Liberty Mut. v. Thomasson , 2014 NV 4 ( 2014 )

130 Nev., Advance Opinion 14
IN THE SUPREME COURT OF THE STATE OF NEVADA
LIBERTY MUTUAL; AND CARSON No. 59176
CITY SENIOR CITIZENS CENTER,
Appellants/Cross-Respondents, FILED
vs.
ROBERT THOMASSON, FEB 0 6 2014
Respondent/Cross-Appellant. TRAX!E XAINDEMA
CLERWF
BY
HUFF DEPUTY CLERK
Appeal and cross-appeal from a district court order
transferring venue of a petition for judicial review in a workers'
compensation matter. Second Judicial District Court, Washoe County;
Patrick Flanagan, Judge.
Vacated and remanded.
Piscevich & Fenner and Kimberley Fenner and Mark J. Lenz, Reno,
for Appellants/Cross-Respondents.
Nevada Attorney for Injured Workers and W. Darrell Nedd, Senior
Deputy, Carson City,
for Respondent/Cross-Appellant.
BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.
OPINION
By the Court, PARRAGUIRRE, J.:
Appellant/cross-respondent Liberty Mutual filed a petition for
judicial review in the Second Judicial District Court in Washoe County,
challenging an appeals officer's decision that reversed Liberty Mutual's
denial of respondent/cross-appellant Robert Thomasson's workers'
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compensation claim. Thomasson filed a motion to dismiss, alleging that
Liberty Mutual could not file its petition in the Second Judicial District
because it was not a resident of Washoe County. Liberty Mutual opposed,
seeking either consideration on the merits or a transfer of venue. The
Second Judicial District Court transferred venue. NRS 233B.130(2)(b)
provides that a petition for judicial review of an agency determination
must be filed in Carson City, the aggrieved party's county of residence, or
the county where the agency proceeding occurred. We conclude that NRS
233B.130(2)(b) is a mandatory jurisdictional requirement and that
because Liberty Mutual is not a resident of Washoe County, the Second
Judicial District Court lacked jurisdiction to consider its petition for
judicial review and should have dismissed it rather than transfer venue.
We accordingly vacate the district court's order transferring venue and
remand this matter to the district court with directions to dismiss Liberty
Mutual's petition for judicial review.
FACTUAL AND PROCEDURAL HISTORY
Carson City Senior Citizens Center employed Thomasson to
deliver meals to elderly persons in Carson City. In May 2010, Thomasson
slipped down a flight of stairs while delivering a meal and injured his
knee. Thomasson filed a workers' compensation claim for the injury, but
Liberty Mutual, his employer's workers' compensation insurer, found that
the injury did not occur within the scope of Thomasson's employment and
denied the claim. Thomasson administratively appealed, and although
the Department of Administration hearing officer affirmed Liberty
Mutual's decision, the appeals officer reversed the claim denial.' Liberty
'The administrative appeal was heard in Carson City.
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Mutual then filed a petition for judicial review in the Second Judicial
District Court in Washoe County.
Thomasson filed a motion to dismiss Liberty Mutual's petition
on the ground that it did not comply with NRS 233B.130(2)(b).
Thomasson argued that NRS 233B.130(2)(b) is a jurisdictional statute that
specifically sets forth the courts in which a petition for judicial review may
be filed, and because Liberty Mutual is not a resident of Washoe County,
the petition did not comply with the statutory residency requirement. In
opposition, Liberty Mutual argued that since it has an office in Reno,
venue was proper and, in the alternative, the motion to dismiss should be
treated as a motion to transfer venue. The district court agreed with
Thomasson that filing the petition in the Second Judicial District Court
was improper, but the court granted Liberty Mutual's request to treat the
motion to dismiss as a motion to transfer venue. Accordingly, the district
court ordered that the case be transferred to the First Judicial District
Court in Carson City. The parties now bring this appeal and cross-appeal.
