but the rules they adopt must not be in conflict with the Nevada Rules of Civil Procedure’” (alteration in original) (quoting Western Mercury, Inc. v. The Rix Co., 84 Nev. 218, 222-23, 438 P.2d 792, 795 (1968), and citing NRCP 83, which states that “[e]ach district court . . . may from time to time make and amend rules governing its practice not inconsistent with these rules”).

            Since Camden’s offer of judgment was not properly served, it does not operate to shift fees and costs.  We therefore reverse their award and remand for the district court to determine Camden’s taxable costs.

II.

            Quinlan also asserts error in the district court’s admission of daytime photographs when her injury occurred at night; its refusal to grant her request for a jury view of the sidewalk; its allowance of a late-designated witness’s testimony; and its denial of her new trial motion.  We review these claims of evidentiary, trial, and post-trial error for an abuse of discretion, Sheehan & Sheehan v. Nelson Malley & Co., 121 Nev. 481, 492, 117 P.3d 219, 226 (2005) (explaining that the district court has “broad discretion in determining the admissibility of evidence” (internal quotation omitted)); Dep’t of Hwys. v. Haapanen, 84 Nev. 722, 723, 448 P.2d 703, 704 (1968) (indicating that the decision to grant or deny a jury viewing is reviewed for abuse of discretion); Southern Pac. Transp. Co. v. Fitzgerald, 94 Nev. 241, 244, 577 P.2d 1234, 1236 (1978) (“[t]he decision to grant or deny a motion for new trial rests within the sound discretion of the trial court and will not be disturbed . . . absent palpable abuse), and none exists here.

            Accordingly, we affirm the judgment on the jury’s verdict, vacate the judgment awarding fees and costs, and remand for calculation of taxable costs.

 

HARDESTY and DOUGLAS, JJ., concur.

 

**********FOOTNOTES**********

[1]        We note that Rules 9(c) and 13 of Nevada’s Electronic Filing Rules are not at issue on this appeal but that they impose consent and registration requirements that satisfy NRCP 5(b)(2)(D).

[2]        The facts before us stop short of those found to work an estoppel in Albertson v. Winner Automotive, No. Civ.A.01-116KAJ, 2004 WL 2435290 (D. Del. Oct. 27, 2004).  There, the defendant served its offer of judgment on the plaintiff by fax.  The plaintiff accepted the offered judgment by written “Notice of Acceptance,” which he formally served by hand.  The court treated the plaintiff’s “Notice of Acceptance” as consent to service by fax and held, further, that the defendant was estopped to disavow the validity of its faxed offer of judgment, noting that Rule 5(b) protects the recipient not the sender.  Id. at *5.

[3]        EDCR 7.26(a) states, in relevant part:

If service of an order or other paper is to be made on a party represented by an attorney, the service must be made on the attorney unless service on the party is ordered by the court.  Service on the attorney or on a party must be made by:

                        (1) delivering a copy or by mailing it to the last known address; or

                        (2) if no address is known, by leaving it with the clerk of the court; or

                        (3) facsimile transmission; or

                        (4) electronic transmission through the Court’s electronic filing system if the system provides for electronic service.

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Cite as: Boorman v. Nevada Mem’l Cremation Society

126 Nev. Adv. Op. No. 29

July 29, 2010

 

IN THE SUPREME COURT OF THE STATE OF NEVADA

 

No. 52492

 

DENISE BOORMAN, AN INDIVIDUAL AND AS THE PERSONAL REPRESENTATIVE OF RICHARD LESLIE FRANCIS BOORMAN; BILLY CHRISTIAN BOORMAN, A MINOR; DEAN ALFRED BOORMAN; RITA VAN INGEN; DIANE GOODWIN; AND GEMMA BARKER,

Appellants,

    vs.

NEVADA MEMORIAL CREMATION SOCIETY, INC., A NEVADA CORPORATION FORMERLY IDENTIFIED AS NEVADA FUNERAL SERVICE; STEVE ALLEN; CLARK COUNTY; CLARK COUNTY CORONER’S OFFICE; AND MONIQUE BEVERLEY,

Respondents.

 

            Certified questions under NRAP 5 relating to the alleged negligent handling of a deceased person’s remains.  United States District Court for the District of Nevada, Philip M. Pro, Judge.

            Questions answered.

 

John S. Rogers, Las Vegas; Capp & Marsh and Jonathan C. Capp, Oceanside, California, for Appellants.

David Roger, District Attorney, and Laura C. Rehfeldt, Deputy District Attorney, Clark County, for Respondents Clark County, Clark County Coroner’s Office, and Monique Beverley.

Freeman Law Firm and Robert W. Freeman Jr., Henderson, for Respondents Nevada Memorial Cremation Society and Steve Allen.

 

BEFORE THE COURT EN BANC.

 

OPINION

 

By the Court, PARRAGUIRRE, C.J.:

            The United States District Court for the District of Nevada certified ten questions relating to causes of action for the alleged negligent handling of a deceased person’s remains.[1]  The first three questions generally ask us to decide who may assert a cognizable emotional distress claim for the alleged negligent handling of a deceased person’s remains and to determine the necessary requirements to assert such a claim, without distinguishing between the defendant actors involved in this action.  Because our answer necessarily depends upon identifying the alleged negligent actor, we must re-craft those questions to focus on the two actors involved—a mortuary and the county coroner.  As a result of this re-crafting, we do not view it necessary to separately answer the questions relating to a county coroner’s duty not to lose, misplace, or misappropriate the deceased person’s organs.  In our view, the question of whether a county coroner owes duty not to lose, misplace, or misappropriate a deceased person’s organs is consumed within the question of whether the county coroner owes a duty not to negligently handle a deceased person’s remains.

            We therefore rephrase the ten certified questions to focus on three primary inquires.[2]  See, e.g., Palmer v. Pioneer Inn Assocs., Ltd., 118 Nev. 943, 945, 59 P.3d 1237, 1238 (2002) (rephrasing certified questions under NRAP 5).

            The first primary inquiry focuses on the mortuary.  Specifically, what relationship must a plaintiff have to a deceased person to assert a cognizable emotional distress claim related to the alleged mishandling of the deceased person’s remains by a mortuary?  Must the plaintiff observe or have some sensory perception of the act causing insult to their loved one’s remains?  And must the plaintiff demonstrate physical impact or serious emotional distress causing physical injury or illness?

            The second primary inquiry is much like the first but focuses on the county coroner.  Specifically, what relationship must a plaintiff have to a deceased person to assert a cognizable emotional distress claim related to the alleged mishandling of the deceased person’s remains by a county coroner?  Must the plaintiff observe or have some sensory perception of the act causing insult to their loved one’s remains?  And must the plaintiff demonstrate physical impact or serious emotional distress causing physical injury or illness?

            The third primary inquiry is whether a claim for conversion of a deceased human body or its parts exist under Nevada law.

            We answer these three questions as follows.  First, close family members who were aware of the death of a loved one and to whom mortuary services were being provided may assert an emotional distress claim for the negligent handling of a deceased person’s remains against a mortuary.  Those persons do not need to observe or have any sensory perception of the offensive conduct, and do not need to present evidence of any physical manifestation of emotional distress.  Second, the only person who may assert an emotional distress claim against a county coroner for the negligent handling of a deceased person’s remains is the person with the superior right to dispose of the decedent’s body.  That person does not need to observe or have any sensory perception of the offensive conduct, and does not need to present evidence of any physical manifestation of emotional distress.  Third, a claim for conversion of a deceased human body or its parts does not exist under Nevada law.

FACTS AND PROCEDURAL HISTORY

            These certified questions arise from a federal district court action brought by appellants Denise Boorman (Richard Boorman’s mother) and other family members (collectively, Boorman) against respondents Nevada Memorial Cremation Society (the mortuary), Clark County, and the employees of both entities, for returning Richard Boorman’s (Richard) body to England without its internal organs.

            Richard, a 29-year-old from London, England, died from what appeared to be an excessive consumption of alcohol and drugs while he was vacationing in Las Vegas for a bachelor party.  Following his death, his body was transported to the Clark County Coroner for an autopsy, where the county coroner removed the internal organs for examination.  The county coroner contends that the organs were then placed in a plastic bag between Richard’s legs, and that after the autopsy was complete, Richard’s body and its internal organs were sent to the mortuary.  After the mortuary embalmed Richard’s body, it sent his remains back to England.

            Upon receipt of his body, Boorman contends that the English authorities opened up Richard’s body cavity to discover that all the internal organs had been removed and replaced with a rolled up cloth sheet.  To date, Richard’s organs have not been located.

            Based upon these facts, Boorman filed an action in United States District Court for the District of Nevada alleging, among other things, that respondents were liable for claims of emotional distress, breach of fiduciary duty, and conversion for the negligent handling of Richard’s body.  The federal district court concluded that no controlling Nevada authority existed with regard to Boorman’s claims and certified ten questions for this court to answer, which we accepted.[3]

DISCUSSION

Inquiry related to the mortuary

            Boorman argues that close family members who are aware that mortuary services are being performed should have standing to assert an emotional distress claim for the alleged negligent handling of a deceased person’s remains.  Boorman further argues that those persons need not observe the offending acts or demonstrate any physical manifestation to succeed on such a claim.  We agree.

            This court has never had the opportunity to address the specific factual scenario raised in appellants’ federal complaint.  While we have recognized that an individual may have a cause of action for emotional distress in other contexts, see, e.g., Barmettler v. Reno Air, Inc., 114 Nev. 441, 447-48, 956 P.2d 1382, 1386-87 (1998) (concluding that direct victims of negligent conduct may bring a claim for emotional distress); Grotts v. Zahner, 115 Nev. 339, 340, 989 P.2d 415, 416 (1999) (recognizing witness-bystander claims for emotional distress), we have never been presented with the opportunity to discuss the scope of an emotional distress claim resulting from the alleged negligent handling of a deceased person’s remains.

            Although we have not addressed this issue in Nevada, the negligent handling of a deceased person’s remains is a commonly recognized tort.  For example, the California Supreme Court addressed this issue in Christensen v. Superior Court, which is helpful to our discussion.  820 P.2d 181 (Cal. 1991).

            In Christensen, friends and relatives of the decedent brought an emotional distress cause of action against a mortuary and crematory for negligently and intentionally mishandling the deceased’s remains.  See id. at 184-85 (alleging that mortuary and crematory defendants harvested decedent’s body parts and organs).  In determining the class of persons who may assert such a claim, the California Supreme Court rejected the limitation that only those persons who have the statutory right to control the disposition of the body and who contract for its disposition may assert an emotional distress claim.  Id. at 183.  That class of persons “is not a reliable indicator of the family members who may suffer the greatest emotional distress if the decedent’s remains are mishandled.”  Id. at 191.

            Instead, the Court reasoned that “[o]ne of several children of the decedent may arrange for the services on behalf of all siblings, as well as a surviving spouse or parent of the decedent [and, i]f so, the crematory or mortuary assumes a duty to all of these family members.”[4]  Id. at 191.  By undertaking such a duty, mortuary and crematory operators “create[ ] a special relationship obligating them to perform [funeral] services in the dignified and respectful manner the bereaved expect . . . .”  Id. at 193.  Therefore, the Court concluded that such a defendant owes a duty to “close family members who were aware that funeral and/or crematory services were being performed, and on whose behalf or for whose benefit the services were rendered.”  Id. at 183.

            We are persuaded by the California Supreme Court’s reasoning in Christensen as it relates to what class of person may assert an emotional distress claim against a mortuary.

            Unlike the duty of a county coroner, which we discuss in the next section, a mortuary voluntarily undertakes a duty to competently prepare the decedent’s body for the benefit of the bereaved.  See Christensen, 820 P.2d at 193.  While we must limit liability at some point, and thus conclude that a mortuary’s duty does not run to all persons potentially affected by the decedent’s passing, such as close friends and distant relatives, we cannot conclude that a mortuary only owes a duty to the person with the right to dispose of the body.

            Limiting recovery for emotional distress damages to the person with the right to dispose of the body would be an arbitrary delineation.  See id. at 191.  Certainly, in some instances the person with the right to dispose of the body would arguably suffer emotional distress upon learning about the negligent treatment of a loved one’s body.  However, in many other instances, a close family member who is not the person with the right to dispose of the body may be more affected by such negligent conduct.  Therefore, we conclude that close family members who are aware of both the death of a loved one and that mortuary services were being performed may bring an action for emotional distress resulting from the negligent handling of the deceased’s remains.

            We further conclude that persons who may assert such a claim do not need to observe or perceive the negligent conduct, or demonstrate any physical manifestation of emotional distress.  Requiring a potential plaintiff to observe or perceive the negligent conduct would essentially grant immunity to persons who negligently handle a deceased’s remains in many instances because the activities of a mortuary mostly occur behind closed doors.  See Contreraz v. Michelotti-Sawyers, 896 P.2d 1118, 1122 (Mont. 1995) (requiring a potential plaintiff to be present or observe the offending act “is an unreasonable and arbitrary limitation” and “[u]pholding such a rule would create an immunity that could protect mortuaries from their egregious conduct while barring recovery to those persons possibly suffering the greatest harm”).

            Also, our historical concern that emotional distress must be demonstrated by some physical manifestation of emotional distress is not implicated in this context.  We need not question the trustworthiness of an individual’s emotional anguish in cases involving desecration of a loved one’s remains.  See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 54, at 362 (5th ed. 1984) (“[A group of cases eliminating the physical manifestation requirement] has involved the negligent mishandling of corpses . . . [because there is] . . . an especial likelihood of genuine and serious mental distress, . . . which serves as a guarantee that the claim is not spurious.”); Allen v. Jones, 163 Cal. Rptr. 445, 450 (Ct. App. 1980) (concluding that “damages are recoverable . . . without physical injury for negligent mishandling of a corpse”); Brown v. Matthews Mortuary, Inc., 801 P.2d 37, 44 (Idaho 1990) (exempting the physical manifestation of emotional distress requirement in cases involving the negligent handling of a deceased person’s remains).

            Therefore, while a plaintiff must allege some emotional disturbance resulting from the defendant’s negligent conduct, there is no need to demonstrate any physical manifestation of that emotional distress.  Ultimately, the determination of whether a close family member should be able to recover any damages in such an action is a question for the trier of fact.[5]

Inquiry related to the county coroner

            Despite our conclusion in the previous section, we cannot conclude that the duty of a county coroner is as expansive as the duty of a mortuary.  Unlike a mortuary, which voluntarily undertakes a duty to perform funeral services on behalf of the bereaved, a county coroner is obligated by law to perform its services.  See NRS 259.050(1) (requiring the coroner to “make an appropriate investigation” when there are “reasonable ground[s] to suspect that [a] death has been occasioned by unnatural means”).  The county coroner does not create a special relationship nor does he or she undertake any particular duty to the bereaved to prepare the deceased’s body for funeral services.[6]  Rather, the county coroner’s duty is to investigate the cause of death and, so performing its duty, there may be instances where a county coroner needs to examine the body or its parts.[7]

            Nevertheless, a county coroner is not completely absolved from any liability.  A county coroner has a narrow limited duty to account for a deceased person’s remains and may be held liable for emotional distress to the person with the right to dispose of the deceased’s body for negligently handling a deceased person’s remains.

            We find the Arizona Court of Appeals’ decision in Morton v. Maricopa County, 865 P.2d 808 (Ariz. Ct. App. 1993), particularly helpful to our decision.  In Morton, the court recognized that a county coroner owed a duty not to negligently prevent the proper interment or cremation of a deceased’s body but that the duty was only owed to the person with the right to dispose of the deceased’s body.  Id. at 812.  The Morton court quoted section 868 of the Restatement (Second) of Torts in recognizing that a county coroner could be held liable:

“One who intentionally, recklessly or negligently removes, withholds, mutilates or operates upon the body of a dead person or prevents its proper interment or cremation is subject to liability to a member of the family of the deceased who is entitled to the disposition of the body.”

Morton, 865 P.2d at 812 (quoting Restatement (Second) of Torts § 868 (1979)).  The Morton court further acknowledged that “‘[t]here is no need to show physical consequences of the mental distress.’”  See id. at 812 n.2 (quoting the Restatement (Second) of Torts § 868 cmt. a).

            We agree with Morton and the Restatement (Second) of Torts section 868 that the only person who can assert an emotional distress claim against a county coroner in this context is the person with the right to dispose of the body.  While the only person who may assert this claim is the person with the right to dispose of the body, the remaining elements required to prevail on this claim are the same as those relating to an emotional distress claim against a mortuary—the person need not perceive the offending act or demonstrate any physical manifestations of emotional distress.

