THOMAS LABS, LLC v. DUKES , 140 Nev. Adv. Op. No. 51 ( 2024 )

140 Nev., Advance Opinion SI
IN THE SUPREME COURT OF THE STATE OF NEVADA
THOMAS LABS, LLC, AN ARIZONA No. 85946
LIMITED LIABILITY COMPANY,
Appellant,
vs. FILED
AMBER MARIE DUKES, BY AND
THROUGH THE SPECIAL AUG 2 2 202
ADMINISTRATOR OF HER ESTATE, ELI HA
RT
CLER.OF UP
Respondent. BY
C IEF DEPUTY CLERK
Appeal from a district court order denying a motion to
substitute a party and dismissing claims pursuant to NRCP 25(a)(1).
Eighth Judicial District Court, Clark County; Nancy L. Allf, Judge.
Reversed and rernanded.
Gibbs Giden Locher Turner Senet & Wittbrodt LLP and Daniel M. Hansen,
Las Vegas,
for Appellant.
The Law Offices of Patrick Driscoll, LLC, and Patrick R. Driscoll, Jr.,
Henderson,
for Respondent.
BEFORE THE SUPREME COURT, HERNDON, LEE, and BELL, JJ.
OPINION
By the Court, BELL, J.:
This opinion clarifies duties arising when a party dies during
litigation. After the death of a party, the decedent's attorney—typically in
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the best position to identify a successor or representative—bears the burden
to ensure litigation continues. The decedent's attorney has a responsibility
under NRS 7.075 to file a notice of death and serve the notice on the other
parties in the case. Under NRCP 25(a), service of the notice of death also
must be made on the decedent's successors or representatives. Full
compliance with NRCP 25(a) starts a 180-day deadline to substitute in the
proper party. Regardless, under NRS 7.075, the decedent's attorney also
has a responsibility to substitute a proper party within 90 days of the
client's death.
Below, Amber Dukes's counsel filed a notice of Dukes's death
but failed to serve the notice on any nonparty successors or representatives,
so the 180-day deadline under NRCP 25 never started. Counsel additionally
failed to identify and substitute the appropriate proper party as required by
NRS 7.075. Despite these issues, the district court granted a motion to
dismiss the case against Dukes. We reverse the district court's order and
remand for the district court to substitute a special administrator for Dukes
so the case may be adjudicated on the merits.
FACTS AND PROCEDURAL HISTORY
Dukes owned a veterinary supply company that bought and
resold products from Thomas Labs, LLC. Thomas Labs sued Dukes and her
company for money owed on products delivered. After litigation began,
Dukes and her boyfriend, Jason Hilliard, executed "The Hilliard-Dukes
Revocable Living Trust." The Trust held Dukes's property. Both Dukes and
Hilliard served as trustees.
Several years into the litigation, Dukes died. Dukes's counsel
filed a notice of death on the record on January 12, 2021. Counsel served
the other parties to the case through the district court's electronic system
but never took any action to identify, notice, or serve any executor, personal
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representative, or next of kin for Dukes. Counsel also took no action to
substitute another party in place of Dukes.
On March 12, 2021, Thomas Labs moved to substitute the Trust
and Hilliard, as trustee, for Dukes. Thomas Labs served the motion to
substitute on Dukes's counsel and Hilliard. Neither counsel, Hilliard, nor
the Trust opposed Thomas Labs's motion. The district court granted the
unopposed motion and substituted the Trust and Hilliard for Dukes.
Thomas Labs then served discovery requests on the Trust and Hilliard and
the case proceeded.
Approximately 300 days after the initial notice of death, a
different law firm filed Dukes's will in probate court. The will appointed
Dukes's brother Lynn Hill as personal representative. After the will was
filed, Dukes's counsel in the civil case moved to dismiss Thomas Labs's
causes of action against Hilliard, the Trust, and Dukes. Counsel claimed
that neither Hilliard nor the Trust were the proper personal representatives
so neither should have been substituted for Dukes. The district court
entered an order dismissing Hilliard and the Trust, but the court returned
Dukes to the suit.