DISCUSSION
In addressing the district court's order transferring venue, we
must first consider the threshold issue of jurisdiction raised by
Thomasson's cross-appeal. We conclude that NRS 233B.130(2)(b) is
mandatory and jurisdictional and that because Liberty Mutual is not a
resident of Washoe County, the petition failed to satisfy the jurisdictional
burden imposed by NRS 233B.130(2)(b). As a result, the Second Judicial
District Court lacked jurisdiction over the matter. Furthermore, because
NRS 233B.130(2)(c) provides that the petition must be brought within 30
days and that time period has passed, Liberty Mutual cannot amend or
refile its petition to correct the deficiency. We therefore vacate the district
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court's order transferring venue and remand the matter to the district
court with directions to dismiss the petition for lack of jurisdiction. 2
NRS 233B.130(2)(b) is mandatory and jurisdictional
Thomasson argues that NRS 233B.130(2)(b) sets forth a
mandatory jurisdictional requirement, and because Washoe County was
the incorrect location for Liberty Mutual to file its petition for judicial
review, the Second Judicial District Court did not have jurisdiction to
consider the petition. Furthermore, Thomasson asserts that the time
frame for filing the petition in NRS 233B.130(2)(c) has lapsed, and thus
Liberty Mutual cannot now correct its error. Whether NRS 233B.130(2)(b)
establishes a jurisdictional requirement or a venue requirement is a
matter of first impression in Nevada.
We review questions of law, such as statutory interpretation,
de novo. Washoe Cnty. v. Otto, 128 Nev. „ 282 P.3d 719, 724 (2012).
Nevada's Administrative Procedure Act (APA), codified at NRS Chapter
233B, sets forth the procedure for judicial review of agency decisions. At
issue in this appeal is one of three filing requirements delineated in NRS
233B.130(2), which provides:
Petitions for judicial review must:
(a) Name as respondents the agency and all
parties of record to the administrative proceeding;
2Liberty Mutual previously filed a motion to dismiss Thomasson's
cross-appeal, arguing that this court lacks jurisdiction to hear it. In an
unpublished order, we denied the motion Liberty Mutual renews this
jurisdictional argument in its briefs; as we conclude that Liberty Mutual's
arguments in this regard are unpersuasive, we consider Thomasson's
cross-appeal on its merits.
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(b) Be instituted by filing a petition in the
district court in and for Carson City, in and for the
county in which the aggrieved party resides or in
and for the county where the agency proceeding
occurred; and
(c) Be filed within 30 days after service of
the final decision of the agency.
(Emphases added.) We have previously construed NRS 233B.130(2)(a)
and (c) to be mandatory jurisdictional requirements, but we have not
before addressed NRS 233B.130(2)(b). See Otto, 128 Nev. at , 282 P.3d
at 725 (construing paragraph (a)); Civil Serv. Comm'n v. Second Judicial
Dist. Court, 118 Nev. 186, 189, 42 P.3d 268, 271 (2002) (addressing
paragraph (c)). 3
Otto provides a straightforward answer to the question raised
in this appeal. There, this court held that paragraph (a) is mandatory and
jurisdictional, and we stated that nothing in NRS 233B.130(2)'s plain
language "suggests that its requirements are anything but mandatory and
jurisdictional." 128 Nev. at , 282 P.3d at 725. We explained that the
word "must," which precedes paragraphs (a) through (c), imposes a
mandatory requirement, that this court previously held that the
requirements of paragraph (c) are mandatory and jurisdictional, see Civil
Serv. Comm'n, 118 Nev. at 189, 42 P.3d at 271, and that there is no reason
3 In Civil Service Commission, this court held that despite NRS
233B.130(2)(a) being mandatory and jurisdictional, failure to comply with
that provision does not preclude judicial review. 118 Nev. at 189-90, 42
P.3d at 271. In Otto, we overruled that portion of the holding and held
that failure to comply with either NRS 233B.130(2)(a) or (c) deprives the
district court of jurisdiction to consider the petition for judicial review.
128 Nev. at n.9, 282 P.3d at 725 n.9.
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to construe paragraph (a) differently than paragraph (c). Otto, 128 Nev. at
, 282 P.3d at 725.
Despite this precedent, Liberty Mutual argues that this court
has read similar language in another statute as imposing a venue
requirement, not a mandatory jurisdictional requirement. In In re Nevada
State Engineer Ruling No. 5823, we interpreted a forum clause in NRS
Chapter 533 as imposing a venue requirement, not a mandatory
jurisdictional requirement. 128 Nev. „ 277 P.3d 449, 457 (2012).