Does a claim for conversion of a deceased human body or its parts exist under Nevada law?

            A claim for conversion of a deceased human body or its parts does not exist under Nevada law.

            Conversion is defined as “a distinct act of dominion wrongfully exerted over another’s personal property in denial of, or inconsistent with his title or rights therein or in derogation, exclusion, or defiance of such title or rights.”  Evans v. Dean Witter Reynolds, Inc., 116 Nev. 598, 606, 5 P.3d 1043, 1048 (2000) (internal quotations omitted).  Thus, the essential question before us is whether a deceased human body or its parts is “personal property” in order to support a claim for conversion.

            Consistent with the majority of jurisdictions that have addressed this issue, we cannot conclude that there is a property right in a deceased human body or its remains.  See, e.g., Shults v. U.S., 995 F. Supp. 1270, 1275-76 (D. Kan. 1998) (construing that Mississippi law did not support a claim for conversion and noting that “the partial remains of a human body[ ] has no compensable value”); Culpepper v. Pearl Street Bldg., Inc., 877 P.2d 877, 882 (Colo. 1994) (“We formally reject the fictional theory that a property right exists in a dead body that would support an action for conversion.”); Walser v. Resthaven, 633 A.2d 466, 477 (Md. Ct. Spec. App. 1993).[8]  Concluding otherwise may create morbid consequences, setting up an incentive for the person with the right to the disposition of the body to sell his or her loved one’s remains for profit.  We therefore answer this question in the negative and conclude that Nevada law does not recognize a claim for conversion of a deceased human body or its parts.

            We therefore answer the certified questions as set forth above.

 

HARDESTY, DOUGLAS, CHERRY, SAITTA, GIBBONS, and PICKERING, JJ., concur.

 

**********FOOTNOTES**********

[1]        The ten certified questions were presented to us as follows:

1.  What relationship must a plaintiff have to a deceased person to assert a cognizable emotional distress claim related to the alleged mishandling of the deceased person’s remains?

2.  In asserting such a claim, must the plaintiff demonstrate physical impact or serious emotional distress causing physical injury or illness?

3.  In asserting such a claim, must the plaintiff observe or have some sensory perception of the act causing insult to their loved one’s remains?

4.  Does a county coroner’s office owe a duty to the family members of a deceased individual not to lose, misplace, or misappropriate the deceased person’s organs such that the county coroner’s office could be liable for emotional distress claims?

5.  If the answer to question four is yes, to what class of persons is such a duty owed?

6.  Does a county coroner’s office owe a fiduciary duty to the family members of a deceased individual not to lose, misplace, or misappropriate the deceased person’s organs, or to inform the family members about the whereabouts of such organs?

7.  If the answer to question six is yes, to what class of persons is such a duty owed?

8.  Does a claim for conversion of a deceased human body or its parts exist under Nevada law?

9.  If the answer to question eight is yes, what class of persons may bring such a claim?

10.  If the answer to question eight is yes, may such a plaintiff recover emotional distress damages arising out of the conversion of the human remains?

[2]        In its certification order, the federal district court noted that it did “not intend its framing of the questions to limit [this court’s] consideration of the issues.”

[3]        We note that respondents Nevada Memorial Cremation Society and its employees have failed to participate in this matter.

[4]        The Court further stated that

[t]here is no reason to assume that a person who makes the arrangements is any more susceptible to emotional distress if the services are not competently performed than are the other family members.  Indeed, in light of the emotional impact of the death of a close family member of the bereaved, it may be the relative least affected who is chosen by the family to represent them in arranging for funeral and related services.

Id. at 191.

[5]        Similar to our resolution of this issue, the American Law Institute is drafting a new section in the Restatement (Third) of Torts: Liability for Physical and Emotional Harm addressing this situation, which currently reads:

            An actor whose negligent conduct causes serious emotional disturbance to another is subject to liability to the other if the conduct:

            . . .

            (b) occurs in the course of specified categories of activities, undertakings, or relationships in which negligent conduct is especially likely to cause serious emotional disturbance.

Restatement (Third) of Torts: Liability for Physical and Emotional Harm § 46 (Tentative Draft No. 5, 2007).  The tentative draft Restatement limits recovery under this tort to a class of persons “in the relationship or those for whom the undertaking or activity was being performed . . . .”  Id. § 46 cmt. b.  The tentative draft does not mention any requirement that the person bringing the claim must observe or perceive the negligent conduct.  This rule is not limited to cases in which there are physical manifestations; the only requirement is that the potential plaintiff demonstrate serious emotional distress.  See id. § 46 cmt. g.

[6]        Because a county coroner does not create a special relationship with family members of the deceased, we answer the question of whether a county coroner owes a fiduciary duty not to lose, misplace, or misappropriate a deceased person’s organs, or to inform family members of the organs’ whereabouts, in the negative.

[7]        For example, a coroner may need to dissect a deceased’s organs and dispose of body parts after the investigation.  While a bereaved may be emotionally upset that the deceased body is not returned with all of its organs, the county coroner cannot be held liable for carrying out the duties of his or her job.

[8]        While some jurisdictions have adopted the theory that a person has a “quasi-property” right to a deceased human body or its remains for burial purposes, most of those jurisdictions have refused to apply that theory to support a claim for conversion of a deceased human body or its parts.  See, e.g., Colavito v. New York Organ Donor Network, Inc., 356 F. Supp. 2d 237, 244 (E.D.N.Y. 2005); Bauer v. North Fulton Medical Center, 527 S.E.2d 240, 244 (Ga. Ct. App. 1999).

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Cite as: City of Reno v. Citizens for Cold Springs

126 Nev. Adv. Op. No. 27

July 29, 2010

 

IN THE SUPREME COURT OF THE STATE OF NEVADA

 

No. 50301

 

CITY OF RENO,

Appellant,

    vs.

CITIZENS FOR COLD SPRINGS; ANTHONY MIDMORE; AND JOAN LISCOM,

Respondents.

 

            Appeal from an amended district court order in a land use action.  Second Judicial District Court, Washoe County; Robert H. Perry, Judge.

            Affirmed in part and reversed in part.

 

John J. Kadlic, City Attorney, and Marilyn D. Craig, Deputy City Attorney, Reno, for Appellant.

John L. Marshall, Reno, for Respondents.

McDonald Carano Wilson LLP and Michael A.T. Pagni and Mark W. Dunagan, Reno, for Amici Curiae.

 

BEFORE THE COURT EN BANC.

 

OPINION

By the Court, GIBBONS, J.:

            In this appeal, we consider whether the City of Reno violated Nevada law by conditionally approving amendments to the Reno Master Plan prior to the Truckee Meadows Regional Planning Commission’s decision that the proposed amendments conformed to the Truckee Meadows Regional Plan.  We also consider whether the City violated a former provision in the Reno Municipal Code (RMC) by failing to make a sufficient finding about plans for water services and infrastructure before passing a zoning ordinance that corresponded with the proposed master-plan amendments.  We conclude that the City complied with Nevada law because the master-plan amendments only became effective after the Regional Planning Commission determined that the proposed amendments conformed to the regional plan.  We further conclude that the City violated the RMC because the findings it made prior to approval of the zoning ordinance about planned water services and infrastructure deferred the subject to a later date and were too general in nature to satisfy the mandates of the code.  Therefore, we affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

I.  Passage of Resolution 6712 and Ordinance 5809

            Cold Springs is a predominately rural area located north of Reno.  It is a closed hydrographic basin that traps water and sewer outflow within its confines.  Because of the closed nature of Cold Springs’ water services and infrastructure, there are limited water supplies and sewage disposal available to its citizens.  In 2005, the City passed a zoning ordinance that annexed approximately 6,800 acres of undeveloped land in Cold Springs.[1]  The City annexed this land because developers proposed substantial urbanization in the area, including 13.5 million square feet of new commercial space and 6,860 new residential units.  After the annexation, Nevada’s statutory scheme required the Reno Planning Commission and City Council to modify the City’s master plan and zoning provisions before development could begin.

            Pursuant to NRS 278.030(1), the governing entity of each Nevada city with a population of 25,000 people or more must create a planning commission.  City planning commissions are responsible for drafting and adopting master plans.  Sustainable Growth v. Jumpers, LLC, 122 Nev. 53, 62, 128 P.3d 452, 459 (2006) (citing NRS 278.150(1)-(2)).  Master plans contain long-term, comprehensive guides for the orderly development and growth of an area.  Id. (citing NRS 278.150(1)-(2)).  Before adopting a substantial amendment to a master plan, the city planning commission must hold at least one public hearing after providing notice by publication of the hearing’s time and place.  NRS 278.210(1).  Once the city planning commission adopts the master-plan amendments, the local governing body may adopt such amendments if they can be practically applied for the area’s development.  NRS 278.220(1).  Before adopting any amendment, however, the governing body must hold a public hearing after providing notice by publication of the hearing’s time and place.  NRS 278.220(3).

            When a governing body adopts an amendment to a master plan, it must also abide by the procedures set forth in NRS 278.0282.  Subsection 1 of NRS 278.0282 states that “[b]efore the adoption or amendment of any master plan, . . . each governing body and any other affected entity shall submit the proposed plan or amendment to the regional planning commission.”  Once the governing body submits the proposed master-plan amendment, the regional planning commission shall “determine whether the proposed plan or amendment conforms with the comprehensive regional plan.”  NRS 278.0282(1).  Regional plans set forth goals and policies for the physical development and orderly management of the regional area in question.  NRS 278.0272(1)-(2).

            Governing bodies may also enact zoning ordinances with a procedure similar to that used to adopt amendments to master plans.  NRS 278.260(1) sets forth that local governing entities must provide for the manner in which zoning ordinances are amended.  Under RMC section 2.100, a local committee must first consider a proposed ordinance and, after the city meets requirements for the notice and publication of the provision, the Reno City Council must either adopt or reject the proposed ordinance within 45 days after the publication.  Any proposed zoning changes must also substantially conform to the applicable master plan.  Nova Horizon v. City Council, Reno, 105 Nev. 92, 96, 769 P.2d 721, 723 (1989).  Pursuant to NRS 278.0284, “[a]ny action of a local government relating to . . . zoning . . . must conform to the master plan of the local government.  In adopting any ordinance or regulation relating to . . . zoning, . . . the local government shall make a specific finding that the ordinance conforms to the master plan.”  In addition, NRS 278.250(2) states that “zoning regulations must be adopted in accordance with the master plan for land use.”

            In this case, the Reno Planning Commission held a public hearing to discuss amendments to the Reno Master Plan and the passage of a corresponding zoning ordinance.  The proposed zoning ordinance would rezone the subject property in Cold Springs from generally rural land-use designations to industrial, commercial, and urban residential classifications.  The proposed master-plan amendments would alter the Reno Master Plan so that it was in agreement with the proposed zoning ordinance.  The Reno Planning Commission then approved the master-plan amendments and corresponding zoning ordinance.  When considering these provisions, it deferred issues about supplying the prospective development with water services and infrastructure to a later date.

            After the Reno Planning Commission approved the proposed amendments and ordinance, the Reno City Council considered them at a public hearing.  The City Council then conditionally approved the master-plan amendments in Resolution 6712, which would change the Reno Master Plan by altering the land-use designations for the subject property.  The resolution stated that it would “become effective upon a determination of conformance by the Regional Planning Commission.”  Next, the City Council changed Cold Springs’ rural zoning designations to primarily urban designations in Ordinance 5809.  Although Ordinance 5809 originally stated that it would become effective several days after its adoption, the City Council amended the ordinance so that it would become effective upon the Regional Planning Commission’s determination that the master-plan amendments conformed to the regional plan.  When passing Resolution 6712 and Ordinance 5809, the City Council did not find that Cold Springs’ existing water services and infrastructure were adequate to serve the potential growth on the property.  Nor did it make a finding specifying plans to supply additional water services and infrastructure to the subject property to meet the anticipated demand caused by development.

            Following the passage of these provisions, the City Council submitted the proposed master-plan amendments to the Regional Planning Commission at the Truckee Meadows Regional Planning Agency so that it could determine whether the amendments conformed to the Truckee Meadows Regional Plan.  The Nevada Legislature created the Truckee Meadows Regional Planning Agency in 1989 to foster coordination between Reno, Sparks, and Washoe County.  The agency is comprised of a director, staff, the Regional Planning Governing Board, and the Regional Planning Commission.  The agency adopted the first Truckee Meadows Regional Plan in 1991.  Then in 2002, it adopted a regional plan that created a streamlined, simplified process for coordinating land-use development in Reno, Sparks, and Washoe County.  In this case, the Regional Planning Commission unanimously determined that the proposed amendments to the Reno Master Plan conformed to the Truckee Meadows Regional Plan.  Upon the finding of conformance, both Resolution 6712 and Ordinance 5809 went into effect.

II.  District court proceedings

            Respondents filed suit against the City in 2006.  Respondents consist of citizens, taxpayers, residents, and property owners of the subject land in Cold Springs.  They are concerned about the proposed urbanization and development in Cold Springs because this area has limited water supplies and infrastructure.  Their complaint requested declaratory and injunctive relief, and petitioned for a writ of mandamus.  After the parties experienced confusion regarding the proper mechanism for respondents’ challenge, respondents filed an amended complaint that petitioned for both a writ of mandamus and judicial review.

            In the amended complaint, respondents alleged that the City erred by adopting Ordinance 5809 because this zoning ordinance did not conform to the existing master plan at the time of its passage and adoption.  According to respondents, the City attempted to amend the existing master plan by adopting Resolution 6712, but it failed to properly enact the resolution because it did not obtain a determination from the Regional Planning Commission stating that the master-plan amendments conformed to the regional plan prior to the resolution’s passage.  Respondents also alleged that the City erred by adopting Ordinance 5809 because the City did not make a finding about plans for water services and infrastructure prior to the ordinance’s passage, nor did the ordinance promote orderly development.

            The district court considered respondents’ arguments during a hearing.  After the hearing, the district court ordered the City to set aside Ordinance 5809.  The parties then agreed to submit a proposed amended order to the district court to clarify its findings.  In the amended order, the district court concluded that “the requirements of first obtaining an amendment to the Master Plan and having a plan to provide services are more than mere procedural guidelines.”  Although the district court did not order the City to set aside Resolution 6712, it partly based its decision to mandate that the City set aside Ordinance 5809 upon the premise that the City did not properly amend the Reno Master Plan before adopting Ordinance 5809.  The district court also concluded that the City disregarded procedure in the RMC when adopting Ordinance 5809 because it did not make a finding regarding plans for the provision of services and infrastructure necessary due to the future development in Cold Springs.  The City now appeals from the district court’s amended order.

DISCUSSION

I.  Standard of review

            In this case, respondents filed a complaint in district court for declaratory and injunctive relief, and for a writ of mandamus.  A writ of mandamus is a remedy that exists “to compel the performance of an act which the law especially enjoins as a duty resulting from office.”  Board of Comm’rs v. Dayton Dev. Co., 91 Nev. 71, 75, 530 P.2d 1187, 1189 (1975).  This extraordinary remedy can also correct a governing body’s manifest abuse of discretion in zoning cases.  Id.

            After respondents filed their complaint, this court issued its decision in Kay v. Nunez, 122 Nev. 1100, 146 P.3d 801 (2006).  In Kay, the appellant filed petitions in district court for a writ of mandamus and judicial review to contest a local government’s zoning and land-use decision.  Id. at 1103, 146 P.3d at 804.  This court concluded in Kay that a petition for judicial review was the proper mechanism for seeking review of a local government’s zoning and planning decision in district court.  Id. at 1104-06, 146 P.3d at 804-05.  The court arrived at this conclusion based on the express language in NRS 278.3195(4), which sets forth that a person who administratively appeals a zoning decision under the applicable ordinance to the governing board and is aggrieved by the board’s decision may appeal by timely filing a petition for judicial review in district court.  Id. at 1104-05, 146 P.3d at 804-05.

            Given the ruling in Kay, respondents amended their complaint to petition for both a writ of mandamus and judicial review.  After a hearing, the district court ordered the City to set aside Ordinance 5809.  In its order, the district court noted that the parties initially disputed whether a petition for a writ of mandamus or for judicial review was the appropriate vehicle for respondents’ challenge.  The district court also noted that later on during the proceedings, the parties appeared to agree that the proper vehicle was a writ of mandamus.  The City continues to argue on appeal that the proper vehicle for respondents’ challenge was a writ of mandamus.  According to the City, a petition for judicial review is improper in this case because the City’s enactment of Ordinance 5809 was a legislative act that is not subject to NRS 278.3195(4).  However, we conclude that the petition for judicial review was the proper mechanism.