Before entry of the order dismissing Hilliard and the Trust as
representatives, Thomas Labs reached out to the named parties in the will.
All named parties disclaimed interest in serving as Dukes' administrator at
the time. Thomas Labs then petitioned the probate court for the
appointment of a special administrator, Shara Berry, a paralegal in the law
offices representing Thomas Labs. After the probate court granted the
motion, Thomas Labs moved in the civil case to substitute the now-
appointed special administrator as the proper party to continue the
litigation in Dukes's stead. Two days before the hearing on the motion to
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substitute, Hill challenged Berry's appointment as special administrator in
probate court and sought to replace Berry. Hill was then appointed as
special administrator by the probate court.
Meanwhile, in the civil case, Dukes's counsel responded to
Thomas Labs's attempt to substitute in the special administrator by moving
to dismiss the case against Dukes under NRCP 25. Counsel claimed the
180-day deadline for moving to substitute a personal representative had
passed without a motion for substitution of a proper party. Thomas Labs
opposed, arguing that counsel had failed to serve the notice of death on
nonparty successors or representatives of Dukes, meaning the 180-day clock
never started and the new motion to substitute was timely.
The district court denied Thomas Labs's motion to substitute as
untimely and granted the motion to dismiss under NRCP 25. The district
court concluded that service of the original notice of death on the parties,
only, triggered the 180-day deadline for moving to substitute under NRCP
25 and the deadline had elapsed. The district court decided as a matter of
law that Dukes's counsel would have to serve a nonparty successor or
representative of Dukes only if such a person existed when the notice of
death was filed. Because no court-appointed executor or administrator
existed when Dukes's counsel filed the notice of death, the district court
found serving the parties alone triggered the 180-day clock. The district
court summarily concluded that Thomas Labs failed to demonstrate
excusable neglect, and the court declined to enlarge the time to substitute.
The district court dismissed all claims against Dukes. Thomas Labs
appeals.
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DISCUSSION
Thomas Labs argues that the district court improperly
dismissed Thomas Labs's claims against Dukes and misinterpreted NRCP
25(a), as informed by NRS 7.075. This case turns on the legal interpretation
of NRCP 25 and NRS 7.075. This court reviews legal interpretations by the
district court de novo. See Gonor v. Dale, 134 Nev. 898, 899, 432 P.3d 723,
724 (2018). We first address the requirements for proper service of a notice
of death under NRCP 25(a). We next turn to the interrelated statutory
obligations of a decedent's attorney under NRS 7.075.
Under NRCP 25(a), when decedent's counsel files a notice of
death, in addition to serving the parties, counsel must serve the notice on
eligible nonparty successors or representatives to trigger the 180-day
deadline for dismissal. Additionally, NRS 7.075 requires the decedent's
counsel to file a motion to substitute a proper party for the deceased client
within 90 days of the client's death. In this case, the 180-day NRCP 25(a)
deadline was never triggered, and the district court erred by dismissing the
case based on the running of that deadline. Because we reverse and remand
on this issue, we need not reach Thomas Labs's other arguments concerning
the amended notice of death or excusable neglect.
When decedent's counsel files a notice of the decedent's death, NRCP 25(a)
requires service on nonparty successors or representatives before the 180-day
deadline begins to run
In Nevada generally, "no cause of action is lost by reason of the
death of any person, but may be maintained by or against the person's
executor or administrator." NRS 41.100. To preserve causes of action after
the death of a party, NRCP 25(a) provides that any party or the decedent's
successor or representative may move to substitute a "proper party" in the
decedent's place. If substitution of the proper party is not sought within
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180 days of service of the notice of death, however, the case "must be
dismissed." NRCP 25(a)(1). "A motion to substitute must be served on the
parties as provided in Rule 5 and on nonparties as provided in Rule 4," and
"[a] statement noting death must be served in the same manner." NRCP
25(a)(3).