NRS 533.450(1) provides that a party seeking judicial review of a water
rights decision by the State Engineer "must be initiated in the proper
court of the county in which the matters affected or a portion thereof are
situated." Noting that the forum language of NRS 533.450(1) "speaks the
language of venue," we held that the forum clause addressed venue, not
jurisdiction. In re Nev. State Eng'r Ruling No. 5823, 128 Nev. at , 277
P.3d at 457.
Although the forum language of NRS 533.450(1) is
superficially similar to the APA, NRS Chapter 533 is a separate statutory
scheme, and we have consistently held that the APA has strict
jurisdictional requirements for judicial review of agency decisions. Crane
v. Cord? Tel. Co. of Cal., 105 Nev. 399, 401, 775 P.2d 705, 706 (1989)
(holding that "lclourts have no inherent appellate jurisdiction over official
acts of administrative agencies except where the [L]egislature has made
some statutory provision for judicial review," and such procedures are
therefore controlling). Thus, when seeking judicial review of an
administrative decision pursuant to the APA, the petitioner must
challenge that decision according to the APA's specific procedures in order
to invoke the district court's jurisdiction. Otto, 128 Nev. at , 282 P.3d
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at 725. Therefore, a party must strictly comply with the APA's
jurisdictional requirements, and "'hi] oncompliance with the requirements
is grounds for dismissal." Id. (quoting Kame v. Emp't Sec. Dep't, 105 Nev.
22, 25, 769 P.2d 66, 68 (1989)).
Accordingly, In re Nevada State Engineer Ruling No. 5823
does not provide useful guidance in interpreting whether NRS
233B.130(2)(b) is jurisdictional. Instead, we agree with Thomasson that
Otto directly applies to the issue on appeal and conclude that NRS
233B.130(2)(b) is mandatory and jurisdictional. Thus, failure to strictly
comply with NRS 233B.130(2)(b) requires dismissa1. 4
Liberty Mutual is not a resident of Washoe County under NRS
233B.130(2)(b)
In order for its petition for judicial review, filed in the Second
Judicial District Court, to comply with NRS 233B.130(2)(b), Liberty
Mutual must be a resident of Washoe County. The district court
determined that Liberty Mutual was not a resident of Washoe County, and
we now address Liberty Mutual's argument that the district court erred in
4Although the language of NRS 233B.130(2)(b) is clear, it is within
the Legislature's power to amend the provision if it no longer intends the
provision to provide a mandatory jurisdictional requirement. See Berkson
v. LePome, 126 Nev. „ 245 P.3d 560, 568 (2010) (leaving alterations
of unambiguous statutes of limitations to the Legislature); see also State ex
rel. Dir. of Revenue v. Gaertner, 32 S.W.3d 564, 567 (Mo. 2000) (explaining
that after the court held that where a statute requires an appeal from an
administrative decision to be filed in a certain court, that court alone has
jurisdiction to entertain the appeal, the Missouri Legislature amended its
venue statute to grant a limited jurisdiction to the court to transfer any
case filed in an improper venue to a court otherwise designated by the
Legislature to hear the appeal).
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making this determination because it has an office in Reno. The term
"resides," as used in NRS 233B.130(2)(b), is not defined, and its definition
in this context is an issue of first impression.
We review questions of statutory interpretation de novo and
do not look beyond a statute itself to determine its meaning where the
statute is unambiguous. Otto, 128 Nev. at , 282 P.3d at 724-25.
"[WI here a statute has no plain meaning, a court should consult other
sources such as legislative history, legislative intent and analogous
statutory provisions." State, Div. of Ins. v. State Farm Mitt. Auto. Ins. Co.,
116 Nev. 290, 294, 995 P.2d 482, 485 (2000).
Liberty Mutual argues that although its headquarters are in
Boston, it has an office in Reno and therefore qualifies as a resident of
Washoe County. Thomasson argues that a foreign corporation can never
have a fixed residence in any particular county in Nevada for purposes of
NRS 233B.130(2)(b).