            The enactment of zoning ordinances and amendments by local municipal entities constitutes sound legislative action.  McKenzie v. Shelly, 77 Nev. 237, 242, 362 P.2d 268, 270 (1961).  Some courts do not extend judicial review to the legislative process of enacting zoning amendments.  4 Patricia E. Salkin, American Law of Zoning § 42:5 (5th ed. 2010).  However, the procedural actions of municipal legislative entities may still be subject to judicial review.  Id.  In City of Beechwood Village v. Council, Etc., 574 S.W.2d 322, 323 (Ky. Ct. App. 1978), the Court of Appeals of Kentucky reviewed an amendment to a zoning map adopted by a local legislative body.  The court in Beechwood Village invalidated the zoning amendment because the local legislative body failed to make a sufficient finding explaining why the amendment conformed to the community’s comprehensive plan.  Id. at 323-25.

            Similarly, the Court of Appeals of New York concluded in Voelckers v. Guelli, 446 N.E.2d 764, 767-68 (N.Y. 1983), that courts could judicially review the voting procedures used by local town boards to enact zoning amendments.  In Voelckers, respondents argued on appeal that the lower courts had exceeded their authority by reviewing a legislative action, meaning the town board’s action related to a proposed zoning code amendment.  Id. at 767.  The court disagreed and concluded that “a determination of such a nature—addressing a question of procedure only, eschewing any intrusion into the substance of the matter being voted on—is within the scope of judicial authority.”  Id. at 768.

            In this case, we consider two procedural issues raised by the parties: (1) whether the City complied with NRS 278.0282 when passing the amendments to the Reno Master Plan in Resolution 6712, and (2) whether the City complied with former RMC section 18.06.404(d)(1)(b) when rezoning the subject property in Ordinance 5809.  Because these issues are procedural and do not require this court to consider the substance or content of the enactments, we conclude that a petition for judicial review was the proper vehicle for respondents’ challenge.  See Voelckers, 446 N.E.2d at 767-68.

            When considering petitions for judicial review in zoning cases, both the district court and this court review the agency record to decide whether substantial evidence supports the governing body’s findings.  Kay, 122 Nev. at 1105, 146 P.3d at 805.  Substantial evidence is that which a reasonable mind could accept as sufficient to support a conclusion.  State, Emp. Security v. Hilton Hotels, 102 Nev. 606, 608, 729 P.2d 497, 498 (1986).  This court will not substitute its judgment for that of a municipal entity if substantial evidence supports the entity’s action.  McKenzie, 77 Nev. at 240, 362 P.2d at 269.

            The two issues on appeal also require this court to interpret NRS 278.0282 and former RMC section 18.06.404(d)(1)(b).[2]  “Statutory construction is a question of law, which this court reviews de novo.”  Kay, 122 Nev. at 1104, 146 P.3d at 804.  Courts also apply a de novo standard of review when interpreting municipal code provisions.  U.S. v. Iverson, 162 F.3d 1015, 1019 (9th Cir. 1998); Asphalt Specialt. v. City of Commerce City, 218 P.3d 741, 745 (Colo. App. 2009).  When the language in a provision is clear and unambiguous, this court gives “effect to that meaning and will not consider outside sources beyond that statute.”  NAIW v. Nevada Self-Insurers Association, 126 Nev. ___, ___, 225 P.3d 1265, 1271 (2010).  If there is more than one reasonable interpretation of the statute, this court considers legislative intent and other similar statutory provisions when construing the statute’s language.  Id.

II.  The City complied with NRS 278.0282 when passing Resolution 6712

            The City argues on appeal that it complied with Nevada law, specifically NRS 278.0282, when passing amendments to the Reno Master Plan in Resolution 6712.  According to the City, it properly adopted Resolution 6712 because its language stated that the master-plan amendments would only become effective after the Regional Planning Commission determined that the proposed amendments conformed to the regional plan.  Respondents argue that the City violated NRS 278.0282 because it adopted the master-plan amendments prior to the Regional Planning Commission’s determination that the amendments conformed to the regional plan.  We conclude that the City’s argument has merit.

            NRS 278.0282(1) states that “[b]efore the adoption or amendment of any master plan, . . . each governing body and any other affected entity shall submit the proposed plan or amendment to the regional planning commission.”  Once the governing body submits the proposed master-plan amendment, the Regional Planning Commission shall “determine whether the proposed plan or amendment conforms with the comprehensive regional plan.”  NRS 278.0282(1).  If the commission concludes that the master-plan amendment does not conform to the regional plan, it must specify which parts of the amendment do not conform and explain its reasoning.  Id.

            In this case, the Reno City Council passed amendments that altered the land-use designations for Cold Springs in the Reno Master Plan.  It conditionally approved these proposed amendments in Resolution 6712, before the Truckee Meadows Regional Planning Commission found that the amendments conformed to the Truckee Meadows Regional Plan.  The City Council included a provision in Resolution 6712 that stated the amendments would only “become effective upon a determination of conformance by the Regional Planning Commission.”  After the City submitted the master-plan amendments to the Regional Planning Commission, the commission unanimously concluded that the proposed amendments conformed to the regional plan and the resolution became operative.

            We conclude that the sequence of events used when passing Resolution 6712 complied with the procedures set forth in NRS 278.0282.  Subsection 1 of NRS 278.0282 requires that a governing body submit “proposed” amendments to the Regional Planning Commission prior to the amendment of a master plan.  The term “proposed” indicates that the Regional Planning Commission must review master-plan amendments before they are ratified and become effective.

            Caselaw draws a distinction between proposed amendments and ratified or effective amendments.  See, e.g., Kimble v. Swackhamer, 94 Nev. 600, 602, 584 P.2d 161, 162 (1978) (the Legislature could “ratify or reject a proposed amendment to the federal constitution” (discussing Hawke v. Smith, 253 U.S. 221 (1920))); Williams v. Griffin, 91 Nev. 743, 745, 542 P.2d 732, 733 (1975) (agencies may refuse to issue permits when doing so would conflict with proposed ordinances that are not yet in effect); Maragliano v. Land Use Bd., 957 A.2d 213, 215 (N.J. Super. Ct. App. Div. 2008) (if a governing body proposes to amend a zoning ordinance, planning boards should not grant development approvals until the amendment takes effect).  Because the City added a provision to Resolution 6712 that prevented the resolution from becoming effective until the Regional Planning Commission determined that the proposed master-plan amendments conformed to the regional plan, we conclude that the City complied with the express language in NRS 278.0282 when adopting Resolution 6712.

III.  The City violated former RMC section 18.06.404(d)(1)(b) when passing Ordinance 5809

            The City argues that the district court erred when it ordered that Ordinance 5809 be set aside because the City complied with former RMC section 18.06.404(d)(1)(b) when passing the ordinance.  According to the City, this municipal code provision did not require the local government to make a finding setting forth detailed plans about water services and infrastructure prior to the approval of Ordinance 5809.  Respondents argue that the City failed to comply with former RMC section 18.06.404(d)(1)(b) when enacting Ordinance 5809 because it did not make a sufficient finding about the plans for water services and infrastructure.

      A.  The requirements of former RMC section 18.06.404(d)(1)(b)

            Former RMC section 18.06.404(d)(1)(b) mandated that when approving a zoning-map amendment, the Reno Planning Commission and City Council must find that there is a plan to support proposed development with sufficient services and infrastructure.  It stated the following:

In approving any zoning map amendment, the planning commission and city council shall find the following:

. . . .

b. The change in zoning represents orderly development of the city and there are, or are planned to be adequate services and infrastructure to support the proposed zoning change and existing uses in the area

RMC § 18.06.404(d)(1)(b) (2008).  Because this version of the code was in effect at the time when the district court issued its amended order, we analyze the appeal under former RMC section 18.06.404(d)(1)(b).[3]

            In this case, the parties acknowledge that the existing water and sewer services in Cold Springs cannot support the proposed development and urbanization permitted by the change in zoning.  Because Cold Springs’ existing water and sewer services cannot support the proposed development, former RMC section 18.06.404(d)(1)(b) required the Reno Planning Commission and City Council to make a finding, when passing Ordinance 5809, regarding plans to supply adequate water services and infrastructure to support the proposed development.  The City argues that it complied with this former code provision because it made findings which set forth that the details regarding the provision of water services and infrastructure would be established before development begins.  According to the City, it was improper for the district court to require detailed plans about water services and infrastructure at the zoning and planning stage of the process.

            We conclude that this is not a reasonable interpretation of former RMC section 18.06.404(d)(1)(b).  Courts must construe ordinances in a manner that gives meaning to all of the terms and language.  Bd. of County Comm’rs v. CMC of Nevada, 99 Nev. 739, 744, 670 P.2d 102, 105 (1983).  Courts “should read each sentence, phrase, and word to render it meaningful within the context of the purpose of the legislation.”  Id.  The City’s interpretation that former RMC section 18.06.404(d)(1)(b) permits governing entities to defer findings or make broad conclusions about services and infrastructure would render the following phrase in the code to be meaningless: “the planning commission and city council shall find . . . there are, or are planned to be adequate services and infrastructure to support the proposed zoning change and existing uses in the area.”  Also, deferring the requirement to make a finding about plans for adequate services and infrastructure could prevent governing entities from designing proper zoning regulations that promote the orderly development of an area.

            In contrast, respondents in this case interpret former RMC section 18.06.404(d)(1)(b) as requiring local governments to make a finding about plans for adequate services and infrastructure prior to the adoption of amendments to the master plan.  This constitutes a reasonable interpretation of the former code provision.  Pursuant to this provision’s plain language, governing entities must make a finding during the zoning and planning stage of development about how officials plan to meet the water and infrastructure demands generated by the proposed zoning change.  The provision’s clear and unambiguous language does not permit governing entities to merely defer findings regarding plans for water services and infrastructure to a later date or to make vague conclusions that fail to articulate even a general plan for the provision of water services and infrastructure.

            According to amici curiae, actual plans for water services and infrastructure cannot be created before local governments enact applicable zoning ordinances.  However, the express language in former RMC section 18.06.404(d)(1)(b) does not require local governments or developers to submit complete, all-inclusive development plans prior to the approval of new zoning ordinances.  Such a requirement would be redundant because Nevada’s statutory scheme already requires developers to submit detailed plans regarding water and sewer services during later stages in the development process.  See, e.g., NRS 278.335; NRS 278.372; NRS 278.377; NRS 278A.540.  As set forth above, the provision’s plain language is subject to only one reasonable interpretation: local government must make a finding about plans for adequate services and infrastructure prior to the adoption of amendments to the master plan.  In this finding, local government must set forth an estimate of the water services and infrastructure required to serve the proposed development facilitated by the zoning amendment and must state how the governing entity plans to meet this demand.

      B.  Substantial evidence does not show that the City made a sufficient finding about plans for services and infrastructure

            After reviewing the record in this case, we conclude that substantial evidence does not show that the City made a sufficient finding regarding how officials plan to meet the water demands and infrastructure needs generated by the proposed development in Cold Springs.  When approving Ordinance 5809, the evidence shows that the Reno Planning Commission stated: “As future development projects are brought forward, issues such as sanitary sewer, water service and other critical infrastructure needs will be addressed.”  In addition, the Reno City Council made the following statement: “[W]hile the details of the provision of water and sewer will be required when the development is proposed, there is infrastructure in place that could be expanded, such as an existing sewer plant, and a water purveyor called Utilities, Inc.  Alternatively, new utilities could be built by the developer.”

            These statements do not satisfy the requirements of former RMC section 18.06.404(d)(1)(b) because they do not articulate even a general plan to meet the potential demands for water services and infrastructure generated by the zoning change.  While the City is not required to set forth detailed, all-inclusive development plans for water services and infrastructure, former RMC section 18.06.404(d)(1)(b) did require something more than the deferral of the issue or broad, evasive conclusions about how officials can build or expand utilities if necessary.  See Annapolis Market v. Parker, 802 A.2d 1029, 1045-46 (Md. 2002) (findings of fact should be meaningful and should not merely set forth broad conclusions, make boilerplate resolutions, or defer issues to a later date).  The parties in this case agree that the existing water services and infrastructure cannot support the potential development in Cold Springs, and merely deferring the subject or broadly concluding that a developer could build new utilities if necessary oversimplifies complex water-supply issues.  Because the City did not satisfy the applicable provision of the RMC, we conclude that the district court did not err by ordering the City to set aside Ordinance 5809.

CONCLUSION

            We conclude that the City did not violate NRS 278.0282 by conditionally approving amendments to the Reno Master Plan prior to submitting the amendments to the Regional Planning Commission for review.  The City complied with NRS 278.0282 because Resolution 6712 provided that the proposed master-plan amendments would become effective after the Regional Planning Commission determined that they conformed to the regional plan.  We further conclude that the City violated former RMC section 18.06.404(d)(1)(b) because there is no substantial evidence showing that it made an adequate finding about planned water services and infrastructure before passing Ordinance 5809.  Accordingly, we reverse the district court’s finding that the City failed to properly amend the Reno Master Plan and affirm the district court’s conclusion that the City violated former RMC section 18.06.404(d)(1)(b).

 

PARRAGUIRRE, C.J., and HARDESTY, DOUGLAS, CHERRY, SAITTA, and PICKERING, JJ., concur.

 

**********FOOTNOTES**********

[1]        This court considered issues surrounding the annexation of land in Cold Springs in the case of Citizens for Cold Springs v. City of Reno, 125 Nev. ___, 218 P.3d 847 (2009).

[2]        The City amended RMC section 18.06.404 on September 9, 2009, after the district court issued its amended order in this case on June 5, 2008.  Thus, we will analyze this matter in accordance with the version of RMC section 18.06.404 that was in effect on June 5, 2008.

[3]        Similar to former RMC section 18.06.404(d)(1)(b), the current version of RMC section 18.06.404(d)(1) states that the Reno Planning Commission and City Council “shall make findings regarding the requirements of NRS 278.250(2), as applicable, and the proposed amendment’s conformity to the City of Reno Master Plan.”  Pursuant to NRS 278.250(2), local governments must design zoning regulations to, among other things, “preserve the quality of air and water resources” and “develop a timely, orderly and efficient arrangement of transportation and public facilities and services.”

*****************************

Cite as: Bahena v. Goodyear Tire & Rubber Co.

126 Nev. Adv. Op. No. 26

July 1, 2010

 

IN THE SUPREME COURT OF THE STATE OF NEVADA

 

No. 49207

 

TERESA BAHENA, INDIVIDUALLY, AND AS SPECIAL ADMINISTRATOR FOR EVERTINA M. TRUJILLO TAPIA, DECEASED; MARIANA BAHENA, INDIVIDUALLY; MERCEDES BAHENA, INDIVIDUALLY; MARIA ROCIO PERREYA, INDIVIDUALLY; MARIA LOURDES BAHENA-MEZA, INDIVIDUALLY; MARICELA BAHENA, INDIVIDUALLY; ERNESTO TORRES AND LEONOR TORRES, INDIVIDUALLY, AND LEONOR TORRES, AS SPECIAL ADMINISTRATOR FOR ANDRES TORRES, DECEASED; LEONOR TORRES FOR ARMANDO TORRES AND CRYSTAL TORRES, MINORS, REPRESENTED AS THEIR GUARDIAN AD LITEM; VICTORIA CAMPE, AS SPECIAL ADMINISTRATOR OF FRANK ENRIQUEZ, DECEASED; PATRICIA JAYNE MENDEZ, FOR JOSEPH ENRIQUEZ, JEREMY ENRIQUEZ, AND JAMIE ENRIQUEZ, MINORS, REPRESENTED AS THEIR GUARDIAN AD LITEM; AND MARIA ARRIAGA FOR KOJI ARRIAGA, REPRESENTED AS HIS GUARDIAN AD LITEM,

Appellants/Cross-Respondents,

    vs.

GOODYEAR TIRE & RUBBER COMPANY,

Respondent/Cross-Appellant.

 

            Appeal and cross-appeal from a district court judgment in a wrongful death action.  Eighth Judicial District Court, Clark County; Sally L. Loehrer, Judge.

            Affirmed.

            PICKERING, J., dissented.

 

Albert D. Massi, Ltd., and Albert D. Massi, Las Vegas, for Appellants/Cross-Respondents Arriagas, Campe, Mendez, and Torres.

