DEBIPARSHAD, M.D. VS. DIST. CT. (LANDESS) ( 2021 )

137 Nev., Advance Opinion 71
IN THE SUPREME COURT OF THE STATE OF NEVADA
KEVIN PAUL DEBIPARSHAD, M.D., No. 81596
AN INDIVIDUAL; KEVIN P.
DEBIPARSHAD PLLC, D/B/A
SYNERGY SPINE AND
ORTHOPEDICS; DEBIPARSHAD
PROFESSIONAL SERVICES, LLC, FILED
D/B/A SYNERGY SPINE AND
ORTHOPEDICS; ALLEGIANT DEC 0 2 2021
INSTITUTE INC., A NEVADA A. BR
COU
DOMESTIC PROFESSIONAL BY
EF DEPIJ1Y CLEM
CORPORATION, D/B/A ALLEGIANT
SPINE INSTITUTE; JASWINDER S.
GROVER, M.D., AN INDIVIDUAL; AND
JASWINDER S. GROVER, M.D., LTD.,
D/B/A NEVADA SPINE CLINIC,
Petitioners,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF
CLARK; AND THE HONORABLE
KERRY LOUISE EARLEY, DISTRICT
JUDGE,
Respondents,
and
JASON GEORGE LANDESS, A/K/A
KAY GEORGE LANDESS,
Real Party in Interest.
Original petition for a writ of mandamus challenging a trial
judges order that was entered while a motion to disqualify the judge was
pending.
Petition granted.
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Lewis Brisbois Bisgaard & Smith, LLP, and Katherine J. Gordon and S.
Brent Vogel, Las Vegas; Lemons, Grundy & Eisenberg and Robert L.
Eisenberg, Reno,
for Petitioners.
The Jimmerson Law Firm, P.C., and James J. Jimmerson, Las Vegas;
Howard & Howard Attorneys PLLC and Martin A. Little and Alexander
Villamar, Las Vegas,
for Real Party in Interest.
BEFORE THE SUPREME COURT, HARDESTY, C.J., STIGLICH and
SILVER, JJ.
OPINION
By the Court, HARDESTY, C.J.:
In this original writ petition, we are asked to determine the
validity of a district court judge's order entered while a motion to disqualify
that judge was pending. We conclude that, once a party files a motion to
disqualify a judge pursuant to the Nevada Code of Judicial Conduct, that
judge can take no further action in the case until the motion to disqualify is
resolved. Further, if the motion is granted and the judge is disqualified,
any order entered by the judge after the motion to disqualify was filed is
void.
FACTS AND PROCEDURAL HISTORY
Real party in interest Jason George Landess (also known as
Kay George Landess) asserted medical malpractice claims against
petitioners Dr. Kevin Paul Debiparshad and Dr. Jaswinder S. Grover and
their respective professional entities (collectively, Debiparshad). During
trial, Debiparshad sought to impeach the favorable character testimony
2
presented by Landess's employer, using an email authored by Landess that
had been admitted into evidence by stipulation of the parties. Landess
thereafter moved for a mistrial due to the introduction of inflammatory
statements he made in the email, also seeking attorney fees and costs.
Debiparshad filed his opposition to Landess's attorney fees motion and a
countermotion for attorney fees. District Judge Rob Bare orally granted the
mistrial motion on the next day of trial. Judge Bare postponed his decision
on whether to award attorney fees and costs because of the mistrial.
Days later, Debiparshad filed a motion to disqualify Judge Bare
under Nevada Code of Judicial Conduct (NCJC) Canon 2, Rule 2.11, based
on Judge Bare's laudatory comments about Landess's counsel during trial
and particularly during argument over Landess's motion to strike the email.
