Eby v. Johnston Law Office, P.C.

138 Nev., Advance Opinion 49-5
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
DONALD DOUGLAS EBY: No. 83299-COA
Appellant,
VS.
JOHNSTON LAW OFFIC.E, P.C.; BRAD FILE
M. JOHNSTON; AND LEANN E.
SCHUMANN, SEP 08 2022
Respondents. ELIZABETH A. BROWN
CLERK Qi='=.1J''REME COURT
UY
DEPU CLERK
Appeal from a district court order striking a second amended
complaint and dismissing a tort action with prejudice. Third Judicial
District Court, Lyon County; John Schlegelmilch, judge.
Affirmed in part, reversed in part, and remanded.
Donald Douglas Eby, Gardnerville,
in .Pro Se.
Santoro Whitmire, Ltd., and James E. Whitmire, Las Vegas,
for Respondents.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., TAO and BULLA,
JJ.
()PINION
PER CURIAM:
In this opinion, we consider the extent to which a nonlawyer
agent who is granted authority over claims and litigation under a power of
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attorney pursuant to Nevada's Uniform Power of Attorney Act, as codified
in NRS Chapter 162A, may litigate a claim belonging to the principal.
Construing the statutory scheme in a manner consistent with long-standing
Nevada law prohibiting the unauthorized practice of law, we hold that a
nonlawyer agent operating under a power of attorney concerning claims and
litigation may not litigate an action in pro se in place of the principal or
otherwise engage in the practice of law on the principal's behalf; rather, our
statutes generally grant such an agent the same limited authority a client
has over claims and litigation in an attorney-client relationship.
Because th.e distri.ct court correctly determined below that
appellant's nonlawyer agent under a power of attorney was engaged in the
unauthorized practice of law, we affirrn its decision to strike the second
amended complaint prepared by the agent. But because the district court
proceeded to dismiss appellant's last remaining claim in the action with
prejudice without conducting the requisite analysis for imposing case-
concluding sanctions, we reverse that dismissal and remand this matter to
the district court for proceedings consistent with this opinion.
FACTS AND PROCE.DURAL HISTORY
Appellant Donald Douglas Eby was convicted in April. 20.1.8 of
battery causing substantial bodily harm and sentenced to a term of
imprisonment for 1.2-48 months. Shortly after Eby's conviction, the victim
of the crime filed a tort action. against him in connection with the battery.
Eby retained respondents Johnston Law Office, P.C.; Brad M. Johnston;
and LeAn.n E. Schumann to defend against the suit, and he executed a
power of attorney giving them authority to settle the case, which they
ultimately did in October 2018 in the amount of $500,000.
In September 2020, Eby filed the underlying action in pro se
against respondents, asserting various causes of action, including legal.
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malpractice. Shortly thereafter, he filed a first amended complaint, adding
an additional claim and inore detailed allegations. He essentially claimed
that respondents could have obtained a more favorable resolution of the
case had they properly advised him on the law and proceeded wi.th
litigation. .H.e also vaguely alleged that respondents forced him to sign the
power of attorney granting them authority to settle. These first two
pleadings were signed only in Eby's name.
Respondents filed a motion to dismiss the first amended
complaint, arguing that Eby failed to state a claim under NRCP :12*(5).
Eby opposed the motion, again in papers signed only in his name. However,
prior to the scheduled hearing on the motion to dismiss, Eby filed a motion
requesting that the court permit Theodore Stevens, an inmate serving a life
sentence at Lovelock Correctional Center, to appear at the hearing on Eby's
behalf by audiovisual means. In the motion, Eby stated that, because he is
not a lawyer, has no legal training, and :is of limited education, he had been
relying on Stevens's assistance for preparing the legal filings in the case.
Eby further stated that he would not be able to argue his case alone before
the court and that he therefore required Stevens's assistance at the hearing.
The motion also included a signed declaration from Eby attesting to these
representations. The di.strict court issued a written order denying the
motion, identifying Stevens as a "jailhouse lawyer" who "is not a licensed
attorney in the State of Nevada" and therefore "cannot represent [Eby]," as
"[a]ny representation would be the unauthorized practice of law."