Callister & Reynolds and Matthew Q. Callister and R. Duane Frizell, Las Vegas, for Appellants/Cross-Respondents Bahena, Bahena-Meza, and Perreya.

Lewis & Roca, LLP, and Daniel F. Polsenberg and Joel D. Henriod, Las Vegas, for Respondent/Cross-Appellant Goodyear Tire & Rubber Company.

 

BEFORE THE COURT EN BANC.

 

OPINION

By the Court, GIBBONS, J.:

            In this appeal we consider whether the district court abused its discretion when it struck a defendant’s answer, as to liability only, as a  discovery sanction pursuant to NRCP 37(b)(2)(C) and NRCP 37(d).  We conclude that the district court did not abuse its discretion by imposing non-case concluding sanctions and by not holding a full evidentiary hearing.  We further conclude that the district court exercised its inherent equitable power and properly applied the factors set forth in Young v. Johnny Ribeiro Building, 106 Nev. 88, 92-93, 787 P.2d 777, 780 (1990).  We therefore affirm the judgment of the district court.

FACTS AND PROCEDURAL HISTORY

            This case arises out of a single-vehicle, multiple rollover accident sustained by the appellants/cross-respondents (collectively, Bahena) that occurred when the left rear Goodyear tire separated from the vehicle.

            The appellants were family members and friends.  Three people were killed in the accident.  Seven other passengers suffered injuries.  A teenage boy suffered a closed head injury that caused a persistent vegetative state.  Bahena sued respondent/cross-appellant Goodyear Tire and Rubber Company for wrongful death and other tort claims arising from the accident.  Although the district court precluded Goodyear from litigating the issue of liability, the district court permitted Goodyear to fully litigate, without any restrictions, all claims by Bahena for compensatory and punitive damages.

            The district court set the trial date for January 29, 2007.  The discovery cutoff was December 15, 2006.

            On November 28, 2006, Bahena filed a second motion to compel for sanctions seeking better responses to interrogatories and to require an index matching the discovery documents.  The motion to compel pertained to interrogatory answers and a mass production of documents Goodyear had previously produced.  At the hearing before the discovery commissioner on December 5, 2006, the discovery commissioner made a written finding of fact that he did not believe that Goodyear was acting in good faith and that Goodyear must designate which Rule 34 request made by Bahena the specific documents produced were responding to; otherwise, Goodyear was being evasive and noncompliant with discovery.  The discovery commissioner’s findings and recommendations were not objected to and subsequently approved by the district court when it entered an order on January 5, 2007.

            The next discovery dispute pertained to a deposition noticed by Bahena of a Goodyear representative for December 11, 2006.  Goodyear moved for a protective order on December 8, 2006.  The discovery commissioner held a hearing upon the motion for protective order on December 14, 2006.  The commissioner ruled that the deposition should go forward and recommended in writing on December 20, 2006, as follows:

            IT IS RECOMMENDED THAT prior to December 28, 2006, Goodyear will have a representative appear at the office of Plaintiffs’ counsel in Las Vegas, Nevada to render testimony in the presence of a court reporter regarding the authenticity of the approximately 74,000 documents bates stamped GY-Bahena produced by Goodyear in this matter.  Any document Goodyear’s representative does not either affirm or deny as authentic will be deemed authentic.

These recommendations were served on Goodyear on December 21, 2006.  Goodyear did not request the discovery commissioner to stay the deposition prior to December 28, 2006.  In addition, Goodyear did not file its objections to the discovery commissioner’s recommendations until January 3, 2007.[1]  On January 5, 2007, the district court entered its order approving the discovery commissioner’s recommendations retroactive to the December 14, 2006, hearing date.  Goodyear had filed a timely objection to the discovery commissioner’s recommendations on January 3, 2007.  However, the district court did not receive the objections prior to entering its order on January 5, 2007.

            Bahena filed a motion for sanctions on December 29, 2006.  This motion was based upon Goodyear’s unverified interrogatory responses and boilerplate or proprietary and trade-secret objections.[2]  In this motion, Bahena sought additional relief, including the striking of Goodyear’s answer and the entry of judgment as to both liability and damages.  At a hearing upon this motion held January 9, 2007, the district court also considered and overruled Goodyear’s objections to the recommendations and sustained its January 5, 2007, order regarding producing a witness for deposition to authenticate the documents as verbally ruled by the discovery commissioner on December 14, 2006.  The district court struck Goodyear’s answer as to liability and damages for sanctions based upon discovery abuses.

            After the January 9, 2007, hearing, Bahena filed a motion to establish all its damages by way of a prove-up hearing.  Goodyear filed an opposition to this motion and a countermotion for reconsideration of all the discovery sanctions approved by the district court, pursuant to its January 5, 2007, approval of the discovery commissioner’s recommendations for the December 14, 2006, hearing, and its January 9, 2007, order granting the motion to strike Goodyear’s answer as to liability and damages.  The district court set a hearing for these motions, pursuant to an order shortening time, for January 18, 2007.  During the hearing, the district court granted Goodyear’s request for reconsideration of its January 9, 2007, ruling to strike Goodyear’s answer as to both liability and damages and entertained further argument on these issues.  The district court further proceeded to accept factual representations made by all of the parties’ attorneys present in court on behalf of Bahena and Goodyear, as officers of the court.  At this hearing, which consisted of 64 pages of transcript, the district court questioned the attorneys regarding the nature of the discovery disputes and the various responses.  The district court further considered the voluminous exhibits and affidavits of counsel for the parties that were attached to the various motions and countermotions filed by Bahena and Goodyear.  The district court imposed reduced sanctions of striking Goodyear’s answer as to liability only, and denied Bahena’s request to establish its damages by way of a prove-up hearing.

            In analyzing its decision for imposing these non-case concluding sanctions, the district court reasoned that Goodyear’s conduct throughout the discovery process caused stalling and unnecessary delays.  The district court stated that the repeated discovery delays attributed to Goodyear were such that continuing the trial date to allow discovery to be completed was not the appropriate remedy for Bahena since the prejudice was extreme and inappropriate.  The district court noted that the Bahena plaintiffs included a 14-year-old who had been in a persistent vegetative state for the past two years together with the estates of three dead plaintiffs.  The district court further held that since the trial was scheduled to commence January 29, 2007, Goodyear knew full well that not responding to discovery in good faith would require the trial date to be vacated.  If the trial had proceeded, there could have been an open question as to the authenticity of approximately 74,000 documents that were the subject of the December 14, 2006, hearing before the discovery commissioner.  The district court then analyzed and applied the factors to be considered in the imposition of discovery sanctions set forth in Young v. Johnny Ribeiro Building, and codified findings of fact and conclusions of law in a written order filed January 29, 2007.[3]  The case then proceeded to jury trial on the issue of damages only and Bahena obtained a judgment in excess of $30 million in compensatory damages.  However, Goodyear received a defense verdict upon Bahena’s claim for punitive damages.

DISCUSSION

            In reviewing sanctions, we do not consider whether we, as an original matter, would have imposed the sanctions.  Our standard of review is whether the district court abused its discretion in doing so.  Foster v. Dingwall, 126 Nev. ___, 227 P.3d 1042 (2010).  However, we do not impose a somewhat heightened standard of review because the sanctions in this case did not result in the case concluding sanctions of striking Goodyear’s answer both as to liability and damages.  In Clark County School District v. Richardson Construction, we concluded that:

            Under NRCP 37(b)(2), a district court has discretion to sanction a party for its failure to comply with a discovery order, which includes document production under NRCP 16.1.  We will set aside a sanction order only upon an abuse of that discretion.

123 Nev. 382, 391, 168 P.3d 87, 93 (2007).  We further concluded that there was substantial evidence to support the district court’s decision to sanction the Clark County School District by striking all of its affirmative defenses.  Id.  In its analysis, the district court weighed the factors to impose the appropriate sanctions against the Clark County School District.  Id. at 391-92, 168 P.3d at 93.  Non-case concluding sanctions could have included striking the school district’s answer as to liability only, as well as striking all of its affirmative defenses.  The district court chose the latter.  Id.  For these reasons, we conclude that the same standard of review for striking all of the defendant’s affirmative defenses applies when the district court strikes a defendant’s answer as to liability only, but does not conclude the case as to damages.[4]

NRCP 37(b)(2) sanctions

            Bahena contends that Goodyear violated the discovery order to produce a witness for deposition prior to December 28, 2006.  We agree.

            NRCP 37(b)(2) provides, in part, that if a person designated by a party to testify “fails to obey an order to provide or permit discovery . . . , the court in which the action is pending may make such orders in regard to the failure as are just,” and, among other things, enter the following sanctions:

            An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party.

NRCP 37(b)(2)(C).  In this case, the discovery commissioner made a ruling at a hearing on December 14, 2006, that Goodyear must produce a witness for deposition to testify as to the authenticity of voluminous documents prior to December 28, 2006.  Goodyear did not request the discovery commissioner stay this ruling pursuant to EDCR 2.34(e), the local district court rule that would allow such a stay.  Thereafter, the time to produce the witness for deposition passed.  On January 3, 2007, Goodyear filed objections to the discovery commissioner’s written report and recommendations dated December 20, 2006, requiring the deposition.  The district court initially approved the discovery commissioner’s recommendations by an order dated January 5, 2007.  Since the district court did not receive a copy of the objections filed by Goodyear on January 3, 2007, the district court allowed Goodyear to argue its objections at a hearing held January 9, 2007.  The district court again overruled Goodyear’s objections at the conclusion of this hearing.[5]

            Goodyear was required to comply with the discovery commissioner’s ruling announced at the December 14 hearing, unless the ruling was overruled by the district court.  See NRCP 16.3(b) (stating that the discovery commissioner has the authority “to do all acts and take all measures necessary or proper for the efficient performance of his duties”).  A ruling by the discovery commissioner is effective and must be complied with for discovery purposes once it is made, orally or written, unless the party seeks a stay of the ruling pending review by the district court.  Id.; EDCR 2.34(e).  Goodyear failed to seek a stay of the ruling or an expedited review by the district court prior to the time to comply with the ruling, and was therefore required to comply with the discovery commissioner’s directive.  The failure to do so was tantamount to a violation of a discovery order as it relates to NRCP 37(b)(2).  Young, 106 Nev. at 92, 787 P.2d at 779 (holding that a court’s oral ruling was sufficient to “constitute an order to provide or permit discovery under NRCP 37(b)(2)”).

            In Young, “[t]he court sanctioned Young by ordering him to pay [the nonoffending party’s] costs and fees on the motion to dismiss, by dismissing Young’s entire complaint with prejudice, and by adopting the final accounting proposed by [the nonoffending party] as a form of default judgment against Young” even though Young argued “that [the nonoffending party’s] accounting was factually insufficient to constitute a default judgment.”  106 Nev. at 91, 787 P.2d at 778 (emphasis added).  We disagreed with Young and affirmed the judgment of the district court in all respects since Young “forfeited his right to object to all but the most patent and fundamental defects in the accounting.”[6]  Id. at 95, 787 P.2d at 781.

            After the hearing on January 9, 2007, Bahena filed a motion to allow damages to be established by way of a prove-up hearing.  Goodyear filed an opposition to this motion and a countermotion for reconsideration regarding the discovery sanction issues as to the interrogatory answers, the discovery commissioner’s report and recommendations regarding the deposition and self-executing authentication sanctions, and the order striking Goodyear’s answer.  The district court granted Goodyear’s request for reconsideration and reopened argument upon the issue of appropriate sanctions for these discovery abuses.  At the hearing on January 18, 2007, the district court discussed the discovery commissioner’s recommendations regarding producing a witness for deposition and observed as follows:

I would have overruled your objections because the recommendation is very clear on its face. There is no confusion.  It says what it says.  And all you have to do is read it and comply with it.

The district court then proceeded to review the history of discovery abuses in this case involving Goodyear not only as to Bahena, but as to the codefendant Garm Investments, Inc.  We conclude the district court did not abuse its discretion by imposing non-case concluding sanctions upon Goodyear pursuant to NRCP 37(b)(2).

Inherent equitable power of the district court

            In Young, we held that courts have “inherent equitable powers to dismiss actions or enter default judgments for . . . abusive litigation practices.  Litigants and attorneys alike should be aware that these powers may permit sanctions for discovery and other litigation abuses not specifically proscribed by statute.”  106 Nev. at 92, 787 P.2d at 779 (alteration in original) (internal quotation and citation omitted).  We further concluded that “while dismissal need not be preceded by other less severe sanctions, it should be imposed only after thoughtful consideration of all the factors involved in a particular case.”  Id. at 92, 787 P.2d at 780.  In discussing the legal basis for dismissal, we held:

that every order of dismissal with prejudice as a discovery sanction be supported by an express, careful and preferably written explanation of the court’s analysis of the pertinent factors.  The factors a court may properly consider include, but are not limited to, the degree of willfulness of the offending party, the extent to which the non-offending party would be prejudiced by a lesser sanction, the severity of the sanction of dismissal relative to the severity of the discovery abuse, whether any evidence has been irreparably lost, the feasibility and fairness of alternative, less severe sanctions, such as an order deeming facts relating to improperly withheld or destroyed evidence to be admitted by the offending party, the policy favoring the adjudication on the merits, whether sanctions unfairly operate to penalize a party for the misconduct of his or her attorney, and the need to deter both the parties and future litigants from similar abuses.

Id. at 93, 787 P.2d at 780.

            After analyzing all of these factors, we held “that the district court did not abuse its discretion in imposing the more severe sanctions of dismissal and entry of default judgment” and that the sanctions were not “manifestly unjust.”  Id. (emphasis added).  We stated that “the district court gave appropriately careful, correct and express consideration to most of the factors discussed above” and that we have “affirmed sanctions of dismissal and entry of default judgment based on discovery abuses even less serious than Young’s.”  Id. at 93-94, 787 P.2d at 780.

            As the district court did in Young, the district court here prepared nine pages of carefully written findings of fact and conclusions of law analyzing the Young factors.  These findings of fact detail Goodyear’s discovery abuses not only as to the violation of the court order to produce a witness for deposition, but as to improper responses and verifications to answers to interrogatories.  For example, the district court found that “Goodyear failed to produce any representative in Nevada by December 28, 2006 pursuant to this [c]ourt’s order from the December 14, 2006 hearing.”  Another finding of fact provided, in part, that if “the [c]ourt had been made aware of Goodyear’s objection to the [d]iscovery [c]ommissioner’s recommendations from the December 14, 2006 hearing, the [c]ourt would have overruled Goodyear’s objections because the signed recommendation is very clear on its face.”  The conclusions of law set forth that the degree of willfulness by Goodyear was extreme and itemize nine separate reasons.  These conclusions also state that:

it is clear that Goodyear has taken the approach of stalling, obstructing and objecting.  Therefore, the court considers Goodyear’s posture in this case to be totally untenable and unjustified.  Goodyear’s responses to [p]laintiffs’ interrogatories are nothing short of appalling.

The conclusions of law further balance various lesser and more severe sanctions and conclude that striking Goodyear’s answer as to liability only was the appropriate sanction.  The district court additionally awarded monetary sanctions against Goodyear in favor of Bahena and codefendant Garm Investments, Inc., for failure to provide proper answers to interrogatories and verifications.

            We would further note that the discovery violations of Goodyear are strikingly similar to those in Foster v. Dingwall, 126 Nev. ___, 227 P.3d 1042 (2010).  In Foster, the district court struck all the pleadings of the appellants and allowed judgment to be entered by default.  Id. at ___, 227 P.3d at 1047.  We concluded that the district court orders sufficiently demonstrated that the conduct of the appellants was “repetitive, abusive, and recalcitrant.”  Id.  We further concluded that the district court “did not err by striking their pleadings and entering a default judgment against them.”  Id.  The discovery abuses in Foster include the initial failure of a party to appear after depositions were noticed.  Id. at ___, 227 P.3d at 1046.  There were also discovery abuses by the failure of the appellants to supplement their responses to their answers to interrogatories and responses to requests for production of documents.  Id.  We concluded that NRCP 37(b)(2)(C) and NRCP 37(d) provide that a court may strike a party’s pleadings if that party fails to attend his own deposition or fails to obey a discovery order.  Id. at ___, 227 P.3d at 1048.  We further concluded that entries of complete default are proper where “litigants are unresponsive and engaged in abusive litigation practices that cause interminable delays.”  Id.  We held that such sanctions “were necessary to demonstrate to future litigants that they are not free to act with wayward disregard of a court’s orders,” and that the conduct of the appellants evidenced “their willful and recalcitrant disregard of the judicial process.”  Id. at ___, 227 P.3d at 1049.  As to the issue of attorney fees, we concluded that the award of attorney fees, in addition to default sanctions, was proper and the award of attorney fees shall be reviewed under the abuse of discretion standard.  Id. at ___, 227 P.3d at 1052 (citing Albios v. Horizon Communities, Inc., 122 Nev. 409, 417, 132 P.3d 1022, 1027-28 (2006)).