NCJC Rule 2.11(A)(1) provides that "[a] judge shall disqualify himself or
herself in any proceeding in which the judges impartiality might
reasonably be questioned . . . [including when] [t]he judge has a personal
bias or prejudice concerning a party or a party's lawyer." About two weeks
after Debiparshad filed the disqualification motion, Judge Bare entered a
written order reflecting his oral ruling granting the mistrial. Less than a
week later, Judge Weise granted Debiparshad's motion to disqualify Judge
Bare, finding that, due to Judge Bares comments expressing his admiration
of Landess's counsel, "a reasonable person, knowing all the facts, would
harbor reasonable doubts about the judge rls impartiality."
Thereafter, the case was assigned to respondent Judge Kerry
Earley, who held a hearing on the parties motions for attorney fees and
costs. Judge Earley, "wholly incorporating" and relying on Judge Bares
written mistrial order, awarded costs to Landess because, under NRS
18.070(2), Debiparshad "purposefully caused the mistrial." Debiparshad
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subsequently moved for relief from the findings set forth in Judge Bare's
mistrial order, which Judge Earley denied. Debiparshad also moved for
reconsideration of the order awarding costs, which was also denied.
Debiparshad then filed this original petition for a writ of mandamus. In
resolving this petition, this court must determine whether a district court
judge may enter an order after a party has moved to disqualify that judge
under NCJC Rule 2.11.
DISCUSSION
We elect to entertain Debiparshad's petition
Debiparshad argues that this court should entertain this
petition because it presents an issue of first impression and of statewide
importance—whether a judge may enter orders in a case after a party moves
to disqualify that judge under NCJC Rule 2.11. Landess does not dispute
that this petition presents an important issue of first impression of
statewide importance. Instead, Landess argues that Debiparshad's writ
petition is barred by the doctrine of laches because it was not filed until
almost a year after Judge Bare entered his written order granting a
mistrial.
We conclude that the doctrine of laches does not apply here
because Debiparshad promptly pursued legal redress during the one-year
period following Judge Bares written order. Cf. Carson City v. Price, 113
Nev. 409, 412, 934 P.2d 1042, 1044 (1997) (concluding that a claim for
injunctive relief was barred under the doctrine of laches where the delaying
party "did not promptly pursue legal action"). At the time Debiparshad filed
the motion to disqualify, Judge Bare had already declared a mistrial and
dismissed the jury. Though Debiparshad objected to the proposed written
mistrial order, there was no reason to immediately seek further relief once
the disqualification order was entered, as the mistrial had already been
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declared and could not be undone. It was not until Judge Earley relied on
the mistrial order in awarding costs to Landess that Debiparshad was
harmed by the order. At that point, Debiparshad sought relief from the
mistrial order and from the order awarding costs and then filed this petition
a short time after both motions were denied. Thus, under these
circumstances, we conclude that there was no inexcusable delay. Id.Further, Landess fails to demonstrate prejudice from any delay because, as
noted by Debiparshad, the case was still pending retrial.1 Id. ("[L]aches is
more than a mere delay in seeking to enforce ones rights; it is a delay that
works to the disadvantage of another.").
Having determined that Debiparshad's petition is not barred by
the doctrine of laches, we now consider whether to entertain the petition.
We may elect to entertain a petition for writ of mandamus "to compel the
performance of an act that the law requires as a duty resulting from an
office, trust, or station or to control an arbitrary or capricious exercise of
discretion." Intl Game Tech., Inc. v. Second Judicial Dist. Court, 124
Nev. 193, 197, 179 P.3d 556, 558 (2008) (footnote omitted). Alternatively,
we will consider mandamus relief "where a petitioner present[s] legal
issues of statewide importance requiring clarification, and our
decision . . . promote[s] judicial economy and administration by assisting
other jurists, parties, and lawyers." Walker v. Second Judicial Dist. Court,
136 Nev., Adv. Op. 80, 476 P.3d 1194, 1198 (2020) (omission in original)
(internal quotation marks omitted). Because Debiparshad's petition
1We note that the case has since been retried, resulting in a verdict in
favor of Debiparshad.