The district court proceeded to hold the hearing on respondents'
motion to dismiss, at which Eby appeared on his own behalf. Following
argument by the parties on the motion to dismiss and respondents' oral
motion for a more definite statement in the alternative, the court orally
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ruled that it was dismissing the first amended complaint on the merits in
its entirety except to the extent Eby based his malpractice claim on the
allegation that respondents forced him to sign the power of attorney
concerning settlement. The court explained that it was granting Eby leave
to amend to provide a more definite statement on the power-of-attorney
allegation and that it would dismiss the action without prejudice if Eby
failed to file a second amended complaint within 30 days. The court further
admonished Eby that he would either need to hire an attorney or prepare
the pleading himself without the assistance of Stevens. Eby confirmed that
he understood the court's ruling, and he at no point disputed the
representations in his earlier motion that Stevens had been assisting in the
preparation of pleadings and papers on his behalf.
After the hearing, the district court issued a written order
disniissing the first amended complaint with prejudice under NRCP
12(b)(5), except for the malpractice claim, for which it was granting Eby
leave to amend to provide a more definite statement, thereby leaving the
merits of that claim unresolved.' The written order reflected the court's
oral ruling from the hearing in all respects except that it stated the action
would be dismissed with prejudice rather than without if Eby failed to
properly file an amended complaint within 30 days. Eby—through Stevens,
in violation of the court's admonitions—filed an objection to the content of
the written order, but he did not challenge the extent to which the order
provided that dismissal for failure to comply with it would be with prejudice.
"On appeal, Eby does not challenge the district court's decision to
dismiss all claims other than the malpractice claim with prejudice under
NRCP 12(3)(5). Thus, the issue is not before us. See Powell v. Liberty Mut.
Fire Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (providing
that issues not raised on appeal are deemed waived).
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In light of what followed, the district court did not ultimately rule on this
objection.
Eby, again through Stevens, proceeded to file a second amended
complaint on the last day of the 30-day period. The pleading purported to
substitute Stevens into the action as plaintiff in Eby's place, provided that
Stevens was proceeding on Eby's beh.alf as his attorney-in-fact under a
power of attorney pursuant to NRS 1.62A.470 and NRS 162A.560, and was
signed by Stevens in that capacity. The district court, before any response
to the pleading was filed a.nd without holding a hearing or addressing the
statutes relied upon by Eby/Stevens, entered a written order concluding
that Stevens was engaged in the unauthorized practice of law, striking all
d.ocuments authored by Stevens as fugitive documents—including the
second amended complaint—and dismissing the action with prejudice for
failure to comply with the court's prior order. This appeal followed.
ANAL YSIS
On appeal, Eby primarily contends that Stevens had the
authority to represent him and litigate the underlying matter on his behalf
by virtue of the limited power of attorney he executed giving Stevens such
authority. Specifically, Eby contends that NRS 162A.470 and NRS
162A.560 expressly allow for a principal to grant such authority to an
attorney-in-fact under a power of attorney.2 Eby also challenges the form
2 Eby likewise contends that Stevens could bring the action himself
and/or on Eby's behalf under NRCP 17. See NRCP 17(a)(1)(G) (identifying
44
a party authorized by statute" as one who "may sue in [his or her] own
ame[ ] without joining the person for whose benefit the action is brought");
NRCP 17(b)(1) (providing that "[c]apacity to sue ... for an individual,
including one acting in a representative capacity, [is determined] by the law
of this state"). As this argument is wholly dependent on Eby's contention
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of the district court's dismissal, contending that it was inconsistent with the
court's oral ruling at the hearing on respondents' motion to dismiss, where
the court stated that .it would dismiss the action without prejudice if Eby
failed to properly file an amended complaint within 30 days. We address
each argument in turn.
