Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Justice Hardesty.
In this original petition for a writ of mandamus or prohibition challenging the district court’s order dismissing a divorce complaint, the Court considered whether Petitioner’s failure to appeal the dismissal order precluded writ relief in the matter. Petitioner and Real Party in Interest were married in 2008; a newly elected judge who had taken his oath of office but was not authorized to take office until two weeks later performed the marriage ceremony. Three years later, Petitioner filed for divorce from the Real Party in Interest, seeking custody of the couple’s minor child. At the divorce hearing, the district court sua sponte raised the issue of whether the newly elected judge had authority to solemnize the marriage. The court concluded the judge did not have such authority and thus ruled the parties were not legally married, dismissing the divorce complaint as moot. Although proceedings to determine custody of the parties’ child continued in a separate custody case after the district court entered the dismissal order, Petitioner did not appeal the dismissal order and failed to seek any other relief until a year later, when she sought writ relief from the Nevada Supreme Court. The Nevada Supreme Court, in noting the long-held rule that the right to appeal is an adequate legal remedy precluding consideration of a writ appeal, rejected Petitioner’s argument that the dismissal order was not appealable as a valid, final judgment because the district court had reached an erroneous legal conclusion. Although the Nevada Supreme Court noted that the district court’s conclusion may have been in error, it affirmed that an incorrect legal conclusion does not render a judgment invalid or void, and so the district court’s dismissal order was a valid, final judgment. Petitioner had an adequate legal remedy by appealing the dismissal order. Because she failed to do so, writ relief was no longer available to her. Writ denied. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP.)
Thursday, August 29, 2013
Thursday, August 1, 2013
Khan v. Bakhsh, 129 Nev. Adv. Op. 57 (Aug. 1, 2013)
Before Justices Hardesty, Parraguirre, and Cherry. Opinion by Justice Cherry.
In this appeal from judgment after a bench trial, the Court considered several evidentiary issues dealing with contracts for the sale of real property. First, the Court addressed whether evidence of the terms of an agreement for the sale of property that was written but had been lost or destroyed could be considered without violating the statute of frauds. The Court held that evidence of the existence and terms of the agreement should have been admitted because the statute of frauds was satisfied by the original writing even if that writing was lost or destroyed before trial. Second, the Court addressed the argument that the parol evidence rule barred testimony regarding the fraud used to induce an agreement and testimony regarding the existence of the lost or destroyed agreement. The Court determined that the parol evidence rule does not bar consideration of evidence regarding fraud in the inducement of a contract, to establish subsequent alteration of a contract, or to prove the existence or terms of a written but lost or destroyed agreement. Finally, the Court determined that a liquidated damages provision requiring payment of “150% of actual damages” was an unenforceable penalty. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
In this appeal from judgment after a bench trial, the Court considered several evidentiary issues dealing with contracts for the sale of real property. First, the Court addressed whether evidence of the terms of an agreement for the sale of property that was written but had been lost or destroyed could be considered without violating the statute of frauds. The Court held that evidence of the existence and terms of the agreement should have been admitted because the statute of frauds was satisfied by the original writing even if that writing was lost or destroyed before trial. Second, the Court addressed the argument that the parol evidence rule barred testimony regarding the fraud used to induce an agreement and testimony regarding the existence of the lost or destroyed agreement. The Court determined that the parol evidence rule does not bar consideration of evidence regarding fraud in the inducement of a contract, to establish subsequent alteration of a contract, or to prove the existence or terms of a written but lost or destroyed agreement. Finally, the Court determined that a liquidated damages provision requiring payment of “150% of actual damages” was an unenforceable penalty. Reversed and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)
Moon v. McDonald, Carano & Wilson, L.L.P., 129 Nev. Adv. Op. 56 (Aug. 1, 2013)
Before Chief Justice Pickering and Justices Hardesty and Saitta. Opinion by Justice Hardesty.
In this appeal, the Court considered whether an attorney’s alleged negligence in representing a creditor in the non-adversarial parts of a bankruptcy proceeding constitutes litigation malpractice causing the Hewitt v. Allen, 118 Nev. 216, 43 P.3d 345 (2002) rule to toll the statute of limitations for a professional malpractice claim. Generally a claim for professional malpractice against a lawyer must be brought within two years of discovery of the cause of action. The litigation tolling rule set forth in Hewitt provides that the statutory limitation period for a claim of legal malpractice involving the representation of a client during litigation does not commence until the underlying litigation is concluded. Thus, in the context of litigation malpractice, damages do not begin to accrue until the underlying legal action has been resolved, and the malpractice action does not accrue while an appeal from the adverse ruling is pending. Whether the Hewitt rule applied to bankruptcy proceedings was a question of first impression for Nevada. Relying on the reasoning in an Arizona case, Cannon v. Hirsch Law Office, P.C., 213 P.3d 320 (Ariz. Ct. App. 2009), the Court held that because no complaint was filed in the bankruptcy proceeding, by definition, the proceedings were non-adversarial, did not occur in the “course of litigation,” and did not cause the Hewitt litigation tolling rule to apply. Accordingly, the Court found that the district court was correct in granting the attorney’s motion to dismiss pursuant to the discovery rule articulated in NRS 11.207(1). In addition, the Court held that because it was undisputed by the parties that the attorney only represented appellants in the bankruptcy action from July 2002 to February 2003, any professional malpractice claim would therefore not be tolled by the litigation malpractice tolling rule after February 2003, even if the Court were to conclude that the bankruptcy proceeding in this case qualified as litigation. Affirmed. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Court considered whether an attorney’s alleged negligence in representing a creditor in the non-adversarial parts of a bankruptcy proceeding constitutes litigation malpractice causing the Hewitt v. Allen, 118 Nev. 216, 43 P.3d 345 (2002) rule to toll the statute of limitations for a professional malpractice claim. Generally a claim for professional malpractice against a lawyer must be brought within two years of discovery of the cause of action. The litigation tolling rule set forth in Hewitt provides that the statutory limitation period for a claim of legal malpractice involving the representation of a client during litigation does not commence until the underlying litigation is concluded. Thus, in the context of litigation malpractice, damages do not begin to accrue until the underlying legal action has been resolved, and the malpractice action does not accrue while an appeal from the adverse ruling is pending. Whether the Hewitt rule applied to bankruptcy proceedings was a question of first impression for Nevada. Relying on the reasoning in an Arizona case, Cannon v. Hirsch Law Office, P.C., 213 P.3d 320 (Ariz. Ct. App. 2009), the Court held that because no complaint was filed in the bankruptcy proceeding, by definition, the proceedings were non-adversarial, did not occur in the “course of litigation,” and did not cause the Hewitt litigation tolling rule to apply. Accordingly, the Court found that the district court was correct in granting the attorney’s motion to dismiss pursuant to the discovery rule articulated in NRS 11.207(1). In addition, the Court held that because it was undisputed by the parties that the attorney only represented appellants in the bankruptcy action from July 2002 to February 2003, any professional malpractice claim would therefore not be tolled by the litigation malpractice tolling rule after February 2003, even if the Court were to conclude that the bankruptcy proceeding in this case qualified as litigation. Affirmed. (Amanda C. Yen, Associate in the Las Vegas office of McDonald Carano Wilson.)
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