            Based upon the holdings of Young, Foster, and Clark County School District v. Richardson Construction, and for all of the reasons set forth above, we conclude that substantial evidence supports the non-case concluding sanctions of striking Goodyear’s answer as to liability only pursuant to the district court’s inherent equitable power.  Further, findings of fact shall not be set aside unless they are clearly erroneous and not supported by substantial evidence.  See NRCP 52(a); Beverly Enterprises v. Globe Land Corp., 90 Nev. 363, 365, 526 P.2d 1179, 1180 (1974).  The discovery commissioner’s recommendations, from the December 5, 2006, and December 14, 2006, hearings, which the district court affirmed and adopted on January 5, 2007, are the findings of a master.  Since the district court adopted them, they shall be considered the findings of the court.  NRCP 52(a).

            We further conclude that by Goodyear requesting reconsideration of the discovery sanctions due to the failure of Goodyear’s representative to appear for a deposition prior to December 28, 2006, and the order of the district court from the January 9, 2007, hearing, the district court had the inherent equitable power to revise the appropriate sanctions in conjunction with the violation of this order and the failure of Goodyear to properly answer and verify the interrogatories.[7]  These non-case concluding sanctions do not have to be preceded by other less severe sanctions.  Young, 106 Nev. at 92, 787 P.2d at 780.  The district court did not abuse its discretion by doing so since substantial evidence supports the district court’s findings, and the findings are not clearly erroneous.

NRCP 37(d) sanctions

            In addition to awarding sanctions pursuant to NRCP 37(b)(2)(C), and based upon its inherent equitable power, the district court may order sanctions under NRCP 37(d).  NRCP 37(d) allows for the award of sanctions if a party fails to attend their own deposition or fails to serve answers to interrogatories or fails to respond to requests for production of documents.  Among the sanctions that are authorized by this rule are for the court to enter an order striking a pleading or parts thereof.  See Foster, 126 Nev. ___, 227 P.3d 1042; Skeen v. Valley Bank of Nevada, 89 Nev. 301, 303, 511 P.2d 1053, 1054 (1973).

            The district court found that Goodyear answered numerous sets of interrogatories propounded by Bahena and Garm Investments, Inc., that did not have proper verifications.  In addition, the district court found that the Goodyear witness did not attend a deposition prior to December 28, 2006, which was recommended by the discovery commissioner and subsequently ordered by the district court.  Therefore, we conclude there is substantial evidence to support the findings of the district court and the district court did not abuse its discretion under NRCP 37(d) and its inherent equitable power by structuring non-case concluding sanctions to strike the answer of Goodyear as to liability only.

The district court has the discretion to conduct such hearings as are necessary to impose non-case concluding sanctions

            Goodyear argues that it was entitled to a full evidentiary hearing regarding the issue of striking Goodyear’s answer as to liability only.  We disagree.

            Goodyear relies upon the case of Nevada Power v. Fluor Illinois, 108 Nev. 638, 837 P.2d 1354 (1992).  In that case, the district court dismissed the complaint of the Nevada Power Company and the California Department of Water Resources for alleged discovery abuses.  Id. at 642-43, 837 P.2d at 1358.  The case was concluded by dismissing the complaint with prejudice.  Id.  We reversed and said that because of the case ending dismissal of the Nevada Power complaint, it was entitled to an evidentiary hearing upon the issue of sanctions.  In Foster, 126 Nev. ___, 227 P.3d 1042, the district court struck the defendants’ answer as to both liability and damages and allowed the plaintiffs to establish their damages by way of a prove-up hearing.  126 Nev. at ___, 227 P.3d at 1047.  The district court held the required evidentiary hearing since the sanctions were case concluding.

            In this case, the district court denied Bahena’s motion to strike Goodyear’s answer as to damages and Bahena’s motion to be allowed to establish damages through a prove-up hearing.  The district court permitted Goodyear to fully argue and contest the amount of damages, if any, that Bahena could prove to a jury.  In fact, Goodyear prevailed and received a defense jury verdict upon Bahena’s cause of action for punitive damages.

            Since the district court limited its sanctions to striking Goodyear’s answer as to liability only, the sanctions were not case concluding ultimate sanctions.  The sanctions were of the lesser nature similar to those imposed in Clark County School District v. Richardson Construction, 123 Nev. 382, 168 P.3d 87 (2007).[8]  We conclude that when the court does not impose ultimate discovery sanctions of dismissal of a complaint with prejudice or striking an answer as to liability and damages, the court should, at its discretion, hold such hearing as it reasonably deems necessary to consider matters that are pertinent to the imposition of appropriate sanctions.  The length and nature of the hearing for non-case concluding sanctions shall be left to the sound discretion of the district court.  In determining the nature of this hearing, the district court should exercise its discretion to ensure that there is sufficient information presented to support the sanctions ordered.  Further, the district court should make such findings as necessary to support its conclusions of the factors set forth in Young, 106 Nev. 88, 787 P.2d 777.

Sufficiency of the January 18, 2007, hearing

            The district court set a hearing on January 18, 2007, to consider Bahena’s motion to establish damages by way of a prove-up hearing and Goodyear’s countermotion to reconsider sanctions.  At the hearing, the district court allowed the attorneys for Bahena and Goodyear to make factual representations regarding the various discovery issues in dispute.  The court also considered the record, which included exhibits and affidavits from other attorneys for Goodyear regarding the discovery disputes in question.  The questions of the district court at the hearing to counsel pertained to various discovery requests that were propounded, and the failure of Goodyear to comply with the discovery commissioner’s recommendations and subsequent court order to produce a witness for deposition prior to December 28, 2006.  The district court further considered the objections that had been previously filed by Goodyear to the recommendations of the discovery commissioner regarding the deposition witness.

            Since the district court considered all affidavits and exhibits, and permitted the attorneys for Bahena and Goodyear to make factual representations to the court, we conclude that the district court conducted a sufficient hearing.  Based upon the factual representations made by the attorneys, as officers of the court, and the balance of the record, the district court crafted its own findings of fact and conclusions of law emanating from this hearing.[9]  The nature of the hearing complied with the requirements of Young, 106 Nev. 88, 787 P.2d 777.  Therefore, the district court did not abuse its discretion by the way it structured the hearing since the record was sufficient for the court to make its findings of willfulness.[10]

Compensatory damages

            Goodyear contends that the compensatory damages awarded by the jury are excessive.  We disagree.

            In Guaranty National Insurance Company v. Potter, we concluded that “this court will affirm an award of compensatory damages unless the award is so excessive that it appears to have been given under the influence of passion or prejudice” and “an appellate court will disallow or reduce the award if its judicial conscience is shocked.”  112 Nev. 199, 206-07, 912 P.2d 267, 272 (1996) (quotations and citations omitted).  We subsequently held that “[s]ince special damages are a species of compensatory damages, a jury has wide latitude in awarding them.  So long as there is an evidentiary basis for determining an amount that is reasonably accurate, the amount of special damages need not be mathematically exact.”  Countrywide Home Loans v. Thitchener, 124 Nev. 725, 737, 192 P.3d 243, 251 (2008) (footnote omitted).

            The compensatory damages are supported by substantial evidence.  We must “‘assume that the jury believed all [of] the evidence favorable to the prevailing party and drew all reasonable inferences in [that party’s] favor.’”  Id. at 739, 192 P.3d at 252 (alteration in original) (quoting Bongiovi v. Sullivan, 122 Nev. 556, 581, 138 P.3d 433, 451 (2006)).  Because of the loss of life and the serious injuries suffered by the appellants, we conclude there was a sufficient evidentiary basis for the award of all the compensatory damages.  We further conclude that the amount of compensatory damages are not excessive and do not shock our judicial conscience.

Punitive damages

            Bahena contends that the district court improperly required the appellants to establish liability for punitive damages.  We disagree.

            The district court has the discretion to determine what degree Goodyear was entitled to participate in the trial when it struck Goodyear’s answer as to liability.  See Hamlett v. Reynolds, 114 Nev. 863, 866-67, 963 P.2d 457, 458 (1998).  Therefore, we conclude that the district court did not abuse its discretion regarding the punitive damage liability issue by refusing to impose case concluding sanctions.

CONCLUSION

            For all the reasons set forth above, the judgment of the district court is affirmed.[11]

 

PARRAGUIRRE, C.J., and HARDESTY, DOUGLAS, CHERRY, and SAIITA, JJ., concur.

 

**********FOOTNOTES**********

[1]        Goodyear’s objections filed January 3, 2007, to the December 20, 2006, recommendations included an objection to the self-executing sanctions of deeming the documents authentic.  This same objection continued in pleadings filed by Goodyear January 8, 2007, January 17, 2007, and through a hearing held on January 18, 2007, discussed below.

[2]        On December 13, 2006, Goodyear answered all 34 interrogatories propounded by Bahena with objections.  Further, Goodyear did not verify these answers.  As previously noted, the discovery cutoff date was December 15, 2006.

[3]        The district court invited both Bahena and Goodyear to submit proposed findings of fact and conclusions of law to the district court.  However, the district court rejected the proposed findings and conclusions submitted by Bahena and Goodyear, and crafted its own findings of fact and conclusions of law.

[4]        Our dissenting colleague suggests we adopt a standard of review for discovery sanctions based upon a parallel line of federal authority.  We disagree because there is ample Nevada case authority regarding discovery sanctions.  Also, we have expressly rejected the adoption of federal authority that employs mechanical application of factors regarding qualifications of expert witnesses and that conflicts with our state law.  Higgs v. State, 126 Nev. ___, ___, 222 P.3d 648, 657-58 (2010).

[5]        After the discovery commissioner’s report and recommendations are signed and objected to, the district court has the option of affirming and adopting the recommendations without a hearing, modifying or overruling the recommendations without a hearing, or setting a date and time for a hearing upon the objections filed.  NRCP 16.1(d)(3).  If the recommendations are affirmed and adopted, the order of the district court is effective retroactive to the date of the hearing before the discovery commissioner when the ruling is verbally made.  EDCR 2.34(e) permits the discovery commissioner to stay the ruling pending review by the district court.

[6]        We further noted that damages in a prove-up must normally be established by substantial evidence.  Young, 106 Nev. at 94, 787 P.2d at 781.  However, in cases involving a default judgment as a discovery sanction, the nonoffending party has a somewhat lesser standard of proof and only needs to establish a prima facie case by substantial evidence.  Id.; Foster v. Dingwall, 126 Nev. ___, ___, 227 P.3d 1042, 1049 (2010).  Therefore, Ribeiro only had to establish a prima facie accounting.

[7]        Goodyear did not argue to the district court in its objections to the discovery commissioner’s recommendations or in its opposition filed January 8, 2007, in its countermotion for reconsideration filed January 17, 2007, nor in its objections filed January 26, 2007, that the sanctions for violating the order to produce the witness for deposition must be limited to deeming the documents in question to be authentic.  To the contrary, Goodyear argued that all sanctions including these self-executing authentication sanctions were improper and should be vacated.  Goodyear further argued that if sanctions were to be imposed, they should be limited to an order to provide supplemental discovery responses or monetary sanctions.

[8]        Also, we concluded in Arnold v. Kip, 123 Nev. 410, 168 P.3d 1050 (2007), that a case can be dismissed, which results in a dismissal with prejudice, when a party fails to comply with the discovery requirements of NRCP 16.1.  We did not hold that the Arnolds were entitled to an evidentiary hearing prior to the entry of the order of dismissal.  However, we did conclude that there is no heightened standard of review in that situation.  Id. at 418, 168 P.3d at 1055.

[9]        Rule 3.3 of the Nevada Rules of Professional Conduct sets forth the standards of candor that a lawyer has toward a court.  Rules 3.3(a)(1) and (3) provide that a lawyer shall not knowingly “[m]ake a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer” or “[o]ffer evidence that the lawyer knows to be false.”

[10]      Although Goodyear inquired at the end of the hearing if the district court wanted to hear its additional objections to the district court’s ruling, the court stated that it had listened to Goodyear’s counsel at length and read Goodyear’s paperwork.  At this hearing, Goodyear did not request to make an offer of proof as to what additional evidence Goodyear would present if the district court held an expanded evidentiary hearing regarding the discovery sanctions.  However, the district court did consider, in its January 29, 2007, order, a supplement to exhibits that was filed by Goodyear the day after the January 18, 2007, hearing, together with objections filed January 26, 2007.

[11]      We have considered the other issues raised by the parties and conclude they are without merit.

*****************************

PICKERING, J., dissenting:

            The majority’s decision to uphold the $30,000,000 default judgment in this case relies heavily on our deferential standard of review, and, in doing so, ignores the unanswered, material questions of whether Goodyear’s alleged discovery abuse was willful and whether it prejudiced Bahena.  Without an evidentiary hearing to resolve those questions, striking Goodyear’s answer was an abuse of discretion and a violation of Goodyear’s due process rights.

I.

            Although our review of discovery abuse sanctions is deferential, contrary to the majority’s view, that deference “does not automatically mandate adherence to [the district court’s] decision.”  McDonald v. Western-Southern Life Ins. Co., 347 F.3d 161, 172 (6th Cir. 2003).  “‘“Deferential review is not no review,” and “deference need not be abject.”’”  Id. (quoting Hess v. Hartford Life & Acc. Ins. Co., 274 F.3d 456, 461 (7th Cir. 2001) (quoting Gallo v. Amoco Corp., 102 F.3d 918, 922 (7th Cir. 1996))).

            Our policy favoring disposition on the merits requires us to apply a heightened standard of review where the sanction imposed, as in this case, is liability-determining.  Havas v. Bank of Nevada, 96 Nev. 567, 570, 613 P.2d 706, 707-08 (1980); Young v. Johnny Ribeiro Building, 106 Nev. 88, 92, 787 P.2d 777, 779-80 (1990).  In Nevada Power Co. v. Fluor Illinois, we held that the district court abused its discretion when it dismissed a complaint and imposed other sanctions without first holding an evidentiary hearing on factual issues related to the meaning of discovery orders and whether those orders had been violated.  108 Nev. 638, 646, 837 P.2d 1354, 1360 (1992).  In reversing the district court, we held that “[i]f the party against whom dismissal may be imposed raises a question of fact as to any of these factors, the court must allow the parties to address the relevant factors in an evidentiary hearing.”  Id. at 645, 837 P.2d at 1359 (emphasis added).

            While the majority distinguishes this case from Nevada Power by characterizing the sanctions as “non-case concluding,” the reality is that striking Goodyear’s answer did effectively conclude this case.  The sanction resulted in a default liability judgment against Goodyear and left Goodyear with the ability to defend on the amount of damages only.  Liability was seriously in dispute in this case,[1] but damages, once liability was established, were not, given the catastrophic injuries involved.  Thus, striking Goodyear’s answer was akin to a case concluding sanction, placing this case on the same footing as Nevada Power.

            Surprisingly, the majority relies on Young v. Johnny Ribeiro Building.  What it misses in Young is that we affirmed the claim-concluding sanctions there only because the district “court treated Young fairly, giving him a full evidentiary hearing.”  106 Nev. at 93, 787 P.2d at 780 (emphasis added).  This case thus is not like Young but rather like Nevada Power, in that the district court erred as a matter of law in not holding an evidentiary hearing.

II.

            When the district court struck Goodyear’s answer, Goodyear’s counsel had raised several factual questions about Goodyear’s willfulness and the extent of any prejudice to Bahena.  However, the district court did not hold or conduct the evidentiary hearing required by Nevada Power and Young to resolve the questions of fact before striking Goodyear’s answer and all defenses to liability.  This is, I submit, an example of “Sentence first—verdict afterwards,” that does not deserve deferential review.  Lewis Carroll, Alice’s Adventures in Wonderland, Chapter XII “Alice’s Evidence” (MacMillan and Co. 1865).

            The district court entered three discovery orders based on the Discovery Commissioner’s recommendations.  Because the first order merely set the language for Goodyear’s protective order, it is not a discovery order that Goodyear could have violated.  The remaining two orders were both entered by the district court on January 5, 2007, just four days prior to the district court’s decision to strike Goodyear’s answer.