An individual may not authorize a nonlawyer to litigate in pro se or practice
law on his or her behalf by virtue of a power of attorney
Because resolving the issue of whether Stevens was permitted
to litigate the underlying matter on Eby's behalf by virtue of the power of
attorney requires interpreting statutes and court rules, our review on this
point is de novo. Marquis & Au,rbach v. Eighth Judicial Dist. Court, 122
Nev. 1147, 1156, 146 P.3d 1130, 1136 (2006).
NRS Chapter 1.62A governs powers of attorney for financial
matters and healthcare decisions. A "[plower of attorney" is defined as "a
writing or other record that grants authority to an agent to act in the place
of the principal, whether or not the terrn 'power of attorney' is used."' NRS
162A.090. Nevada's Uniform Power of Attorney Act (UPOAA), enacted by
the Legislature in 2009, see 2009 Nev. Stat., ch. 64, §§ 1-56, at 174-98, is
codified within NRS Chapter 162A and sets forth the scope and operation
of powers of attorney for financial matters.4 See NRS 162A.200- .660. As
that Stevens was authorized to litigate the underlying case under NRS
Chapter 162A, we reject it for the reasons discussed herein.
3 NRS 162A.030 defines "[a]gent" as "a person granted authority to act
for a principal under a power of attorney, whether denominated an agent,
attorney-in-fact or otherwise."
4At the same time, the Legislature enacted separate provisions
concerning powers of attorney for healthcare decisions. See 2009 Nev. Stat.,
ch. 64, §§ 57-73, at 198-207.
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relevant to this appeal, NRS 162A.470, entitled "[c]onstruction of authority
generally," provides as follows:
Except as otherwise provided in the power of
attorney, by executing a power of attorney that
incorporates by reference a subject described in
NRS 1.62A.200 to 162A.660, inclusive, . . . a
principal authorizes the agent to ... [d]emand,
receive and obtain, by litigation or otherwise,
money or another thing of value to which the
principal is, may become or claims to be
entitled . . . .
NRS 162A.470(1) (emphasis added). And one of the "subject[s] described in
NRS 162A.200 to 162A.660" is that found in NRS 162A.560, entitled
"[c]laims and litigation." Under that statute, unless otherwise stated, if a
power of attorney grants an agent "general authority with respect to claims
and litigation," the agent may "[a]ssert and maintain before a court . . . a
claim, claim for relief, [or] cause of action, ... including an action to
recover . . . damages sustained by the principal." NRS 162A.560(1).
NRS 162A.560 proceeds to enumerate various other powers
granted to such an agent, including that the agent may "[b]ring an action to
determine adverse claims or intervene or otherwise participate in
litigation;" "[s]ubmit to alternative dispute resolution, settle, and propose
or accept a compromise;" and "appear for the principal, . . . verify pleadings,
seek appellate review, . . . contract and pay for the preparation and printing
of records and briefs, and receive, execute and file or deliver [any]
instrument in connection with the prosecution, settlement or defense of' a
claim or litigation." NRS 162A.560(2), (5), (6). Thus, the plain language of
the UPOAA allows a principal to grant considerable authority over the
litigation of his or her own causes of action to an agent under a power of
attorney.
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However, it i.s well established that it is unlawful for a person
to practice law in Nevada unless that person is an "active member of the
State Bar of Nevada or otherwise authorized to practice law in this state
pursuant to the rules of the Supreme Court." NRS 7.285(1)(a);5 see SCR 77
("No person may practice law as an officer of the courts in this state who is
not an active member of the state bar, unless authorized to practice subject
to [other Supreme Court Rules]."). And our supreme court has previously
noted that, "[a]lthough an individual is entitled to represent himself or
herself in the district court, no rule or statute permits a non-attorney to
represent any other person . . . in the district courts or in [the appellate]
court[s]." Guerin u. Guerin, 116 Nev. 210, 214, 993 P.2d 1256, 1258 (2000)
