Schulze v. Dist. Ct. (Preece) ( 2014 )

 an adequate legal remedy precluding writ relief, see Pan v. Eighth
Judicial Dist. Court, 120 Nev. 222, 223-24, 88 P.3d 840, 840-41 (2004),
because "[n]o rule or statute authorizes an appeal from an order of
contempt . . .[,] contempt orders must be challenged by an original petition
pursuant to NRS Chapter 34." Pengilly v. Rancho Santa Fe Homeowners
Ass'n, 116 Nev. 646, 649, 5 P.3d 569, 571 (2000) (citations omitted).
Petitioner is a licensed Nevada attorney who represented the
guardian of real party in interest, James Preece, in a guardianship action
and also served as the trustee of the special needs trust created to benefit
Preece. In a December 29, 2006, order the district court provided that it
would exercise ancillary jurisdiction over the trust. Petitioner was then
appointed as the trustee in an order filed on April 24, 2007, which
instructed that petitioner and the guardian were to develop a budget for
the annual trust expenditures, that the court was to approve the budget
within 90 days of the entry of that order, and that petitioner's costs
incurred as trustee would be subject to ratification by the court at the
annual accounting of trust activities.
Petitioner did not file a budget within 90 days of the entry of
the April 2007 order appointing him as trustee, and he did not file any
annual trust accountings with the court between 2007 and December
2011. In January 2012, petitioner filed a trustee's report notifying the
district court that the guardian had removed Preece in 2010 from the
jurisdiction without court approval and that Preece had thereafter been
removed from the guardian's care and placed in a residential facility
outside of Nevada. According to the report, trust assets were used to
assist with the move and to pay for the residential facility resulting in a
significant reduction in trust assets.
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Based on the events that had transpired, the district court
orally removed petitioner as trustee of the special needs trust, and in a
written order entered in July 2013, held petitioner in contempt of court
and imposed sanctions on petitioner for (1) failing to file a budget within
90 days of the 2007 order appointing him as trustee, (2) failing to file
annual trust accountings with the court, and (3) aiding and abetting the
guardian in removing Preece from the jurisdiction without prior approval
of the court. Petitioner filed this petition for extraordinary relief
challenging the contempt findings and the imposition of sanctions.
A district court may hold a person in contempt when the
person has failed to comply with a lawful order or rule.' NRS 22.010(3).
To be held in contempt for disobeying a court order, the order must clearly
put the person on notice of what is required. Sw. Gas Corp. v. Flintkote
Co., 99 Nev. 127, 131, 659 P.2d 861, 864 (1983). This court generally
"affords the district court sufficient leeway to exercise its [contempt]
power." See In re Claimants, 118 Nev. at 907, 59 P.3d at 1229-30.
The documents attached to the writ petition support the
district court's conclusion to hold petitioner in contempt and impose
'Petitioner asserts that the district court erred by holding him in
criminal contempt without applying the higher standard of proof for
criminal contempt. But because the contempt order is indeterminate and
meant to compel petitioner's obedience to an order for the benefit of
Preece, we conclude that the district court did not err in applying the civil
contempt standard of clear and convincing evidence. See Warner v. Second
Judicial Dist. Court, 111 Nev. 1379, 1382-83, 906 P.2d 707, 709 (1995)
(providing that "civil contempts are those prosecuted to enforce the rights
of private parties and to compel obedience to orders or decrees for the
benefit of opposing parties"); see also In re Claimants v. State Eng'r, 118
Nev. 901, 909, 59 P.3d 1226, 1231 (2002) (explaining that a civil contempt
order is "conditional or indeterminate" (internal quotations omitted)).
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sanctions on all three accounts. 2 See id. First, petitioner failed to file a
budget for the court's approval within 90 days of the April 2007 order
appointing him as trustee when petitioner was specifically ordered to do
so. NRS 22.010(3). Second, petitioner failed to file annual trust
accountings with the court, despite the fact that he had adequate notice of
his duty to do so. See NRS 22.010(3); Sw. Gas Corp., 99 Nev. at 131, 659
P.2d at 864. In particular, the April 2007 order approved the annual trust
accounting of the previous trustee, appointed petitioner as the new
trustee, and specifically provided that petitioner's costs incurred as trustee
would be subject to ratification by the court "at the annual accounting of
trust activities." Moreover, in response to the district court's questioning
at the December 3, 2012, hearing on the order to show cause, petitioner
conceded that he was aware that he was expected as trustee to report
annually to the court. Petitioner's billing records also demonstrated that
he was working on a "court accounting for the trust" in 2010, but
petitioner failed to file any annual trust accounting between 2007 and
December 2011. Finally, the record supports the district court's contempt
holding regarding petitioner's actions in aiding and abetting the
guardian's removal of Preece from Nevada because petitioner had a duty,
as legal counsel, not to assist the guardian in any conduct that was
fraudulent or unlawful. See RPC 1.2(d); NRS 159.2023 (requiring a
guardian to seek court approval to permanently remove a ward from the
jurisdiction). For these reasons, we conclude that the district court did not
arbitrarily or capriciously exercise its discretion in holding petitioner in
2 Whilepetitioner asserts that the district court improperly entered
the nunc pro tunc order, the district court took jurisdiction over the trust
in the December 29, 2006, order.
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contempt and imposing sanctions. NRS 34.160; NRS 34.320; Int'l Game
Tech., 124 Nev. at 197, 179 P.3d at 558. Accordingly, we
ORDER the petition DENIED.
iL
Pickering
Parraguirre
Saitta
cc: Hon. Egan K. Walker, District Judge
Lemons, Grundy & Eisenberg
Solomon Dwiggins & Freer
Brian C. McQuaid
Washoe District Court Clerk
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