State Farm Fire and Casualty Co. v. Ansara ( 2013 )

 "[t]his court's duty is not to render advisory opinions but, rather, to resolve
actual controversies by an enforceable judgment"). As a result, this court
ordered the parties to show cause why Docket No. 60157 should not be
dismissed as moot. Both parties have filed responses as directed.
In its response, appellant/cross-respondent State Farm Fire
and Casualty Company contends that Docket No. 60157 continues to
present a live controversy with regard to whether the district court
properly entered the preliminary injunction restraining State Farm from
conducting a second examination under oath of the insured, Nancy Quon. 1
In particular, State Farm argues that a resolution of whether the
injunction was proper may be determinative of whether it will ultimately
deny Quon's insurance claim on the ground that she failed to comply with
the express terms of her insurance policy. Respondent/cross-appellant
Robert Ansara, on the other hand, argues not only that the preliminary
injunction issue in Docket No. 60157 is moot, but also that the death of
Quon rendered all of the issues in both appeals moot, with the exception Of
the propriety of the district court's decision finding that State Farm was
entitled to the $10,000 bond posted by Quon for the preliminary
injunction.
Having considered the parties' responses, we conclude that
Ansara's argument is correct. The order on appeal in Docket No. 60157
did four things. First, it granted partial summary judgment to the insured
Quon to the extent that the court found that appellant/cross-respondent
State Farm Fire and Casualty Company was required to produce its claim
'Quon was the plaintiff in the action below. Respondent/cross-
appellant Robert Ansara was substituted in place of Quon after she died
while the proceedings were pending.
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file related to Quon's claim. Second, it extended a previously imposed
preliminary injunction until State Farm produced the file. Third, it
ordered that State Farm was entitled to recover damages up to the
amount of the $10,000 bond posted by Quon for the preliminary
injunction. And finally, it directed that a $1,000 bond posted by Quon for
a temporary restraining order be returned to her.
While the portion of the order extending the preliminary
injunction may have been substantively appealable, see NRAP 3A(b)(3)
(providing for an appeal from an order granting an injunction), the
propriety of the injunction was rendered moot by the entry of the district
court's final judgment, which lifted the injunction. See Personhood
Nevada, 126 Nev. at , 245 P.3d at 574. As to the remaining portions of
the order, no final judgment was entered at that time and the directives
contained in the challenged order were not substantively appealable. See
NRAP 3A(b) (identifying appealable orders); Pengilly v. Rancho Santa Fe
Homeowners Ass'n, 116 Nev. 646, 649, 5 P.3d 569, 571 (2000) (recognizing
that this court has jurisdiction to consider an appeal only when the appeal
is authorized by statute or court rule); Lee v. GNLV Corp., 116 Nev. 424,
426, 996 P.2d 416, 417 (2000) (explaining that "a final judgment is one
that disposes of all the issues presented in the case, and leaves nothing for
the future consideration of the court, except for post-judgment issues such
as attorney's fees and costs"). Accordingly, we dismiss the appeal and
cross-appeal in Docket No. 60157.
To the extent that respondent/cross-appellant Robert Ansara
argues that the forfeiture of the $10,000 bond involves a live controversy,
that issue may be raised in his cross-appeal from the final judgment in
Docket No. 60911. See Consolidated Generator-Nevada, Inc. v. Cummins
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MkMIKZEIN IMEINEEMitid
Engine Co., 114 Nev. 1304, 1312, 971 P.2d 1251, 1256 (1998) (recognizing
that interlocutory orders entered before final judgment may properly be
reviewed in an appeal from the final judgment). The remaining issues in
that appeal and cross-appeal, however, were rendered moot by the death
of Quon during the pendency of the proceedings. In particular, the order
challenged in Docket No. 60911 resolved Quon's request for declaratory
judgment, which she sought in order to determine whether State Farm
could require her to submit to a second examination under oath. In that
order, the district court found that Quon was required to submit to further
examination, but that she was entitled to first receive State Farm's
investigative file as to her claim. At this time, State Farm has already
released the investigative file and further examination of Quon is
impossible in light of her death. And while we recognize that this court's
review of the challenged order could influence State Farm's decision with
regard to the pending insurance claim, this court's role is not to issue
advisory opinions. 2 See Personhood Nevada, 126 Nev. at , 245 P.3d at
574.
In short, this court's review of the challenged order would
have no practical effect. Moreover, given the unique factual situation
presented by this case, we conclude that review under the capable-of-
repetition-yet-evading-review exception to the mootness doctrine is not
appropriate. See Personhood Nevada, 126 Nev. at , 245 P.3d at 575
(indicating that a matter is unlikely to be of public, widespread
importance when its resolution is highly fact specific). Accordingly, we
2 We
also note that State Farm did not file any claim in the district
court seeking a determination that Quon had failed to comply with the
requirements of her insurance policy.
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dismiss the appeal filed by State Farm in Docket No. 60911. See Morrow
v. Morrow, 62 Nev. 492, 497-98, 156 P.2d 827, 829 (1945) (dismissing an
appeal from a divorce action as moot following the death of one of the
parties when there was no property to be divided, such that the only issue
was the personal status of the parties); see also Casillas v. Cano, 79
S.W.3d 587 (Tex. App. 2002) (explaining that a party's death renders an
appeal moot when the death results in the inability of the judgment to
have any practical effect on a live controversy). Ansara's cross-appeal in
Docket No. 60911, however, may proceed only as to the forfeiture of the
bond.
Therefore, Ansara shall have 45 days from the date of this
order to file and serve the opening brief. Briefing shall thereafter proceed
in accordance with NRAP 31(a)(1).
It is so ORDERED.
—ez,r4.1 ' J.
?irdesty
"V0
6.0t
guirre
Cherry
cc: Hon. Gloria Sturman, District Judge
Ara H. Shirinian, Settlement Judge
Kravitz, Schnitzer, Sloane & Johnson, Chtd.
Alverson Taylor Mortensen & Sanders
Eighth District Court Clerk
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