(citation omitted) (citing Salrnan u. Newell, 110 Nev. 1333, 1336, 885 P.2d
607, 608 (1994)). The underlying purpose of this prohibition on the
unauthorized practice of law is "to ensure that the public is served by those
who h.ave demonstrated training and competence and who are subject to
regulation and discipline." In re Discipline of Lerner, 124 Nev. 1232, 1237,
197 P.3d 1067, 1072 (2008).
In Lerner, the supreme court held "that what constitutes the
practice of law must be determined. on a case-by-case basis, bearing in mind
the overarching principle that the practice of law is involved when the
activity requires the exercise of jud.gment in applying general legal
knowledge to a client's specific problem." Id. at 1234, 197 P.3d at 1069. And
here, Eby does not substantially dispute that Stevens—by advising Eby in
connection with the underlying action and preparing and submitting filings
therein on his behalf—was engaged in conduct that generally constitutes
51inder NRS 7.285(2), a person who engages in the unauthorized
practice of law may be charged with a criminal offense.
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practicing law. Nor could he reasonably dispute this point, as Stevens's
actions in litigating th.e un.derlying case clearly amounted to such practice.
See id. at 1241, 197 P.3d at 1074 (recognizing that, even short of litigating
an action in court, the "exercise of professional judgment" and "evaluating
. . . claim, advising clients of the claim's merits, and negotiating the claim"
constitute the practice of law); 7 Am. Jur. 2d Attorneys at Law § 1 (2017)
C[The practice of law] embraces the preparation of pleadings and other
papers incident to actions . . . ."). Instead, Eby seems to contend that the
UPOAA allows a nonlawyer agent with a valid power of attorney concerning
claims and litigation to essentially step into the shoes of the principal and
litigate an action as if the principal were proceeding in pro se, or that it
simply authorizes such an agent to engage in the practice of law on the
principal's behalf. We disagree.
Although our appellate courts have not specifically addressed.
this i.ssue, the supreme court considered a similar issue in Martinez v.
Eighth Judicial District Court, 102 Nev. 561, 729 P.2d 487 (1986). In that
original writ proceeding, the court rejected the petitioner's argument that a
nonattorney agent could represent him in the district court under a statute
providing that a person claiming unemployment benefits could "be
represented [before a court] by counsel or other duly authorized agent." Id.
at 562, 729 P.2d at 488 (emphasis omitted) (quoting NRS 612.705(2) (1967)).
The court summarily determined that the statute did. not operate in the
manner suggested, as "only a licensed attorney may be duly authorized to
represent a client" in a court of law. id. (citing SCR 77 and NRS 7.285).
However, unlike the power-of-attorney statutes at issue in this case, the
statute addressed in Martinez did not purport to convey any sort of specific
authority concerning claims and litigation to an agent.
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With respect to the power-of-attorney statutes at issue here, the
only authority citing them is an unpublished order of dismissal from the
United States District Court for the District of Nevada. See Handley v.
Bank of Am., N.A., No. 2:10-cv-01644-RLH-PAL, 2010 WL 4607014, at *2
(D. Nev. Nov. 4, 2010). There, as here, a nonlawyer acting pursuant to a
power of attorney represented the plaintiff in a civil action. Id. at *1. The
defendants filed a motion. to dismiss the complaint, which the court granted,
concluding summarily that "[t]he power of attorney defined in NRS Chapter
162A does not circumvent NRS 7.285's prohibition on the unauthorized
practice of law." Id. at *2. The court further noted. that while "[the agent]
may be able to secure proper legal representation for Plaintiff pursuant to
Plaintiffs power of attorney," the agent could not "representH Plaintiff as
a so called attorney-in-fact." Id. (citing NRS 162A.470). Although the
analysis in its written order was cursory, for the reasons set forth below, we
agree with the Handley court's decision.
Courts in other jurisdictions have addressed whether power-of-
attorney statutes like Nevada's can be used to circumvent the general
prohibition on the practice of law by nonlawyers in greater depth, including
the California Court of Appeal in Drake v. Superior Court, 26 Cal. Rptr. 2d
829 (Ct. App. 1994).6 The Drake court considered "whether the long-
standing, statutory prohibition against the practice of law by persons not
admitted. to the Bar has been abrogated by the more recently adopted
6 SeeIn re Foster, Bk. No. 11-17709-WRL, 2012 WL 6554718, at. *4, *5
(B.A.P. 9th Cir. Dec. 14, 2012) (noting that "[c]ase law is rather sparse on
the issue of whether an attorney-in-fact can sign a complaint or otherwise
appear on behalf of her principal" and that Drake is "[t]he leading California
case on this issue").
