Slezak v. Cory ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
JAMES J. SLEZAK; NATHAN No. 65428
EVERSON; AND TOUSON SARYON;
Appellants,
vs.
FILED
TIMOTHY S. CORY,
JUL 2 8 2016
Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a district court order'granting
summary judgment in a tort action. Eighth Judicial District Court, Clark
County; Susan Johnson, Judge.
BACKGROUND
This case arose from a proceeding wherein the district court
appointed respondent Timothy Cory as receiver of defendants Global Edge
Trading, LLC (GET) and The Private FX Trade Club, LLC (PTC). The
order appointing Cory as receiver required Cory to immediately take
control of all rights, interests, assets, and financial accounts of GET and
PTC. Nonetheless, Cory decided not to be named on the accounts until
GET was up and running.
After Cory was appointed as receiver, the managing member
of GET, Francis Conlin, secured hundreds of thousands in loans from
appellants James Slezak, Nathan Everson, and Touson Saryon for the
purpose of operating GET. After Conlin signed for the loans, appellants
wired the funds to GET's Bank of America account, one of the accounts
Cory was ordered to oversee.
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Appellants later discovered that Conlin spent over $2 million
of GET funds at casinos and strip clubs, including their investments.
Bank statements showed that Conlin made numerous, large cash
withdrawals from various casino ATMs.
Consequently, appellants filed a complaint against Cory
alleging: 1) breach of fiduciary duty, 2) negligence, 3) interference with
contractual relations, and 4) civil conspiracy. The gravamen of the
complaint was that Cory failed to properly monitor the bank accounts,
thereby breaching his receivership duties. Cory filed a NRCP 12(b)(5)
motion to dismiss, which the district court converted to a NRCP 56 motion
for summary judgment and granted, explaining that pursuant to Anes V.
Crown P'ship, Inc., 113 Nev. 195, 932 P.2d 1067 (1997), Cory was immune
from suit.
DISCUSSION
An order granting summary judgment is reviewed de novo.
Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005).
Summary judgment should be rendered when the pleadings and other
evidence on file demonstrate that there is no genuine issue of material fact
and the moving party is entitled to judgment as a matter of law. Id.
Appellants argue that Cory was not entitled to immunity
because he failed to take control of the Global Edge assets and bank
accounts as ordered by the court. Cory contends that he is absolutely
immune from suit as a receiver of the court pursuant to Anes.
Under Anes, "[a] receiver appointed by the court acts as an
officer of the court." 113 Nev. at 201, 932 P.2d at 1071. "A receiver who
faithfully and carefully carries out the orders of the appointing judge
shares the judge's judicial immunity." Id. (internal quotations omitted).
However, "a receiver may be personally liable if he or she acts outside the
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authority granted by the court." Id. at 202, 932 P.2d at 1071. For
instance, in Aries, we determined that a factual question as to whether a
receiver exceeded his authority precluded summary judgment. Id. But
Aries does not cover the broader breadth of immunity that we extend
generally to professionals acting as an arm of the court in judicial
proceedings.
In Duff v. Lewis, this court applied absolute immunity to a
court-appointed psychologist accused of negligence in making a child
custody recommendation amidst allegations of child abuse. 114 Nev. 564,
571, 958 P.2d 82, 87 (1998). Similarly, in Foster v. Washoe County, this
court granted absolute immunity to court-appointed special advocates
sued for negligent investigation of child abuse. 114 Nev. 936, 943-44, 964
P.2d 788, 793 (1998). Most recently, in Harrison v. Roitman, we upheld a
district court's ruling granting absolute immunity to a party-retained
psychiatrist, who was accused of medical malpractice for submitting a
report to the court during divorce proceedings diagnosing the wife with a
personality disorder without ever meeting her. 131 Nev., Adv. Op. 92, 362
P.3d 1138, 1144 (2015). To reach our conclusion, we recognized the long
history of precedent in state and federal courts extending absolute
immunity to judicial participants who act as an arm of the court. Id. at
1140.
Cory was a judicial participant appointed by the court and
accused of neglecting his responsibilities as a receiver. Cory was not,
however, accused of acting outside his authority.' As such, he is entitled
'We reject appellants' argument that by not acting at all, Cory
somehow acted outside of his authority.
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to the same absolute immunity extended to the judicial participants in
Duff, Foster, and Harrison. Thus, no genuine issue of material fact
remains. 2
We ORDER the judgment of the district court AFFIRMED.
J.
, J.
, J.
Gibbons
2 Appellants also argue that the district court erred by failing to
provide notice that the motion to dismiss would be treated as a motion for
summary judgment. We conclude that even if the district court had not
converted Cory's NRCP 12(b)(5) motion to dismiss into a NRCP 56 motion
for summary judgment, dismissal would have been appropriate pursuant
to NRCP 12(b)(5) because Cory is entitled to absolute immunity as a
matter of law. See Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224,
228, 181 P.3d 670, 672 (2008) (noting that a complaint should be dismissed
if a plaintiff can prove "no set of facts, which, if true, would entitle it to
relief'). Thus, despite the district court's error, it reached the correct
result, and we affirm See NRCP 61 (providing that no error in any ruling
or omission is grounds for disturbing a judgment if a party's substantial
rights are not affected).
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cc: Hon. Susan Johnson, Judge
Paul H. Schofield, Settlement Judge
Mirch Law Firm LLP
Premier Legal Group
Eighth District Court Clerk
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