The meaning of the word "reside," or "residence" in the context
of corporations, provides little guidance. On one hand, "residence" is
defined as "the place of the principal office of a corporation or business
concern designated in its articles of incorporation or originally registered
in accordance with law," Webster's Third New International Dictionary
1931 (3d ed. 1976), which appears consistent with Thomasson's
interpretation that a corporation's residence is the location of its principal
place of business. On the other hand, "residence" is also defined as "[Ole
place where a corporation or other enterprise does business or is
registered to do business," Black's Law Dictionary 1423 (9th ed. 2009),
which appears consistent with Liberty Mutual's proffered interpretation.
We conclude that both definitions are reasonable, and thus the term
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"resides" as used in NRS 233B.130(2)(b) is ambiguous. Accordingly, we
consult other sources, including cases interpreting similar language in
analogous statutory provisions, to determine the Legislature's intent. See
State Farm Mitt. Auto. Ins. Co., 116 Nev. at 294, 995 P.2d at 485 (stating
that this court may look to analogous statutory provisions in interpreting
an ambiguous statute).
Though we have concluded that this is a jurisdictional issue
and not one of venue, it is nonetheless the venue statutes that act as a
guide to defining a corporate residence, as the term "resides" as used in
NRS 233B.130(2)(b) has never been defined. This court has previously
addressed where a corporation's residence is for purpose of serving process
upon the company. Flournoy v. McKinnon Ford Sales, 90 Nev. 119, 122,
520 P.2d 600, 602 (1974) (agreeing with other courts that "the designation
in the articles of incorporation of the principal place of business [is]
conclusive" as to the corporation's place of residence, reasoning that
uniformity was needed as a way to fix a corporation's location of residence
so all interested parties would know where to serve process). We conclude
that the logic of Flournoy is applicable here and hold that, for purposes of
NRS 233B.130(2)(b), a corporation's place of residence is that which is
listed as the principal place of business in its articles of incorporation. Cf.
In re Nevada State Eng'r Ruling No. 5823, 128 Nev. at , 277 P.3d at
457 (noting that although judicial review under NRS 533.450(1) is in the
nature of an appeal, NRS Chapter 13's application to the place of trial
does not defeat its application on judicial review as well).
Further, under NRS Chapter 13, a foreign corporation does
not have a fixed residence in any particular county. See NRS 13.040; W.
Pac. R.R. Co. v. Krom, 102 Nev. 40, 43, 714 P.2d 182, 184 (1986)
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(explaining that merely doing business in Nevada does not fix a foreign
corporation's residence in any particular county for venue purposes (citing
Byers v. Graton, 82 Nev. 92, 95, 411 P.2d 480, 481 (1966))). In adopting
the application of the term "residence" as used in NRS Chapter 13 in
interpreting "reside" as used in NRS 233B.130(2)(b), we conclude that a
foreign corporation cannot have a fixed residence in any Nevada county,
and thus Washoe County was not the proper county for Liberty Mutual to
seek judicial review even if it had a satellite office there.
We note, however, that while a foreign corporation cannot
have fixed residency in a particular Nevada county for purposes of NRS
233B.130(2)(b), this does not necessarily preclude judicial review because
the statute allows an aggrieved party to seek judicial review of an agency
decision in other locations, namely Carson City or the county where the
agency proceeding occurred (which is Carson City in this case). Thus, our
interpretation of "resides" for purposes of this statute would not have left
Liberty Mutual without remedy.
It is undisputed that Liberty Mutual is a foreign corporation
headquartered in Boston. Adopting the meaning of "residence" under NRS
Chapter 13 and Flournoy, we conclude that Liberty Mutual has not
complied with NRS 233B.130(2)(b)'s mandatory jurisdictional requirement
of filing its petition for judicial review in either Carson City, the county in
which it resides, or the county in which the administrative proceedings
took place. Furthermore, the 30-day period for filing such a petition in the
proper county has passed, and thus the petition cannot be amended to
correct the error. NRS 233B.130(2)(c); Otto, 128 Nev. at , 282 P.3d at
727. Accordingly, we vacate the district court's order transferring venue
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and remand this matter to the district court with directions to dismiss the
petition for judicial review for lack of jurisdiction.
yfl
J.
Parraguirre
We concur:
J.
Hardesty
Ckt
Cherry
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