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Uniform Statutory Form Power of Attorney Act."7 Id. at 830. Specifically,
the court evaluated the broad powers conferred on an attorney-in-fact under
Cal. Civ. Code § 2494 (West 1993),8 id., a provision concerning claims and
litigation that was materially similar to NRS 162A.560. In Drake, Terry
Drake obtained a form power of attorney from two other individuals giving
him general authority over claims and litigation, which he used in an
attempt to appear in legal proceedings on their behalf. 26 Cal. Rptr. 2d at
831. When the lower court rejected these attempts, Drake petitioned the
court of appeal for a writ of mandate directing the lower court to allow him
to appear. Id.
The court of appeal denied Drake's petition, concluding that,
"despi.te [its] broad language, the Power of Attorney Act does not permit
attorneys in fact to engage in legal activities clothed only with a power of
attorney." Id. In so doing, the court first noted that, while principals under
a power of attorney may appear in pro se, an agent may not do so on their
behalf, as, "[b]y definition, one cannot appear in 'propria' persona for
another person." Id.
7 California's
power-of-attorney law was a precursor to the current
uniform act. See Unif. .Power of Attorney Act § 404(2) (Unif. Law Comrn'n
2006) (repealing the Uniform Statutory Form Power of Attorney Act).
Nevertheless, its relevant provisions are sufficiently analogous to the
UPOAA as enacted in Nevada to inform our analysis here.
8This provision was later recodified without change as the current
Cal. Prob. Code § 4459 (West 2009). See 1994 Cal. Stat., ch. 307, §§ 9, 16,
at 1982-83, 2010-11.
9Appearing in pro se" is synonymous with appearing ,Li n propria
persona" and means to appear "[flor oneself; on one's own behalf; without a
lawyer." Pro Se, Black's Law Dictionary (11th ed. 2019).
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The court went on to address Drake's contention that he could
essentially practice law on behalf of a principal under a power of attorney
that "expressly authorizes him to `[a]ssert and prosecute before a court . . . a
claim [or] cause of action,' ... '[b]ring an action to determine adverse
claims, intervene in litigation and act as amicus curiae,' . . . and 'appear for
[his principals] ... in connection with the prosecution, settlement or
defense of a claim or litigation.' id. at 831-32 (alterations in original)
(quoting Cal. Civ. Code § 2494(a), (b), (e)). In rejecting this argument, the
court determined that accepting Drake's construction of the power-of-
attorney statutes would reach the absurd result of "sanction[ing] criminal
conduct" by allowing for "the unauthorized practice of law." Id. at 832. The
court relied on long-standing California law allowing for persons to
represent their own interests in court but prohibiting nonlawyers from
doing so on behalf of others, and it recognized the general legal distinction
between an attorney-in-fact under a power of attorney on the one hand, and
an attorney-at-law on. the other. Id. (providing "that a power of attorney is
not a vehicle which authorizes an attorney in fact to act as an attorney at
law," as holding otherwise would "relegate[ the prohibition on the
unauthorized practice of law] to contempt by any layman who secured from
his principal an ordinary power of attorney, for the purpose of representing
him in pending litigation" (internal quotation marks omitted)); see Attorney,
Black's Law Dictionary (11th ed. 201.9) (distinguishing between an
"attorney-in-fact" as an agent "designated to transact business for another"
and an "attorney-at-law" as "[s]omeone who practices law").