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presents a legal issue of first impression and public importance involving
the authority of district court judges who are subject to a disqualification
motion under the Judicial Code to continue to act in a case, and because
Debiparshad has no other adequate remedy at law,2 we elect to entertain
this petition. See id. at 1199 ("[A]dvisory mandamus is appropriate only
where it will clarify a substantial issue of public policy or precedential
value.") (internal quotations omitted); see also NRS 34.170 ("[A] writ [of
mandamus] shall be issued in all cases where there is not a plain, speedy
and adequate remedy in the ordinary course of law.").
Judge Bare lacked authority to enter the written mistrial order
Debiparshad argues that Judge Bares written mistrial order is
void because he entered it after the facts giving rise to his disqualification
occurred and a motion to disqualify him was filed. He asks us to adopt the
same disqualification procedure under NCJC Rule 2.11 as set forth in NRS
1.235(5), meaning that once a party files a motion to disqualify, the judge
may not proceed any further with the matter. Landess asserts that Judge
Bare orally declared a mistrial weeks before Debiparshad filed the motion
to disqualify, and thus, the written order granting the mistrial was merely
ministerial in nature and not void. We reject Landess's contention that the
oral ruling is enforceable, as an order granting a mistrial is not effective
until it is written, signed, and filed. See Div. of Child & Family Servs., Dep't
2The interlocutory costs order required immediate payment with no
right to postpone that payment until an appeal from the final judgment
could be taken to challenge it, although the district court ultimately granted
a stay of the costs order upon Debiparshad posting a supersedeas bond. See
NRCP 62(d); Carlson v. Locatelli, 109 Nev. 257, 259, 849 P.2d 313, 314
(1993) (providing that orders granting a mistrial are typically not
appealable because they are not final orders).
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of Human Res. v. Eighth Judicial Dist. Court (J.M.R.), 120 Nev. 445, 454,
92 P.3d 1239, 1245 (2004) ("[D]ispositional court orders that are not
administrative in nature, but deal with the procedural posture or merits of
the underlying controversy, must be written, signed, and filed before they
become effective."), id. at 451, 92 P.3d at 1243 (stating that "a court's oral
pronouncement from the bench . . . [is] ineffective for any purpose" (quoting
Rust v. Clark Cty. Sch. Dist., 103 Nev. 686, 689, 747 P.2d 1380, 1382 (1987)
(alteration omitted))). Alternatively, Landess argues that the NCJC has
not adopted the disqualification procedure outlined in NRS 1.235(5).
Consequently, we must determine at what point a district court judge who
is subject to a disqualification motion under NCJC Rule 2.11 may no longer
take action in the case.
NRS 1.235(1) requires that a party seeking to disqualify a judge
file an affidavit at least 20 days before trial or at least 3 days before any
pretrial matter is heard. Thereafter, "the judge against whom an affidavit
alleging bias or prejudice is filed shall proceed no further with the matter"
except to transfer the case to another judge. NRS 1.235(5)(a). When,
however, the grounds for disqualification are discovered only after the time
for filing an affidavit under NRS 1.235(1) has passed, a party may timely
file a motion to disqualify pursuant to NCJC Rule 2.11 "as soon as possible
after becoming aware of the new information," and the motion must be
adjudicated before the trial may continue. Towbin Dodge, LLC v. Eighth
Judicial Dist. Court, 121 Nev. 251, 260, 112 P.3d 1063, 1069 (2005).3
3Towbin Dodge concerned former NCJC Canon 3E, which is now
Canon 2. See In re the Amendment of the Nev. Code of Judicial Conduct,
ADKT 427 (Order, Dec. 17, 2009). For clarity, we refer to the canon in its
current form when discussing our holding in Towbin Dodge.
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In Towbin Dodge, we noted that NCJC Rule 2.11, which
requires a judge to "disqualify himself or herself in any proceeding in which
the judge's impartiality might reasonably be questioned," does not contain
a procedural mechanism for enforcement. Id. at 257, 259, 112 P.3d at 1067,
1069. We specified the procedure for moving to disqualify a judge pursuant
to NCJC Rule 2.11, explaining that, as with an affidavit filed under NRS
1.235, a motion to disqualify under NCJC Rule 2.11 must include the facts
upon which the disqualification is based and must be referred to another
judge for decision. Id. at 260-61, 1.12 P.3d at 1069-70; see also Turner v.