NRCP 25 works in tandem with NRS 7.075, which governs
counsel's duties upon the death of a client under representation in a pending
action. See NRCP 25 advisory committee's note to 2019 amendment. Under
the tandem operation of NRCP 25(a) and NRS 7.075, while anyone may file
the notice of death and move for substitution within the 180-day deadline,
the decedent's counsel bears ultimate responsibility to act and faces
sanctions for failing to take action. See NRS 7.075 ("An attorney at law who
represents any person who is a party to an action pending before any court
shall . . . file a notice of death and a motion for substitution of a party with
the court.").
The issue here is who must be served to trigger the 180-day
period for requesting substitution under NRCP 25(a). This court has
addressed the NRCP 25(a) service requirement in the past. In Gonor v.
Dale, we concluded "a plain reading of NRCP 25(a)(1) requires that the
[notice] of death . . . be served on parties and/or nonparties before the [time]
period is triggered." 134 Nev. at 900, 432 P.3d at 725. Gonor followed Ninth
Circuit Court of Appeals caselaw in holding that the 180-day deadline in
NRCP 25(a)(1) "is triggered by two affirmative actions: (1) 'a party must
formally suggest the death of the party upon the record,' and (2) 'the
[noticing] party must serve other parties and nonparty successors or
representatives of the deceased with a [notice] of death." Id. at 900-01, 432
P.3d at 725 (quoting Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994)).
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At the same time, a notice of death filed by an opposing party, rather than
decedent's counsel, need not be served on decedent's nonparty successors or
representatives to trigger the 180-day deadline. ki. at 900, 432 P.3d at 725
(citing Moseley v. Eighth Jud. Dist. Ct., 124 Nev. 654, 660-61, 188 P.3d 1136,
1141 (2008)). This relaxed service requirement for notices coming from an
opposing party avoids placing the burden on an opposing party of having to
speculate as to the identity of a decedent's successors or representatives.
Moseley, 124 Nev. at 661, 188 P.3d at 1141.
We now clarify that when a decedent's attorney notices their
client's death, nonparty successors or representatives must be served to
start the 180-day clock for dismissal. Unlike an opposing party, a decedent's
counsel typically is in an excellent position to identify the decedent's
successors or representatives. If no clear successors or representatives exist
at the time of a party's death, the decedent's attorney—who bears the
ultimate responsibility to file and serve the notice of death and ensure a
representative is properly substituted—rnay work through probate to
appoint a special administrator to serve as the decedent's representative
and facilitate proper service. See NRS 139.040(1)(j) (allowing "any person
or persons legally qualified" to administer an estate once all other persons
with priority have declined); NRCP 25(a) (requiring participation from the
decedent's "successor or representative"). A decedent's attorney who files
the notice of death must serve the other parties and also nonparty
successors or representatives of the deceased. Until these service conditions
are met, the 180-day deadline does not start.
The district court here erroneously concluded a decedent's
attorney was not required to serve nonparty successors or representatives
with the notice of death when no clear representative was known at the time
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the notice was filed. In dismissing the case against Dukes, the district court
relied heavily on McNarnee v. Eighth Judicial District Court. 135 Nev. 392,
450 P.3d 906 (2019). McNamee held that a notice of death need not identify
the deceased's successor or representative on the face of the notice to trigger
the 180-day deadline because NRCP 25(a)(1) did not require the
representative to be named in the notice. Id. at 395-96, 450 P.3d at 909-10.
The logic of McNamee does not assist when examining the service
requirement for nonparties. While no rule requires naming a successor in
a notice of death, the service of nonparties is explicitly contemplated by the
text of the rule. See NRCP 25(a)(3) ("A motion to substitute must be served
on the parties as provided in Rule 5 and on nonparties as provided in Rule
4. A statement noting death must be served in the same rnanner." (emphases
added)).