            The second order adopted the Discovery Commissioner’s December 5, 2006, recommendation that all counsel meet and review written discovery to reach an agreement as to what discovery obligations remained unfulfilled.  Goodyear’s attorneys submitted affidavits averring that they met and conferred telephonically with Bahena on December 15, 2006.  According to Goodyear, it requested that Bahena present it with a list of documents Bahena wanted authenticated and a list of any other discovery issues.  Goodyear claims that Bahena failed to produce these lists.  Nonetheless, even if Bahena had provided Goodyear with the lists, the terms of the recommendation gave Goodyear 30 days, or until January 15, 2007, to “conclusively respond to what was requested.”  This order cannot justify the district court’s sanction order since the time for complying with its obligations (January 15, 2007) came six days after the district court ordered Goodyear’s answer stricken (January 9, 2007).

            The third order similarly adopted a recommendation by the Discovery Commissioner, this one dated December 14, 2006, and recommending that by December 28, 2006, Goodyear produce a representative to authenticate the 74,000 adjustment and claims documents that Goodyear had produced months earlier under NRCP 34, as they were kept in the ordinary course of its business.[2]  Goodyear made a timely objection to this recommendation on January 3, 2007.  This recommendation also is problematic as the predicate for the severe sanctions imposed.  Significantly, in his December 14 recommendation, the Discovery Commissioner rejected Bahena’s request to strike Goodyear’s answer as sanctions and instead provided a self-executing “deemed authentic” noncompliance penalty.[3]  Also important, the parties disputed the meaning of—and consequence of violating—this recommendation.  Bahena offered to seek clarification from the court—and did so on December 29, 2006, a day after Goodyear was supposed to comply with this third recommendation.  The fact that Bahena, not Goodyear, sought clarification supports Goodyear’s position that an unresolved dispute existed among the lawyers as to what, precisely, the Discovery Commissioner had directed them to do.  Further confusing things, the parties were not able to get back before the Discovery Commissioner over the holiday or thereafter because of his impending retirement, effective December 31.

            The majority’s reasoning does not acknowledge the confusion surrounding these issues but instead defers to the district court’s finding that Goodyear failed to comply with the discovery recommendations.  Based on Goodyear’s assertions, however, which it supported by affidavit, there are genuine, material questions of whether Goodyear willfully abused the discovery process.  Without resolution of these questions through an evidentiary hearing, an ultimate sanction was premature.

III.

            Goodyear additionally raised questions of whether the alleged discovery abuse prejudiced Bahena.  Goodyear maintains that Bahena was prepared for trial and therefore did not need the additional discovery sought to be compelled.  Bahena admitted to being ready for trial on January 4, 2007, before the district court struck Goodyear’s answer.

            Goodyear further contends that Bahena’s trial experts did not need Goodyear to provide more specificity with respect to the disputed documents, which comprised adjustment and claims data relating to various tires.  Rather, Goodyear asserts that Bahena’s experts had already formed their opinions prior to Bahena’s request and were amply familiar with the documents as produced by Goodyear from other Goodyear products liability litigation in which the same set of documents had been produced.  In a September 29, 2006, deposition, Bahena’s expert, Dennis Carlson, stated that all of his opinions were contained in his report and that he was prepared to give his expert testimony.  Carlson further revealed that his opinions were not based on adjustment or claims data.  Additionally, the July 5, 2006, report of another Bahena expert, Allan Kam, states that Kam supported his conclusions with claims data he already had for a nearly identical tire.  Moreover, Bahena did not refute Goodyear’s assertion that its expert Kam, through prior litigation involving Goodyear and its adjustment and claims documents, already reviewed and produced reports on the same documents Goodyear produced elsewhere in other lawsuits without the index that became the source of the core discovery dispute in this case.

            Goodyear also asserts that Bahena contributed to any prejudice it may have suffered by making delayed discovery requests and contributing to discovery and case management problems.  Bahena served its third set of written discovery on November 10, 2006, less than 30 days before the December 7, 2006, discovery cutoff date.[4]  Goodyear responded to the discovery request on December 13, 2006, which was within 30 days, after allowing 3 days for mailing, missing the verification required by NRCP 33 but promising to supply it.  Bahena filed its motion to compel answers to this third set of discovery on December 29, 2006.  Goodyear opposed the motion on the grounds that Bahena filed it after the discovery cutoff date and that Bahena’s third discovery request came too close to trial.

            The majority’s decision defers to the district court’s recitation that Bahena suffered prejudice.  Without an evidentiary hearing to resolve the existence and extent of the prejudice—including whether imposing liability-terminating sanctions was required to stanch that prejudice—we have no findings to which deference is due.

IV.

            This court would not affirm summary judgment where a party had raised factual disputes like those asserted here concerning willfulness and prejudice.  However, the majority’s decision is analogous to affirming summary judgment despite the record presenting numerous unresolved factual issues.

            While the majority relies on the district court’s inherent power to impose sanctions, due process requirements limit that power.  See Wyle v. R.J. Reynolds Industries, Inc., 709 F.2d 585, 589 (9th Cir. 1983) (citing Hammond Packing Co. v. Arkansas, 212 U.S. 322, 349-54 (1909)).  “Sanctions interfering with a litigant’s claim or defenses violate due process when imposed merely for punishment of an infraction that did not threaten to interfere with the rightful decision of the case.”  Id. at 591 (citing G-K Properties v. Redevelopment Agency, Etc., 577 F.2d 645, 648 (9th Cir. 1978)).  Put another way, the district court’s sanction must relate to the prejudice caused by the matter at issue in the discovery order.  Id.  With no evidentiary hearing to decide the disputed issues of fact, the benefit of the doubt on them should go to the party who lost, not the party who won.  Applying this familiar summary judgment standard, striking Goodyear’s answer appears to have been an excessive penalty and was not proportional to Bahena’s discovery dispute claims.  To uphold this ultimate sanction in the face of these factual questions and without the benefit of an evidentiary hearing violates the most fundamental of due process rights and for that reason, I respectfully dissent.

 

**********FOOTNOTES**********

[1]        Goodyear avoided punitive damages in this case by arguing that a road hazard, rather than design or manufacturing defect, caused the tire failure from which this accident resulted.  This suggests that its defenses to liability had a reasonable chance of success.

[2]        The core dispute appears to have been whether Goodyear was entitled to produce the documents as kept in the ordinary course of its business as NRCP 34 permits or should be required to create an index of the documents to facilitate their review, a dispute driven in part, according to Goodyear, by the breadth of the discovery sought.

[3]        The Discovery Commissioner included the following express noncompliance penalty in his December 14 recommendation, making it self-executing:  “Any document Goodyear’s representative does not either affirm or deny as authentic will be deemed authentic.”  Goodyear had no indication that noncompliance risked more serious penalty.  Of note, Bahena did not file cross-objections to either of the Discovery Commissioner’s reports and recommendations, in which the Discovery Commissioner denied Bahena’s requests for sanctions.  While the majority tries to shore up the district court’s order by citing the Discovery Commissioner’s “findings” as those made by a “master,” the exercise fails because (1) the Discovery Commissioner didn’t hold an evidentiary hearing and (2) the relevant finding he made was that the discovery issues did not merit the severe sanctions Bahena sought, a finding Bahena accepted by not objecting to it.

[4]        The majority goes with the December 15, 2006, discovery cutoff date referenced in some of the motion papers in the district court.  If the court-ordered discovery cutoff date of December 7, 2006, was extended to December 15, 2006, the order by which this extension was granted does not appear in the record.  From what appears, the court-ordered cutoff was December 7, 2006.

*****************************

Cite as: Strickland v. Waymire

126 Nev. Adv. Op. No. 25

July 1, 2010

 

IN THE SUPREME COURT OF THE STATE OF NEVADA

 

No. 55290

LINDA G. STRICKLAND,

Appellant,

    vs.

EDWARD WAYMIRE, CHRISTINE MILBURN, ROBERT DRANEY, AND OTHERS SIMILARLY SITUATED,

Respondents.

No. 55551

TRAVIS CHANDLER,

Appellant,

    vs.

EDWARD WAYMIRE, CHRISTINE MILBURN, ROBERT DRANEY, AND OTHERS SIMILARLY SITUATED,

Respondents.

 

            Consolidated proper person appeals from a district court summary judgment ordering appellants’ recall elections to proceed.  First Judicial District Court, Carson City; James Todd Russell, Judge.

            Reversed.

 

Linda G. Strickland, Boulder City, in Proper Person.

Travis Chandler, Boulder City, in Proper Person.

Mueller Hinds & Associates and Chad N. Dennie, Las Vegas, for Respondents.

 

BEFORE THE COURT EN BANC.

 

OPINION

By the Court, PICKERING, J.:

            These consolidated appeals require us to interpret Article 2, Section 9 of the Nevada Constitution, which subjects every public officer in Nevada to recall by special election upon the filing of a qualifying recall petition signed by “not less than twenty-five percent (25%) of the number” of registered voters “who actually voted in the state or in the county, district, or municipality [that the officer] represents, at the election in which [the officer] was elected.”  Nev. Const. art. 2, § 9.

            The question presented is whose signature counts toward the 25 percent needed to qualify a recall petition.  Is it any registered voter, as the district court held?  Or must the signatures come from those registered voters who in fact—“actually”—voted at the election in which the public officer was elected, as the Secretary of State and the Attorney General have concluded?  Reasonable policy arguments exist on both sides.  But Article 2, Section 9’s text and relevant history convince us that the latter reading is more faithful to the provision’s test and the evident understanding of the citizens who enacted it.  We therefore reverse.

I.

            Appellants Linda Strickland and Travis Chandler were elected to the Boulder City Council in 2007: Strickland as a result of achieving an absolute majority in the April 2007 primary; Chandler, in the June 2007 general election that followed.  In 2008, separate recall petitions were circulated against each of them.  Enough people signed to qualify the petitions, if the signers only needed to be registered voters.  However, not everyone who signed the petitions actually voted in the 2007 primary and general elections that seated Strickland and Chandler, respectively.  Counting only the signatures of people who voted in the relevant election, neither petition met the 25 percent needed to qualify.

            Respondents are Boulder City citizens who submitted the petitions to recall Strickland and Chandler to the Secretary of State in June 2008.  In March and May 2008, before the petitions were submitted, the Secretary of State and Attorney General issued separate letter rulings, in which they interpreted Article 2, Section 9 to require that a qualifying recall petition be signed by voters who actually voted in the officer’s election, comprising 25 percent of the total voter turnout for that election.  Consistent with these rulings, the Secretary of State rejected the petitions to recall Strickland and Chandler.  Dissatisfied, respondents sued pursuant to NRS 293.12795(3).

            Not much happened in the suit (beyond Strickland and Chandler intervening to support the defendant Secretary of State) until September 2009, when respondents moved for summary judgment.  They based their motion mainly on Senate Bill (S.B.) 156, which the 2009 Nevada Legislature passed in response to the interpretations given Article 2, Section 9 of the Nevada Constitution by the Secretary of State and Attorney General and the failed recall petitions against Strickland and Chandler.  S.B. 156 amends NRS 306.020(2), effective October 1, 2009, to provide that a “petition to recall a public officer may be signed by any registered voter of the [locale] that the public officer represents, regardless of whether the registered voter cast a ballot in the election at which the public officer was elected.”  2009 Nev. Stat., ch. 61, § 1, at 168.

            By order dated January 7, 2010, the district court granted summary judgment, validating the recall petitions against Strickland and Chandler.  This appeal timely followed.  We ordered a stay pending briefing, argument, and decision and now reverse.

II.

A.

            We begin with the text of Article 2, Section 9 of the Nevada Constitution, in particular, its first two and final sentences, which state:

Every public officer in the State of Nevada is subject, as herein provided, to recall from office by the registered voters of the state, or of the county, district, or municipality which he represents. For this purpose, not less than twenty-five percent (25%) of the number who actually voted in the state or in the county, district, or municipality which he represents, at the election in which he was elected, shall file their petition, in the manner herein provided, demanding his recall by the people. . . .  Such additional legislation as may aid the operation of this section shall be provided by law.

The remaining text of Article 2, Section 9 is set out below.[1]  In summary, it directs that the recall petition explain, in fewer than 200 words, why recall is demanded; that, if the petition qualifies, a special election must be called; and that other candidates may be nominated for the special election, with the candidate who receives the most votes to finish the term.

            In interpreting Article 2, Section 9, we, like the United States Supreme Court, “are guided by the principle that ‘[t]he Constitution was written to be understood by the voters; its words and phrases were used in their normal and ordinary as distinguished from technical meaning.’”  District of Columbia v. Heller, 554 U.S. ___, ___, 128 S. Ct. 2783, 2788 (2008) (alteration in original) (quoting United States v. Sprague, 282 U.S. 716, 731 (1931)).  “[W]hen a constitutional provision’s language is clear on its face, we will not go beyond that language in determining the voters’ intent.”  Secretary of State v. Burk, 124 Nev. 579, 590, 188 P.3d 1112, 1120 (2008).  Conversely, “[i]f a constitutional provision’s language is ambiguous, meaning that it is susceptible to ‘two or more reasonable but inconsistent interpretations,’ we may look to the provision’s history, public policy, and reason to determine what the voters intended.”  Id. (quoting Gallagher v. City of Las Vegas, 114 Nev. 595, 599, 959 P.2d 519, 521 (1998)) (footnote omitted).

            The goal of constitutional interpretation is “to determine the public understanding of a legal text” leading up to and “in the period after its enactment or ratification.” 6 Ronald D. Rotunda & John E. Nowak, Treatise on Constitutional Law § 23.32 (4th ed. 2008 & Supp. 2010).  Not all legislative history is created equal.  While “[c]ontemporary construction of the Constitution is very relevant,” id., and “legislation enacted immediately following the . . . adoption of an amendment [is given great weight] in determining the scope of a constitutional provision,” id. § 23.34, later statutes “inconsistent with the Constitution [cannot] furnish a construction that the Constitution does not warrant.”  Id. § 23.33.

B.

            We confront two very different interpretations of Article 2, Section 9 in this case.  Both concentrate on the phrase “not less than twenty-five percent (25%) of the number who actually voted” but each picks different words to emphasize. The first interpretation favors Strickland and Chandler and has the support of the Secretary of State and Attorney General.  This interpretation takes the phrase “who actually voted” as determinative and holds that only those who voted in the election that seated the public officer can qualify a petition to recall that officer.  The second interpretation, for which respondents contend, won in the district court and carried in the 2009 Legislature.  This interpretation sees the word “number” as purely quantitative and takes it as settling matters in favor of allowing the signature of any registered voter to qualify a recall petition.

            It is a mistake to divorce the debate over the meaning of words from their context.  A recall election allows registered voters to remove elected officers from public office ahead of the next regularly scheduled election.  Once a recall election is called, all registered voters can vote in it.  Thus, the first sentence of Article 2, Section 9 declares: “Every public officer . . . is subject, as herein provided, to recall from office by the registered voters.”

            However, there is a seemingly deliberate change in terminology between the first and second sentences in Article 2, Section 9.  The second sentence concerns who can petition for a recall election and states: “For this purpose, not less than . . . 25% of the number who actually voted . . . at the election in which [the public officer] was elected, shall file their petition . . . demanding his recall by the people.”  As the Attorney General cogently reasons, “[t]he change in terminology from ‘registered voters’ in the first sentence to ‘25% of the number who actually voted’ in the second sentence indicates a limitation on who can sign the petition demanding a recall election, i.e., registered voters who actually cast ballots in the specific election.”  This limitation makes sense.  A recall election involves a “do-over” of an already-concluded election ahead of the next-scheduled election.  As a parliamentary matter, it is not unreasonable to limit the beginning, petition-stage part of the recall process to those who turned out to vote the first time around.  Then, if the petition qualifies and a special election gets set, all registered voters participate in deciding whether to retain or replace the targeted official.

            The parties direct us to dictionary definitions of the words “number” and “actually.”  “Number” means “quantity” and “total” but it also means “collection or company.”  Webster’s New Universal Unabridged Dictionary 1330 (2d ed. 1996).  If taken to mean “quantity” or “total,” the use of the word “number” in Article 2, Section 9 favors respondents.  Read to mean “collection or company,” however, “number” suggests a group of individuals with individual characteristics and is consistent with the meaning advanced by Strickland and Chandler.  The use of the personal relative pronoun “who” to introduce the clause immediately following “number” suggests the latter.  See George O. Curme, A Grammar of the English Language: Syntax 224 (1931) (“It is the tendency to express the idea of personality by the use of who and the idea of lack of life or personality by the use of which.”); id. at 210 (“The usual relatives were that and which; but after who had acquired definite force it rapidly came into favor, for it had a great advantage over its competition—it referred only to persons—hence for reference to persons it was a clearer form.”).

