Wolverton v. Carvalho ( 2013 )

before this court on appeal. The district court agreed with RMCM and
granted the dismissal. Thus, the district court declared that the instant
action was not ripe for adjudication. Judgment was entered and this
appeal followed.'
On appeal, Wolverton contends that the district court erred
when it dismissed the instant action based on ripeness. Wolverton argues
that RMCM's fraudulent and tortious conduct of altering and forging the
PHI form could constitute independent causes of action outside of simply
being discovery violations in the underlying action.
We agree with Wolverton's argument that, if true, RMCM's
alleged tortious acts constitute independent torts and are not merely
discovery violations. Thus, we conclude that Wolverton's claims are ripe
as the two cases are distinct—both address different issues. See
Wolverton v. On Demand Sedan Services, Docket Nos. 55556/56277 (Order
of Affirmance, October 27, 2011) (Wolverton I); Cote H. v. Dist. Ct., 124
Nev. 36, 38 n.1, 175 P.3d 906, 907 n.1 (2008) ("A case is ripe for review
when the degree to which the harm alleged by the party seeking review is
sufficiently concrete. . . [and] yield[s] a justiciable controversy."
(alterations in original) (internal quotation omitted)).
We come to this conclusion for three reasons. First, a review
of NRCP 37(b) lists a plethora of possible sanctions for discovery
violations, but the scope of possible violations is limited to failures to
disclose and cooperate. Nowhere is potentially tortious activity on the
'The parties are familiar with the facts and we do not recount them
further except as necessary for our disposition.
2
part of opposing counsel contemplated as an offense that can be rectified
through sanctions. Thus, a separate cause of action is an available
remedy.
Second, we elect not to adopt RMCM's extrapolation of Phipps
v. Union Elec. Co., 25 S.W.3d 679 (Mo. Ct. App. 2000), to the instant case.
The "fraud" in Phipps dealt with an intentional failure to disclose a known
fact in an interrogatory, an act clearly contemplated in Missouri's
discovery rules, whereas, here, allegations have been made that exceed the
scope of our state's discovery sanctions rule. Id. at 681. RMCM omits the
explanation that an exceptional circumstances rule allows a third-party to
hold an attorney liable in cases involving, inter alia, fraud. Id. at 682.
Thus, we conclude that a separate cause of action is available because the
allegations, if proven, are far afield from legitimate actions that may be
taken by an opposing counsel in advocating for his client.
Third, the appeals are from distinct district court orders. In
the appeal of the prior action, this court determined whether the jury
verdict should be upheld and primarily addressed three issues: (1) jury
instructions, (2) the exclusion of impeachment evidence, and (3) the
propriety of denying a motion to amend. See Wolverton I. Here, we
examine an order of dismissal, addressing RMCM's alleged fraudulent
altering and forgery of the PHI form. Moreover, the damages in the prior
case pertained to personal injuries that Wolverton suffered as a result of
SUPREME COURT
OF
NEVADA
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an automobile-related accident, while the damages in this case would
result from alleged forgery. 2 Thus, we conclude the new claims are
distinct from the prior appeal.
For these reasons, we conclude that this case is ripe for
review. Acccordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order. 3
J.
cc: Hon. Mark R. Denton, District Judge
Christensen Law Offices, LLC
Lipson Neilson Cole Seltzer & Garin, P.C.
Eighth District Court Clerk
our order of affirmance in Wolverton I, we briefly discussed the
2 In
PHI form violations and misrepresentations and, in a footnote, concluded
that no relief was warranted in that matter. We conclude that our
footnote there should not be construed as a comment on the merits of
Wolverton's claims here.
3 We express no opinion regarding the merits of the parties' other
claims.