Fasano v. Huff ( 2013 )

 Commission declined to take action against the judge, appellants filed the
underlying lawsuit alleging various tort causes of action. All respondents
moved to dismiss appellants' complaint, and the district court granted the
motions to dismiss and awarded costs and attorney fees to the
Commission. Appellants appeal.
"A district court order granting an NRCP 12(b)(5) motion to
dismiss is subject to rigorous appellate review." Sanchez ex rel. Sanchez v.
Wal-Mart Stores, Inc., 125 Nev. 818, 823, 221 P.3d 1276, 1280 (2009).
When reviewing a motion to dismiss, this court accepts the factual
allegations in the complaint as true and draws reasonable inferences in
favor of the plaintiffs, "but the allegations must be legally sufficient to
constitute the elements of the claim asserted." Id.Parties cannot collaterally attack the conduct of judges in one
action by filing a separate action; the judge is immune from suit. Bradley
v. Fisher, 80 U.S. (13 Wall.) 335, 346-47 (1871); Duff v. Lewis, 114 Nev.
564, 568-69, 958 P.2d 82, 85 (1998). Judicial immunity also applies to the
Commission when it acts in furtherance of its official functions. NRS
1.465; Whitehead v. Nev. Comm'n on Judicial Discipline, 110 Nev. 128,
159-60, 906 P.2d 230, 249-50 (1994); see also Butz v. Economou, 438 U.S.
478, 511-12 (1978); Salman v. Nev. Comm'n on Judicial Discipline, 104 F.
Supp. 2d 1262, 1267 (2000). Thus, we conclude that Judges Huff and
Aberasturi and the Commission are immune from suit and were properly
dismissed from this case.
As to the respondent attorneys and law firms, appellants
failed to state a claim against them. The Nevada Rules of Professional
Conduct (NRPC) do not provide a duty of disclosure of campaign
contributions to opposing parties or a private right of action against
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attorneys for alleged violations of the professional conduct rules. NRPC
1.0A(d); NRPC 3.3-3.4; Mainor v. Nault, 120 Nev. 750, 768-69, 101 P.3d
308, 320-21 (2004). Moreover, appellants' tort and fraud claims are based
solely on unspecified campaign contributions and do not adequately state
a claim for the relief sought by appellants.' See NRCP 9(b) (requiring
allegations of fraud be pleaded with specificity); Lugar v. Edmondson Oil
Co., 457 U.S. 922, 928 (1982) (requiring state action for claims asserting
violations of 42 U.S.C. § 1983); Hilton Hotels Corp. V. Butch Lewis Prods.,
Inc., 109 Nev. 1043, 1048, 862 P.2d 1207, 1210 (1993) (setting forth the
elements of intentional interference with contract claims); Barmettler v.
Reno Air, Inc., 114 Nev. 441, 447, 956 P.2d 1382, 1386 (1998) (requiring
extreme and outrageous conduct for intentional infliction of emotional
distress and a false misrepresentation for fraudulent misrepresentation);
Dow Chem. Co. v. Mahlum, 114 Nev. 1468, 1486, 970 P.2d 98, 110 (1998)
(requiring a duty to disclose for fraudulent concealment); Jordan v. State
ex rel. Dep't of Motor Vehicles & Pub. Safety, 121 Nev. 44, 75, 110 P.3d 30,
51 (2005) (requiring an underlying fraud as a predicate to conspiracy to
commit fraud), abrogated on other grounds by Buzz Stew, LLC v. City of N.
'According to the respondent attorneys and law firms, they made
campaign contributions of approximately $250 to the respondent judges.
Such contributions are not excessive and did not require disqualification.
Ivey v. Eighth Judicial Dist. Court, 129 Nev. , 299 P.3d 354 (2013)
(addressing Caperton v. A.T. Massey Coal Co., 556 U.S. 868 (2009)); see
also City of Las Vegas v. Eighth Judicial Dist. Court, 116 Nev. 640, 644-
45, 5 P.3d 1059, 1062 (2000) (holding that campaign contributions in a
state that elects its judges are a necessary blight and may not be allowed
to unduly inhibit the function of the judiciary, and "a contribution to a
presiding judge by a party or an attorney does not ordinarily constitute
grounds for disqualification").
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Las Vegas, 124 Nev. 224, 181 P.3d 670 (2008). Thus, appellants have
failed to demonstrate that the attorneys' failure to disclose campaign
contributions to Judges Huff or Aberasturi may form the basis of a
collateral tort action and, therefore, the district court properly dismissed
the causes of action against the attorneys and law firms.
With regard to appellant's motion to amend the complaint,
such a motion is addressed to the district court's discretion and, in light of
the above discussion, we perceive no abuse of discretion in the district
court's denial of appellants' motion to amend their complaint. State, Univ.
& Cmty. Coll. Sys. v. Sutton, 120 Nev. 972, 988, 103 P.3d 8, 19 (2004).
With regard to the attorney fees and costs award to the Commission, NRS
18.010(2)(b) permits an award of attorney fees to the prevailing party to
punish and deter frivolous or vexatious claims, and NRS 18.020 permits
an award of costs to the prevailing party. Having reviewed appellants'
arguments and the record, we conclude that the district court acted within
its discretion when awarding attorney fees and costs. Thomas v. City of N.
Las Vegas, 122 Nev. 82, 95, 127 P.3d 1057, 1066 (2006); Schwartz v. Estate
of Greenspun, 110 Nev. 1042, 1050, 881 P.2d 638, 643 (1994). Accordingly,
we
ORDER the judgment of the district court AFFIRMED.
, J.
Hardesty
Parraguirre
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cc: Chief Judge, the Tenth Judicial District
Hon. Robert E. Rose, Senior Justice
Rebecca Lynn Fasano
Timothy Fasano
Kravitz, Schnitzer, Sloane & Johnson, Chtd.
Attorney General/Carson City
James F. Sloan
Woodburn & Wedge
Lemons, Grundy & Eisenberg
Churchill County Clerk
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