            “Actually” means “as an actual or existing fact; really.”  Webster’s, supra, at 21.  Thus, literally adhering to the provision’s words, the signer must have “as an actual or existing fact; really” voted at the election in which the position was filled.  As an adverb, “actually” may not add very much to the verb “voted.” Still, as the debate in this case illustrates, the word “actually” does vivify the personal “who” by which the phrase “actually voted” is introduced, personalizing “number” as something more than just abstract quantity; it also adds emphasis to “voted.”  This “may not be very heavy work for the [word ‘actually’] to perform, but a job is a job, and enough to bar the rule against redundancy from disqualifying an otherwise sensible reading.”  Gutierrez v. Ada, 528 U.S. 250, 258 (2000).  And, as respondents conceded at oral argument, their reading of Article 2, Section 9 leaves “actually” with no job at all, which our rules do not allow.  Youngs v. Hall, 9 Nev. 212, 222 (1874) (“In expounding a constitutional provision such construction should be employed as will prevent any clause, sentence or word from being superfluous, void or insignificant.”).

            Text alone, in sum, favors Strickland and Chandler.

C.

            Granting for argument’s sake that Article 2, Section 9 is reasonably susceptible to two interpretations and so ambiguous—though that seems generous—we look beyond text to relevant history.

            Article 2, Section 9 was added to the Nevada Constitution in 1912.  See 1911 Nev. Stat., file no. 4, at 448.  It has since been amended twice: first in 1970; and again in 1996.  See 1969 Nev. Stat., file no. 43, at 1663; 1995 Nev. Stat., file no. 25, at 2888.

            Originally, Article 2, Section 9 did not mention “number” or “actually.” The first sentence read much like it does today, except “qualified electors” stood in for “registered voters.”  However, the second sentence was different and said:

For this purpose [recall] not less than twenty-five per cent (25%) of the qualified electors who vote in the state or in the county, district, or municipality electing said officer, at the preceding election, for justice of the supreme court, shall file their petition, in the manner herein provided, demanding his recall by the people.

1911 Nev. Stat., file no. 4, at 448.

            Minus “actually” and with the baseline a potentially unrelated general election “for justice of the supreme court,” the case for using the number purely quantitatively—as the end result of multiplying the defined base number by .25, nothing more—seems reasonable.  But this was not the contemporaneous interpretation.  From day one, both the Legislature and the judiciary viewed even the original version of Article 2, Section 9 as imposing both qualitative and quantitative restrictions on who could qualify a recall petition—limiting the petition prerogative to  electors who had turned out and voted in the earlier relevant election.

            State v. Scott, 52 Nev. 216, 285 P. 511 (1930), analyzes the original version of Article 2, Section 9 and its companion legislation in detail.  “Pursuant to [the newly ratified Article 2, Section 9], the [1913] legislature passed an act [1913 Nev. Stat., ch. 258, §§ 1-11, at 400-01] consisting of eleven sections providing for the recall of public officers.”  Scott, 52 Nev. at 225, 285 P. at 513.  Section 2 of the 1913 act, which Scott reprints in full, said unmistakably that qualifying a recall petition took signatures from those who had voted in the relevant baseline election:

For the purpose of recalling any public officer there shall be first filed . . . a petition, signed by the qualified electors who voted in the state, or in the county, district or municipality electing such officer, equal in number to twenty-five per cent of the votes cast in said state, or in the county, district or municipality for the office of justice of the supreme court, at the last preceding election.

Id.  Scott goes on to state that these provisions in the contemporaneously enacted statute, “[e]xcept in some minor details, . . . are the same as the provisions of said section 9, article 2, of the [C]onstitution.”  Id. at 226, 285 P. at 513.  Accord Batchelor v. District Court, 81 Nev. 629, 631-32, 408 P.2d 239, 240 (1965) (“we read the constitutional language to require the recall petition to be signed by not less than 25 percent of the qualified electors of [(coincidentally)] Boulder City who voted at the last general election for a Supreme Court justice”; again stating that the updated version of the companion statute considered in Scott, while it “strays somewhat from the constitutional language . . . does not carry a different meaning nor impose a different requirement” than Article 2, Section 9).

            In 1970, the voters ratified the first amendment to Article 2, Section 9.  1969 Nev. Stat., file no. 43, at 1663.  “Qualified electors” was replaced with “registered voters,” and “actually” and “number” made their debut.  Id.  The reference to the election “for justice of supreme court” was eliminated and replaced by “general” election.  Id.  As revised, the second sentence of Article 2, Section 9 read:

For this purpose [recall], a number of registered voters not less than twenty-five per cent (25%) of the number who actually voted in the state or in the county, district, or municipality electing said officer, at the preceding general election, shall file their petition, in the manner herein provided, demanding his recall by the people.

Id.

            If by the introduction of the word “number” the 1970 voters intended to eliminate the rule that only those who exercised their right to vote in the relevant baseline election can qualify a recall petition, you would expect a direct statement and express language to that effect, given Scott and the law it discussed as settled.  See 3 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 58:3, at 114-15 (7th ed. 2008) (“‘where a[ later] act purports to overturn long-standing legal precedent and completely change the construction placed on a statute by the courts,^[[2]] it is not too much to require that it be done in unmistakable language’” (quoting State ex rel. Housing Auth. of Plant City v. Kirk, 231 So. 2d 522 (Fla. 1970))).  No such statement was made.  Instead, along with the word “number” came the word “actually” and the phrase “who actually voted”—signifying that the requirement that a qualifying recall petition be signed by voters who voted in the relevant election would remain and certainly not suggesting it would be scrapped.

            The question put to the voters who ratified Article 2, Section 9’s amendment in 1970 confirms our reading.  It asked point-blank: “Shall [Article 2, Section 9] relating to the recall of public officers” be amended to “provid[e] that the number of petitioners required to recall public officers be not less than 25 percent of the registered voters who actually voted at the last general election?”  Constitutional Amendments and Other Propositions to be Voted Upon in State of Nevada at General Election, November 3, 1970, Question No. 2 (available at Nevada Legislative Counsel Bureau Research Library).[3]  Thus phrased, the ballot question passed on a popular vote of 62,460 to 50,545.  Id.

            And if, despite all this, any niggling doubt remained as to what “number who actually voted” signified, it was laid to rest in Foley v. Kennedy, 110 Nev. 1295, 885 P.2d 583 (1994):

According to the referenced constitutional provision, twenty-five percent of the persons who actually voted in the relevant political division in the preceding general election shall file their petition for recall.  Thus, twenty-five percent of the persons who voted in the general election preceding the filing of the petition must sign the recall petition.

Id. at 1299, 885 P.2d at 585 (dictum).

            The 1996 amendments changed the relevant baseline election from the “preceding general election” to “the election in which [the officer] was elected,” 1995 Nev. Stat., file no. 25, at 2888, but not the requirement that a qualifying recall petition be signed by people who voted in the relevant election, comprising 25 percent of the turnout for that election.

            The history of Article 2, Section 9 (before the 2009 Legislature’s passage of S.B. 156, more on which below) thus leads to the same conclusion as our exegesis of its text: While all registered voters can vote at a special recall election, only voters who voted at the relevant baseline election can qualify a recall petition, and it takes 25 percent of them for a special election to be called.

D.

            This brings us to policy.  As respondents note, it is the general “rule that an act for recall should be liberally construed with a view to promote the purpose for which it was enacted.”  Scott, 52 Nev. at 231, 285 P. at 515; Cleland v. District Court, 92 Nev. 454, 455-56, 552 P.2d 488, 489 (1976).  But what does this mean here?  Unlike impeachment, which requires “misdemeanor or malfeasance in office,” Nev. Const. art. 7, § 2, recall requires only a statement in the petition of “the reasons why . . . recall is demanded,” Nev. Const. art 2, § 9—the legitimacy of which the voters alone decide.

            “Recall is aimed at removing officials who have acted ‘corruptly’ in the sense that they are no longer representing the people but are serving the interests of a powerful minority,” Elizabeth Garrett, Democracy in the Wake of the California Recall, 153 U. Pa. L. Rev. 239, 272 (2004), or who have “gone back on key promises [such that] the people should be able to make use of the recall process to undo a selection process in which they were effectively sold a false bill of public goods.” Vikram David Amar, Adventures in Direct Democracy: The Top Ten Constitutional Lessons from the California Recall Experience, 92 Cal. L. Rev. 927, 946 (2004) (footnote omitted).  Nevada adopted its recall provision in 1912, just a year after California did.  Cal. Const. art. XXIII, § 1 (1911).  In Nevada, as in California, “there is no evidence to suggest that framers, adopters, and early users of the recall measure saw it as a mechanism to rerun an ordinary election in which there had been no dishonesty and after which there had been no evidence of special interest group capture.”  Amar, supra, at 946; 27 The American Nation: A History 164 (Albert Bushnell Hart ed., Harper 1918).  And, as we have noted, the “[s]tate has a [particular] interest in ‘safeguarding’ the recall procedure” given that “a recall petition attacks a public official whom the public has already once elected and, if successful, requires a costly special election at the taxpayers’ expense.”  Citizens for Honest Gov’t v. Sec. of State, 116 Nev. 939, 949, 11 P.3d 121, 127 (2000).

            Requiring 25 percent of the voters who turned out at the election that put the targeted official in office to qualify a recall petition makes recall more difficult than respondents’ interpretation would.  However, that does not make the provision suspect or illegitimate.  Respondents’ interpretation would make a low-turnout election readily subject to a do-over at the behest of those who simply stayed home and didn’t bother to vote—especially where, as can occur, an unopposed officer is elected by virtue of a single vote in a primary—with the perverse result that the least controversial elections would be easiest to undo.  Allowing citizens who did not vote to call for a do-over arguably disenfranchises those voters who participated in selecting the official.  This carries its own risks of “undermin[ing] an element of representative democracy, namely, regularly scheduled elections which allow for political accountability at regular periods.”  Garrett, supra, at 273.

            Different states have drawn the recall battle lines differently, depending on how their citizens assess the strength of the competing policies in play.  See Jay M. Zitter, Annotation, Sufficiency of Technical and Procedural Aspects of Recall Petitions, 116 A.L.R.5th 1 (2004).  Where Nevadans have drawn the line makes practical sense and deserves respect.

E.

            Last, there is S.B. 156.  With an effective date of October 1, 2009, this legislation postdates the petitions to recall Strickland and Chandler and so doesn’t directly apply to them.  See Burk, 124 Nev. at 592, 188 P.3d at 1121 (statutes normally do not apply retroactively to acts completed before their effective date).  Nonetheless, respondents urge that we must read Article 2, Section 9 their way to avoid putting the Constitution at odds with the newly enacted provisions of NRS 306.020(2).  This argument has matters backward.  “The constitution may not be construed according to a statute enacted pursuant thereto; rather, statutes must be construed consistent with the constitution,” Foley, 110 Nev. at 1300, 885 P.2d at 586—and rejected if inconsistent therewith.  See 6 Rotunda & Nowak, Treatise on Constitutional Law, supra, § 23.33. Accepting respondents’ position “would require the untenable ruling that constitutional provisions are to be interpreted so as to be in harmony with the statutes enacted pursuant thereto; or that the constitution is presumed to be legal and will be upheld unless in conflict with the provisions of a statute.”  Foley, 110 Nev. at 1300-01, 885 P.2d at 586.

            Nor does S.B. 156 gain sway in this case by reason of the final sentence of Article 2, Section 9, which states: “Such additional legislation as may aid the operation of this section shall be provided by law.”  This sentence licenses legislation that “‘aid[s] the operation’ of the recall right” provided in Article 2, Section 9, Citizens for Honest Gov’t, 116 Nev. at 947, 11 P.3d at 126 (quoting Nev. Const. art. 2, § 9), not law that changes the constitution’s substantive terms without submitting the constitutional change to popular vote.  See We the People Nevada v. Secretary of State, 124 Nev. 874, 886-87, 192 P.3d 1166, 1174-75 (2008).

III.

            Respondents assert that our reading of Article 2, Section 9 abridges the voters’ “fundamental right to have access to the ballot.”  This conflates the right to submit a petition calling for recall with the right to vote at the special election that follows, which are two different things.  A special election called as a result of a qualifying recall petition is open to all registered voters on equal terms.  As to the initiating petition itself, the state has an “‘important’ [interest in] promot[ing] the efficient regulation of recall petitions so that ‘some sort of order, rather than chaos’ accompanies the process” and so that “a costly special election at the taxpayers’ expense” ahead of the next-scheduled election is not called except as provided in the state constitution.  Citizens for Honest Gov’t, 116 Nev. at 947, 949, 11 P.3d at 126, 127 (quoting Burdick v. Takushi, 504 U.S. 428, 433 (1992)).  Differentiating between who can initiate a recall petition and who can vote at the special election that follows the filing of a qualified recall petition does not offend the Fourteenth Amendment.  See Anderson v. Celebrezze, 460 U.S. 780, 788 (1983) (“there must be a substantial regulation of elections if they are to be fair and honest and if some sort of order . . . is to accompany the democratic processes”).

            For these reasons we REVERSE.

 

PARRAGUIRRE, C.J., and HARDESTY, DOUGLAS, CHERRY, SAITTA, and GIBBONS, JJ., concur.

 

**********FOOTNOTES**********

[1]        The balance of Article 2, Section 9 reads:

They shall set forth in said petition, in not exceeding two hundred (200) words, the reasons why said recall is demanded. If he shall offer his resignation, it shall be accepted and take effect on the day it is offered, and the vacancy thereby caused shall be filled in the manner provided by law. If he shall not resign within five (5) days after the petition is filed, a special election shall be ordered to be held within thirty (30) days after the issuance of the call therefor, in the state, or county, district, or municipality electing said officer, to determine whether the people will recall said officer. On the ballot at said election shall be printed verbatim as set forth in the recall petition, the reasons for demanding the recall of said officer, and in not more than two hundred (200) words, the officer’s justification of his course in office. He shall continue to perform the duties of his office until the result of said election shall be finally declared. Other candidates for the office may be nominated to be voted for at said special election. The candidate who shall receive highest number of votes at said special election shall be deemed elected for the remainder of the term, whether it be the person against whom the recall petition was filed, or another. The recall petition shall be filed with the officer with whom the petition for nomination to such office shall be filed, and the same officer shall order the special election when it is required. No such petition shall be circulated or filed against any officer until he has actually held his office six (6) months, save and except that it may be filed against a senator or assemblyman in the legislature at any time after ten (10) days from the beginning of the first session after his election. After one such petition and special election, no further recall petition shall be filed against the same officer during the term for which he was elected, unless such further petitioners shall pay into the public treasury from which the expenses of said special election have been paid, the whole amount paid out of said public treasury as expenses for the preceding special election.

[2]        Rules of statutory construction apply to constitutional interpretation.  Burk, 124 Nev. at 590 n.32, 188 P.3d at 1120 n.32.

[3]        The 1970 amendment changed the baseline election, not the requirement that the signer have voted in the baseline election, however defined.  We note that the explanation accompanying the ballot question specified that a “yes” vote would:

chang[e] the number and qualifications of petitioners required to recall public officers from not less than 25 percent of the qualified electors who vote in the preceding election in the state, county, district or municipality electing the officer in question to not less than 25 percent of the registered voters who actually voted at the last general election.

The reference to the preceding local election is puzzling given that the existing version of Article 2, Section 9, as interpreted in both Scott and Batchelor, calculated the signers as 25 percent of those who had voted in the most recent local election at which a supreme court justice was on the ballot.  The reference appears to be to the challenge the court rejected in Batchelor, where it was argued the percentage needed to come from those who had voted in the officer’s election.  See Batchelor, 81 Nev. at 631-32, 408 P.2d at 240.  While the history of Article 2, Section 9 shows shifts as to which past election should be the baseline for the 25-percent calculation, the commitment to limiting the petition prerogative to those who actually voted in the relevant baseline election has been unwavering.

*****************************

Cite as: Renown Health v. Vanderford

126 Nev. Adv. Op. No. 24

July 1, 2010

 

IN THE SUPREME COURT OF THE STATE OF NEVADA

 

No. 51755

 

RENOWN HEALTH, INC., F/K/A WASHOE MEDICAL CENTER, INC.,

Appellant,

    vs.

