Edgeworth Family Tr. v. Dist. Ct. (Simon) ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
EDGEWORTH FAMILY TRUST; AND No. 84159
AMERICAN GRATING, LLC,
Petitioners,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE SEP 1 6 2022
TIERRA DANIELLE JONES, DISTRICT EL I.Z..4t.'ETH A. BROWN
JUDGE, CLERK OF EV;PREME COURT
BY
Respondents, DEPUTY CLERK
and
DANIEL S. SIMON; AND THE LAW
OFFICE OF DANIEL S. SIMON,
Real Parties in Interest.
ORDER GRANTING PETITION IN PART AND DENYING PETITION IN
PART
This is an original petition for a writ of mandamus to release
client funds in excess of an adjudicated lien amount and to direct the real
parties in interest to release to petitioners their client file.
This petition stems from the ongoing dispute regarding real
party in interest Daniel Simon's fee for services he provided to petitioners
Edgeworth Family Trust and American Grating, LLC (collectively, the
Edgeworths) as part of the settlement of a products liability action. The
Edgeworths challenge two separate issues in their petition: (1) the district
court's decision to decline to release client funds being held in trust jointly
by the parties for the purpose of satisfying Simon's fee above the amount it
adjudicated during the pendency of appellate adjudication, and (2) the
SUPREME COURT
or
NEVADA
4(>) 1947A
district court's refusal to compel Simon to produce to the Edgeworths their
complete client file. The Edgeworths seek a writ of mandamus to compel
both acts.
We consider the Edgeworths' petition only with respect to the file production
issue
Writ relief is an extraordinary remedy appropriate when no
plain, speedy, or adequate legal remedy exists. See NRS 34.170. Generally,
we consider a party's ability to appeal from a final judgment an adequate
legal remedy that precludes writ relief. Pan u. Eighth Judicial Dist. Court,
120 Nev. 222, 225, 88 P.3d 840, 841 (2004). It is the petitioner's burden to
demonstrate that writ relief is appropriate, id. at 228, 88 P.3d at 844, and
it is within this court's sole discretion to decide whether to entertain a
petition for writ relief, Smith v. Eighth Judicial Dist. Court, 107 Nev. 674,
677, 818 P.2d 849, 851 (1991).
Having considered the petition and its supporting
documentation, as well as the answer and reply, we are not persuaded that
it is necessary to entertain the Edgeworths' petition with respect to the
district court's refusal to release a certain portion of the Edgeworths' client
funds being held jointly in trust. Namely, we are unpersuaded that no
adequate legal remedy exists to address the district court's decision.
Instead, we conclude the opposite is true in that pending a final decision
regarding the fee dispute matter and, after all appellate remedies are
exhausted, any funds not awarded to Simon will be disbursed to the
Edgeworths. Because the issue of Simon's appropriate fee is still being
litigated, and because the Edgeworths have not proffered any compelling
reason that access to those funds is presently needed, extraordinary
intervention is unwarranted.
SUPREME COURT
OF
NEVADA
2
(0) Lq47A
Regarding the second issue, we conclude that the Edgeworths'
have satisfactorily shown that an adequate legal remedy does not exist to
challenge the district court's refusal to compel Simon to produce their
complete client file and therefore choose to entertain their petition
regarding this issue. We previously dismissed the Edgeworths' appeal with
respect to the file production issue, concluding that the order in which the
district court denied production was not a final order from which an appeal
could be taken. See Edgeworth Farn. Tr. v. Simon, Nos. 83258/83260 (Nev.
Dec. 13, 2021) (Order Consolidating and Partially Dismissing Appeals).
Thus, no adequate legal remedy exists to address this issue. Further,
Simon's argument regarding the possibility of potential further motion
practice before the district court is unpersuasive in demonstrating that an
adequate legal remedy exists.
Therefore, we deny the Edgeworths' petition with respect to the
withholding of excess funds but entertain the petition regarding Simon's
production of the Edgeworths' complete client file, which we address next.
The district court erred in failing to require Simon to produce the complete
client file to the Edgeworths under NRS 7.055
This court may issue a writ of mandamus to correct or otherwise
tgcompel the performance of an act which the law especially enjoins as a duty
resulting from an office, trust, or station." NRS 34.160. Here, the district
court declined to compel Simon to produce the complete client file to the
Edgeworths, relying on a previous protection order the parties entered into
during discovery in the underlying products liability action.