State, 114 Nev. 682, 687, 962 P.2d 1223, 1226 (1998) (applying, without
discussion, the NRS 1.235 procedural requirements to a motion to disqualify
under both the statute and the NCJC). We did not, however, specifically
address the issue before us now—whether a judge who is subject to a
pending disqualification motion pursuant to NCJC Rule 2.11 may enter an
order after the motion to disqualify has been made but before the
disqualification motion has been resolved, as occurred here.
We conclude that once a motion to disqualify is filed by a party,
the subject judge can take no further action in the case until the motion to
disqualify is resolved. The NCJC requires a judge to "act at all times in a
manner that promotes public confidence in the independence, integrity, and
impartiality of the judiciary and [to] avoid impropriety and the appearance
of impropriety." NCJC Rule 1.2. When a "judge's impartiality might
reasonably be questioned," the judge must disqualify himself or herself from
the proceeding. NCJC Rule 2.11(A). Any motion for disqualification filed
pursuant to NCJC Rule 2.11 after the deadline established by NRS 1.235(1)
must be timely under Towbin Dodge and based on new information learned
or observed after the cutoff date, information which was not otherwise
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known or ascertainable by the moving party. Towbin Dodge, 121 Nev. at
260-61, 112 P.3d at 1069-70. The disqualification motion must be
adjudicated before the trial proceedings may continue. Consistent with his
or her duties under the NCJC to avoid the appearance of impropriety, a
judge should suspend proceedings and refrain from taking further
substantive action in the case once a party moves to disqualify the judge.
We further conclude that any order entered by the judge while
a timely motion to disqualify is pending becomes void should the judge later
be disqualified. Voiding the orders of a judge whose impartiality has
reasonably been questioned promotes confidence in the judiciary. See
Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847, 865 (1988)
(stating that 28 U.S.C. § 455(a), a statute substantially similar to NCJC
Rule 2.11, is designed "to promote confidence in the judiciary by avoiding
even the appearance of impropriety whenever possible). While courts have
split on whether orders entered by disqualified judges are void or merely
voidable, Debiparshad timely challenged the court's order here, and we
conclude that the order, entered after disqualifying acts arose and
Debiparshad's motion to disqualify was filed, is properly deemed void. See
Christie v. City of El Centro, 37 Cal. Rptr. 3d 718, 725 (Ct. App. 2006)
("[D]isqualification occurs when the facts creating disqualification arise, not
when disqualification is established."); see also Hoff v. Eighth Judicial Dist.
Court, 79 Nev. 108, 110, 378 P.2d 977, 978 (1963) ("That the actions of a
district judge, disqualified by statute, are not voidable merely, but void, has
long been the rule in this state."); Frevert v. Srnith, 19 Nev. 363, 11 P. 273(1886) ("[T]he general effect of the statutory prohibitions . . . [is] to render
those acts of a judge involving the exercise of judicial discretion, in a case
wherein he is disqualified from acting, not voidable merely, but void.").
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Thus, Judge Bare's written mistrial order became void once the motion to
disqualify was granted and should be vacated.
CONCLUSION
Accordingly, we grant Debiparshad's petition and direct the
clerk of this court to issue a writ of mandamus instructing the district court
to vacate Judge Bare's mistrial order as void. Further, because the costs
award was based upon the void order's findings, the writ of mandamus must
also direct the district court to vacate the costs award and to reconsider the
motion as to costs sanctions anew. As Debiparshad is not challenging the
mistrial, nothing in this opinion should be read to disturb the trial
proceedings stemming therefrom.4
Hardesty
We concur:
Ale;-$C4--Q J.
Stiglich
J.
Silver
4Givenour disposition, we do not address Debiparshad's request for
this court to interpret the phrase "purposely caused a mistriar as used in
NRS 18.070(2).
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