BETTY VANDERFORD, INDIVIDUALLY AND AS THE PERSONAL REPRESENTATIVE OF CHRISTOPHER WALL, A MINOR,

Respondent.

 

            Appeal from a district court order dismissing a medical malpractice action.  Second Judicial District Court, Washoe County; Janet J. Berry, Judge.

            Reversed.

            CHERRY, J., with whom SAITTA and GIBBONS, JJ., agreed, dissented.

 

Piscevich & Fenner and Margo Piscevich, Reno; Molof & Vohl and Robert C. Vohl, Reno, for Appellant.

John P. Echeverria, Reno; Durney & Brennan and Peter D. Durney, Reno, for Respondent.

Bradley Drendel & Jeanney and Bill Bradley, Reno, for Amicus Curiae Nevada Justice Association.

Lewis & Roca, LLP, and Daniel F. Polsenberg and Jennifer B. Anderson, Las Vegas, for Amicus Curiae Nevada Hospital Association.

Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC, and D. Lee Roberts, Jr., and Rosemary Missisian, Las Vegas, for Amicus Curiae Catholic Healthcare West.

 

BEFORE THE COURT EN BANC.

 

OPINION

 

By the Court, PARRAGUIRRE, C.J.:

            In this appeal, we consider whether hospitals owe an absolute nondelegable duty to provide competent medical care to their emergency room patients through independent contractor doctors.  Although the parties settled in this matter, appellant Renown Health, Inc., reserved its right to appeal the district court’s interlocutory order granting partial summary judgment based on the imposition of a nondelegable duty.  A portion of the settlement remains contingent upon this appeal.  We conclude that no such absolute duty exists under Nevada law, nor are we at this time willing to judicially create one.  Accordingly, we reverse the district court’s grant of partial summary judgment insomuch as the district court concluded that hospitals have such a nondelegable duty.  We hold that Renown may be liable for patient injuries under the ostensible agency doctrine that we previously recognized in Schlotfeldt v. Charter Hospital of Las Vegas, 112 Nev. 42, 910 P.2d 271 (1996).[1]

FACTS AND PROCEDURAL HISTORY

            This appeal arises from the tragic illness of respondent Betty Vanderford’s minor son Christopher Wall.  After he complained of headaches, nausea, and fever, Vanderford took Christopher to Renown’s emergency room on four different occasions.  During the first visit, tests were performed and Christopher was discharged and referred to a specialist.  On the second visit, he was given a prescription for an antibiotic and again discharged.  On the third visit, Christopher was given a prescription for Vicodin and encouraged to continue taking his antibiotic.  Different doctors attended to him on each of these visits.

            Vanderford took Christopher to Renown’s emergency room for a fourth time after she found him unconscious in the bathroom.  At that time, he was diagnosed with basilar meningitis and complications including abscesses.  As a result of his illness, Christopher suffered permanent, debilitating injuries, including brain damage.

            Vanderford sued Renown in her individual capacity and on behalf of Christopher.  The district court granted partial summary judgment for Vanderford, finding that Renown owed Christopher an absolute nondelegable duty such that it was liable for the acts of the emergency room doctors, who were independent contractors.

            The district court provided four bases to support its conclusion that hospitals owe an absolute nondelegable duty to their emergency room patients.  The district court relied on Nevada statutes, the Joint Committee on the Accreditation of Health Organizations (JCAHO) standards, with which Renown complied, public policy, and common law principles found in sections 428 and 429 of the Restatement (Second) of Torts and cases from Alaska and South Carolina to impose an absolute nondelegable duty as a matter of law.  The district court distinguished Oehler v. Humana, Inc., 105 Nev. 348, 775 P.2d 1271 (1989), and Schlotfeldt v. Charter Hospital of Las Vegas, 112 Nev. 42, 910 P.2d 271 (1996), stating that neither case involved an emergency room patient and an independent contractor doctor.  Vanderford and Renown agreed on a settlement, resolving all issues except the duty issue, on which Renown reserved its right to appeal.

DISCUSSION

            Renown argues that the district court erred by concluding that it had an absolute nondelegable duty to provide competent medical care to its emergency room patients through its independent contractor doctors because no basis for imposing such a duty exists under Nevada law.  Renown therefore argues that the district court erred by granting partial summary judgment in this case.  We agree.  We also discuss the ostensible agency doctrine as applied to emergency room scenarios like the one in this case.

Standard of review

            We review a district court’s decision to grant summary judgment and its conclusions regarding questions of law de novo, without deference to the findings of the lower court.  Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005); Pressler v. City of Reno, 118 Nev. 506, 509, 50 P.3d 1096, 1098 (2002).

The district court erred in imposing an absolute nondelegable duty on Renown

            The district court based its decision to impose an absolute nondelegable duty on Renown on Nevada’s statutory scheme, the JCAHO standards, public policy, and the common law.  However, we conclude that the district court erred in this determination because there is no basis in Nevada law for imposing such a duty.

            Generally, hospitals are not vicariously liable for the acts of independent contractor doctors.  Oehler v. Humana, Inc., 105 Nev. 348, 351, 775 P.2d 1271, 1273 (1989); see Restatement (Second) of Torts § 409 (1965).  The imposition of an absolute nondelegable duty is an exception to this general rule.  Restatement (Second) of Torts § 409 (1965).  An absolute nondelegable duty is essentially a strict liability concept, where, despite delegation of a duty to an independent contractor, the principal remains primarily responsible for improper performance.  See Black’s Law Dictionary 544 (8th ed. 2004).  While we have recognized some exceptions to the general rule that hospitals are not vicariously liable for the acts of independent contractor doctors, see, e.g., Schlotfeldt v. Charter Hosp. of Las Vegas, 112 Nev. 42, 910 P.2d 271 (1996), there is no legal or policy basis for imposing an absolute nondelegable duty on Renown, and we decline to adopt one for the reasons set forth below.

            First, Nevada’s statutory scheme regulating hospital emergency room care does not provide a basis for imposing an absolute nondelegable duty on hospitals.  See NRS Chapter 439B.  The provisions create a scheme under which a hospital is a policy-setter and overseer, and the provisions contemplate the delegation of medical care to qualified professionals.  See, e.g., NRS 439B.410.  Similarly, the Nevada Administrative Code highlights a hospital’s administrative and supervisory role, requiring that hospitals set procedure and ensure that policies and provisions conform to national standards.  See, e.g., NAC 449.331, 449.349, 449.3622.

            Second, the JCAHO standards, with which Renown complied, do not require an absolute nondelegable duty.  Instead, these requirements again emphasize a hospital’s role as a policy-setter and administrator.  JCAHO, Accreditations Manual for Hospitals, Emergency Services, Standards I-V.

            Third, we decline to impose an absolute nondelegable duty on hospitals based upon public policy.  This court may refuse to decide an issue if it involves policy questions better left to the Legislature.  Nevada Hwy. Patrol v. State, Dep’t Mtr. Veh., 107 Nev. 547, 550-51, 815 P.2d 608, 610-11 (1991); see also Niece v. Elmview Group Home, 929 P.2d 420, 428 (Wash. 1997) (noting that the policy decision to expand the scope of an employer’s liability for an employee’s intentional acts against a person to whom the employer owes a duty of care “should be left to the legislature”).  The Legislature has heavily regulated hospitals and would have codified a nondelegable duty to emergency room patients if the Legislature had intended such a duty to be imposed on hospitals.

            Finally, the common law relied upon by the district court and Vanderford does not support the imposition of an absolute nondelegable duty.  In Jackson v. Power, 743 P.2d 1376 (Alaska 1987), the Alaska Supreme Court imposed a nondelegable duty on hospitals, holding them vicariously liable for a doctor’s negligence when a patient visits the emergency room and the hospital assigns a doctor to the patient.  Id. at  1385.  But subsequently, the Alaska Legislature modified this holding, passing a law that allows hospitals to rebut the nondelegable duty by proving it was unreasonable for the patient to assume that the hospital provided care because the patient had notice of the doctor’s independent contractor status.  Alaska Stat. § 09.65.096 (2008).[2]  Further, in Fletcher v. South Peninsula Hospital, the Alaska Supreme Court refused to extend the nondelegable duty to operating rooms.  71 P.3d 833, 839 (Alaska 2003).

            Here, the district court also relied on caselaw from South Carolina.  In Simmons v. Tuomey Regional Medical Center (Simmons I), 498 S.E.2d 408 (S.C. Ct. App. 1998), a case involving hospitals’ duties in the emergency room setting, the South Carolina Court of Appeals reversed a district court grant of summary judgment for a hospital, deciding that public reliance and regulations imposed on hospitals “created an absolute duty for hospitals to provide competent medical care in their emergency rooms.”  Id. at 411.  On appeal, the South Carolina Supreme Court modified the absolute nondelegable duty adopted by the court in Simmons I.  Simmons v. Tuomey Regional Medical Center (Simmons II), 533 S.E.2d 312, 322 (S.C. 2000).  The Simmons II court concluded that most jurisdictions hold hospitals liable for the acts of independent contractor doctors under various theories, and this result remains the same, “whether it is through a theory of apparent agency or nondelegable duty.”  Id. at 320.  The modified approach of Simmons II, called a nonabsolute nondelegable duty, expressly adopted the Restatement (Second) of Torts section 429, which is also “sometimes described as ostensible agency.”  Simmons II, 533 S.E.2d at 322.  Under section 429, the injured patient must show that the hospital held itself out to the public by providing services, that the patient looked to the hospital and not an individual doctor for care, and that a patient in similar circumstances would reasonably have believed that the physician was a hospital employee.  Id.  When the patient can demonstrate genuine issues of material fact exist as to these factors, “summary judgment is not appropriate.”  Id. at 323.

            In examining the caselaw cited by the district court and by Vanderford to support an absolute nondelegable duty, we conclude that these cases, while labeling their approaches as a nondelegable duty, actually require the same analysis as our ostensible agency approach in Schlotfeldt v. Charter Hospital of Las Vegas, 112 Nev. 42, 910 P.2d 271 (1996).  Once a “nondelegable” duty becomes nonabsolute, as described in Simmons II, the duty is no longer truly nondelegable.  See Simmons II, 533 S.E. 2d at 322.  As noted above, a nondelegable duty is a strict liability concept.  Thus, a “nondelegable” duty that is not absolute veers away from the concept of strict liability, and creates a duty that is not actually nondelegable.  A nonabsolute nondelegable duty is much closer to the ostensible agency approach and is not truly a nondelegable duty at all.  Based on the above, we conclude that the district court erred by imposing an absolute nondelegable duty on Renown.  However, we still must address the ostensible agency doctrine as a basis for holding hospitals liable for the acts of their independent contractor emergency room doctors.

Hospitals may be liable for the acts of their independent contractor doctors under the ostensible agency doctrine adopted in Schlotfeldt

            Given our prior holding in Schlotfeldt v. Charter Hospital of Las Vegas, where we adopted the ostensible agency doctrine, we conclude that Renown could be held liable under that theory.  112 Nev. 42, 48, 910 P.2d 271, 275 (1996).

            In Schlotfeldt, we considered the acts of an independent contractor doctor who attended to a patient at a drug and alcohol treatment center.  Id. at 43-44, 910 P.2d at 272.  The independent contractor doctor attended to Schlotfeldt at the request of a Charter Hospital psychiatrist who was busy with other patients.  Id.  Charter did not release Schlotfeldt, despite her requests to return home, because, based on the independent contractor doctor’s conclusions, she was a suicide risk and releasing her would be imprudent.  Id. at 44, 910 P.2d at 272.  The patient sued the treatment center for false imprisonment, and the district court instructed the jury that the treatment center was vicariously liable for the doctor’s acts because the treatment center chose the doctor to examine Schlotfeldt.  Id. at 46-47, 910 P.2d 274.  Charter opposed such an instruction because the existence of an agency relationship between Charter and the doctor was a question of fact for the jury.  Id. at 48, 910 P.2d at 275.

            We agreed with Charter.  Id. at 49, 910 P.2d at 275.  Consequently, we adopted an approach known as ostensible agency, which applies when a patient goes to the hospital and the hospital selects the doctor to treat the patient, such that it is reasonable for the patient to assume the doctor is an agent of the hospital.  Id. at 48, 910 P.2d at 275.  We identified typical fact questions that arise under ostensible agency, including: (1) whether the patient entrusted herself to the hospital, (2) whether the hospital selected the doctor, (3) whether the patient reasonably believed the doctor was an agent of the hospital, and (4) whether the patient had notice of the doctor’s independent contractor status.  Id. at 49, 910 P.2d at 275.  Whether a patient can demonstrate these factors remains a question for the jury.  Id. at 48-49, 910 P.2d at 275.

            Here, we see no compelling reason why Schlotfeldt should not apply to substantially similar factual scenarios that involve independent contractor emergency room doctors.  Like the patient in Schlotfeldt, Vanderford and Christopher entrusted themselves to Renown by going to its emergency room.  They did not choose a doctor for Christopher, but were subject to the choice by Renown, as is the case in most emergency room scenarios.  The remaining two questions, focusing on Vanderford’s reasonable beliefs and whether Vanderford had notice, are subject to the jury’s fact-finding but present a situation quite similar to the treatment center discussed in Schlotfeldt.  Public policy supports this decision as well because under an ostensible agency approach, hospitals may be liable for the malpractice of independent contractor emergency room physicians.  This theory allows tort victims recovery by demonstrating facts that are often present in an emergency room setting, while not judicially creating an absolute duty on hospitals that is better left to the Legislature to impose.

            Moreover, the typical questions of fact discussed in Schlotfeldt that make up the ostensible agency inquiry are similar to section 429 of the Restatement (Second) of Torts and the nonabsolute nondelegable duty adopted in Simmons II.  See Schlotfeldt, 112 Nev. at 49, 910 P.2d at 275.  The Simmons II approach presents an approach no different than the ostensible agency doctrine we articulated in Schlotfeldt.  Whether it is called a nonabsolute nondelegable duty or ostensible agency, the result remains the same: hospitals may be held liable for the acts of independent contractor emergency room doctors if the hospital selects the doctor and it is reasonable for the patient to assume that the doctor is an agent of the hospital.

CONCLUSION

            For the foregoing reasons, we conclude that hospitals do not have an absolute nondelegable duty to provide nonnegligent medical care to emergency room patients through doctors who are independent contractors.  However, we extend the ostensible agency doctrine of Schlotfeldt to emergency room scenarios.  We therefore conclude that Renown may be held liable for the acts of its independent contractor emergency room doctors under this approach.  Because the district court improperly imposed an absolute nondelegable duty on Renown, we reverse the decision of the district court insomuch as it imposed upon Renown a nondelegable duty to provide competent medical care to its emergency room patients through independent contractor doctors.

 

HARDESTY, DOUGLAS, and PICKERING, JJ., concur.

 

**********FOOTNOTES**********

[1]        We do not address whether this case supports a finding of ostensible agency because it involves unresolved questions of fact.

[2]        This legislative modification of the Jackson holding was recognized in Evans ex rel. Kutch v. State, 56 P.3d 1046, 1067 (Alaska 2002).

*****************************

CHERRY, J., with whom SAITTA and GIBBONS, JJ., agree, dissenting:

            I agree with the majority that Nevada law does not currently support the imposition of an absolute nondelegable duty upon hospitals to render competent services to its emergency room patients.  I also agree that the ostensible agency doctrine, previously discussed by this court in Schlotfeldt v. Charter Hospital of Las Vegas, 112 Nev. 42, 910 P.2d 271 (1996), provides a natural extension to the emergency room scenario contemplated here.  However, given the public policy considerations, I would adopt the nonabsolute nondelegable duty approach, as the Supreme Court of South Carolina decided in Simmons v. Tuomey Regional Medical Center (Simmons II), 533 S.E.2d 312 (S.C. 2000).

            Emergency room patients may base their decisions regarding care largely upon hospital advertising and the reputation of the hospital as an entity.  These patients do not seek out individual doctors, but expect the hospital to provide competent emergency room care.  Hospitals should not be able to escape liability for the malpractice of independent contractor emergency room doctors when hospitals hold themselves out to the public in this manner.  The Simmons II approach accounts for this commercialization of medicine and the “public perception of the unity of a hospital and its emergency room.”  Id. at 322.

            Further, some emergency room patients may be required to seek treatment at specific hospital emergency rooms due to contracts with their insurance carriers.  In creating a contractual relationship with insurance companies, hospitals limit patient choice and assure themselves a certain portion of emergency room business.

            For these reasons, I respectfully dissent.