McNamee also did not overrule Gonor. We reaffirm the holdings
of both cases. While McNamee focuses on the requirements for the notice
itself, the case only briefly mentions service: "once the [notice] of death is
filed on the record and served upon the appropriate parties, the deadline in
NRCP 25(a)(1) for filing a motion to substitute is triggered." 135 Nev. at
396. 450 P.3d at 910 (emphasis added). McNamee never explains what is
meant by "the appropriate parties," but the analysis frorn Gonor provides
the answer. While a notice of death need not identify the deceased's
successor or representative on its face to be sufficient per McNamee, the
notice of death filed by the decedent's attorney must still be served on a
nonparty successor or representative to meet the service requirement of
NRCP 25(a)(1) per Gonor.
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In this case, the 180-day deadline to move for substitution never
started. After filing the notice of death, Dukes's counsel failed to serve the
nonparty successors or representatives of Dukes in order to trigger the 180-
day deadline for dismissal. Gonor, 134 Nev. at 900-01, 432 P.3d at 725.
Counsel filed the notice of death through the district court's e-filing system,
which electronically served the other parties to the case. Counsel never
served any successors or representatives of Dukes. Because service on a
representative or successor is required by Gonor, the NRCP 25(a)(1) 180-
day deadline never started, and the case should not have been dismissed.
The failures of decedent's counsel should not provide a tactical advantage
in litigation because, as we discuss next, responsibility in this matter
ultimately rests with decedent's counsel.
NRS 7.075 requires decedent's counsel to substitute an eligible party within
90 days
The burden of substitution also rests with the decedent's
counsel under statute. If a party to an action dies, the decedent's attorney
"shall, within 90 days after the death of that person, file a notice of death
and a motion for substitution of a party with the court and cause a copy of
that notice and motion to be served upon every other party to the action."
NRS 7.075. The court may impose sanctions on a decedent's attorney who
fails to meet this obligation, including attorney fees and costs. Id. The
substitution requirement imposed by NRS 7.075 operates in conjunction
with the notice and service rules established by NRCP 25(a). NRCP 25
advisory committee's note to 2019 amendment.
"When a statute's language is clear and unambiguous, it must
be given its plain meaning, unless doing so violates the spirit of the act."
D.R, Horton, Inc. V. Eighth Jud. Dist. Ct., 123 Nev. 468, 476, 168 P.3d 731,
737 (2007) (internal quotation marks omitted). NRS 7.075 clearly and
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unambiguously requires decedent's counsel to move to substitute someone
who can continue representing their client's interests within 90 days of the
client's death. Nothing in this opinion, however, should be taken to suggest
this responsibility precludes any other individual from acting to substitute
a proper party for a decedent consistent with applicable law. If another
party or the decedent's successor or representative acts faster and moves to
substitute a proper party within those 90 days, the decedent's attorney
would be relieved of this duty.
Here, Dukes's counsel neglected his statutory obligations under
NRS 7.075. Counsel failed to file a motion to substitute a party capable of
representing his deceased client's interest within 90 days of her death.
Thomas Labs's motion to substitute Hilliard and the Trust did not relieve
Dukes's counsel of these statutory obligations because Hilliard and the
Trust, as agreed by all concerned, were improper parties to represent
Dukes's interest. Ultimate responsibility to ensure that a motion to
substitute a party capable of representing the decedent's interest remains
with the decedent's attorney. Because 90 days from Dukes's death passed
and no motion to substitute a proper party was before the court, Dukes's
counsel violated the clear and unambiguous requirements of NRS 7.075.
CONCL USION
Decedent's counsel failed to serve nonparty successors or
representatives after filing a notice of death. Because the nonparty
successors or representatives were never served, the NRCP 25(a) deadline
never started running. The district court erred by determining that counsel
did not need to serve nonparty successors or representatives and by
dismissing the case because no proper motion for substitution had been filed
within the 180-day deadline under NRCP 25(e). As a result, we reverse the
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district court's order dismissing the case and remand for the district court
to substitute a special administrator for Dukes so the case may be
adjudicated on the merits.
J.
Bell
We concur:
Herndon
, J.
Lee
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