The Edgeworths aver that the district court's reliance on the
protection order was erroneous because the protection order did not apply.
Namely, they assert that Simon and the Edgeworths were considered to be
the same party under the order and therefore production of the file from
SUPREME COURT
OF
NEVADA
3
(0) llA AD.
Simon to the Edgeworths was not subject to the order. Alternatively, and
not addressed by the district court, they argue that the district court had a
duty to produce to them their complete file after they appropriately made a
motion to the court under NRS 7.055.
In response, Simon argues that the district court properly
determined that the protection order applied to Simon and the Edgeworths
and that the Edgeworths were required to properly comply with the
agreement prior to Simon's duty to disclose. Alternatively, Simon rebuts
the Edgeworths' argument that NRS 7.055 required production by arguing
the prerequisite, that an attorney be paid before production becomes
compelled, has not been satisfied because he has not yet received actual
payment for his services.
Addressing the protective order argument first, after reviewing
the order and based on the totality of the circumstances, we conclude that
the order does not prevent Simon from disclosing any portion of the
Edgeworths' file, including those confidential portions subject to the order.
Specifically, at least to a certain extent, the order treats Simon and the
Edgeworths as being one-in-the-same as opposed to being separate parties.
We reject Simon's argument that he is "disclosing" confidential information
in contravention of the protection order. Thus, we conclude that the district
court's reliance on the protective order was erroneous.
We further conclude that the district court had a statutory duty
to compel Simon to produce to the Edgeworths their complete file after such
a demand was made under NRS 7.055. NRS 7.055(2) states:
A client who, after demand therefor and payment
of the fee due from the client, does not receive from
his or her discharged attorney all papers,
documents, pleadings and items of tangible
personal property may, by a motion filed after at
SUPREME COURT
OF
NEVADA
4
I947A
least 5 days' notice to the attorney, obtain an order
for the production of his or her papers, documents,
pleadings and other property.
To the extent Simon argues that the Edgeworths have not
complied with NRS 7.055(2)'s language that production is required only
"after.... payment of the fee due," we conclude that Simon reads the
requirement of payment too narrowly. Payment is defined as
"[p]erformance of an obligation by the delivery of money or some other
valuable thing accepted in partial or full discharge of the obligation."
Payment, Black's Law Dictionary (11th ed. 2019). Moreover, we have
previously construed the term broadly by considering the requirement
satisfied when a party, even without making an actual transfer of money,
provides sufficient security evidencing their intent to pay. See Figliuzzi v.
Eighth Judicial Dist. Court, 111 Nev. 338, 343, 890 P.2d 798, 801 (1995)
(stating a "district court's power is limited to ordering the attorney to return
papers upon the client's presentment of adequate security" (emphasis
added)). Here, Simon made a demand of $2 million in attorney fees. The
Edgeworths, although contesting the amount owed, placed $2 million of
their settlement proceeds into a trust account that is jointly managed by
themselves and Simon. Funds in the account can only be removed with
authorization by both Simon and the Edgeworths. Based on the foregoing
facts, we conclude that Simon was sufficiently secured that the Edgeworths
would pay and therefore the district court had a duty under NRS 7.055 to
compel Simon to produce to the Edgeworths their complete client file. Thus,
mandamus relief is available to correct the district court's failure to compel
Simon to produce the file. See NRS 34.160. Accordingly, we
ORDER the petition with respect to the release of the
Edgeworth's funds DENIED and the petition with respect to the production
SUPREME COURT
OF
NEVADA
5
(0) I947A
of the client file GRANTED AND DIRECT THE CLERK OF THIS COURT
TO ISSUE A WRIT OF mandamus instructing the district court to require
Simon to produce the complete client file to the Edgeworths.
J.
Hardesty
Stiglich
, J.
Herndon
cc: Hon. Tierra Danielle Jones, District Judge
Hon. Jerry A. Wiese, Chief Judge
Morris Law Group
James R. Christensen
Christiansen Trial Lawyers
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
6
(0) I 94 7A 44,S11.