The rationale of the Drake court is persuasive, and we adopt a
similar approach in concluding that a nonlawyer agent with a power of
attorney concerning claims and litigation is not authorized to appear in a
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pro-se capacity in place of the principal. or practice law on the principal's
behalf. In line with .Drake, we conclude that Stevens, by definition, cannot
appear in pro se on Eby's behalf; only Eby may do so. See 26 Cal. Rptr. 2d
at 831; see also SCR 44. Moreover, the Nevada provisions relied upon by
Eby in arguing that Stevens could advocate for him in a representative
capacity are sufficiently similar to the California statute addressed in Drake
that the Drake court's reasoning applies with equal force here. Compare 26
Cal. Rptr. 2d at 831-32 (discussing the former Cal. Civ. Code § 2494), with
NRS 162A.470, .560 (granting agents similar authority under a power of
attorney concerning claims and litigation). For example, both states'
statutes expressly authorize an agent to, arnong other things,
"[aissert . . . before a court . . . a claim, claim for relief, [or] cause of
action . . . to recover. . damages sustained by the principal," "[Wring an
action to determine adverse claims," and "appear for the principal" with
respect to claims and. litigation. Cornpare NRS 162A.560(1)-(2), (6), with,
Cal. Prob. Code § 4459(a)-(b), (e) (West 2009).
Like the Drake court noted in its application of California's
materially similar law, we find no support in the UPOAA for the notion that
the Nevada Legislature intended to supplant well-established law
prohibiting the unauthorized practice of law. See NRS 162A.380 ("Unless
displaced by a provision of NRS 162A.200 to 162A.660, inclusive, the
principles of law and equity supplement NRS 162A.200 to 162A.660,
inclusive."); In re CityCenter Constr. & Lien Master Litig., 129 Nev. 669,
677, 310 P.3d 574, 580 (2013) ("Whenever possible, we will interpret a rule
or statute in harmony with other rules or statutes." (alteration and internal.
quotation marks omitted)); cf. .Drake, 26 Cal. Rptr. 2d at 832 ("[T]he
authority of attorneys in fact under section 2494 is restricted—it is subject
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to conditions of fact and law that exist outside this chapter." (internal
quotation marks omitted)). :indeed, interpreting the statutes in the manner
Eby suggests would reach the absurd result of "sanction[ing] criminal
conduct" by allowing nonlawyers to engage in "the unauthorized practice of
law." Drake, 26 Cal. Rptr. 2d at 832; see also NRS 7.285; .Platte River Ins.
Co. v. Jackson, 137 Nev., Adv. Op. 82, 500 P.3d 1257, 1262 (2021) ("We
strive to the extent possible to interpret a statute in a matter that avoids
unreasonable or absurd results unintended by the Legislature." (alteration
and internal quotation marks omitted)). And although the UPOAA provides
a principal the ability to grant broad authority over claims and litigation to
an agent, the powers enumerated in the statutes do not specifically
contemplate the practice of law and instead indicate that such authority is
1°
For example, NRS 162A.560(6) provides that an agent may
-verify pleadings" and "contract and pay for the preparation . . . of records
and briefs." But it does not provide that the agent may actually prepare
such documents himself or argue in support of them in court. See Doe
Dancer I v. La Fuente, Inc., 137 Nev. 20, 34, 4.81 P.3d 860, 873 (2021)
(acknowledging "the canon of construction 'expressio unius est exclusio
alterius," meaning "the expressi.on of one thing is the exclusion of another"
(internal quotation marks omitted)); see also Drake, 26 Cal. Rptr. 2d at 832
(employing similar reasoning under identical statutory language). And the
UPOAA expressly grants an agent the ability to "[d]o any lawful act with
loAn agent who is also a duly licensed attorney would of course have
the authority to practice law on the principal's behalf, but it would be the
agent's law license—not the power of attorney—that would give rise to such
authority.
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respect to the subject [of the power of attorney]," NRS 1.62A.470(10)
(emphasis added), which of course does not include the unlawful practice of
law." See Drake, 26 Cal. Rptr. 2d at 833 (applying a materially similar
provision of the California statute in concluding that a nonlawyer agent
may not engage in the unauthorized practice of law).
Courts in multiple other jurisdictions have addressed this issue
and reached similar conclusions. See, e.g., Johns v. County of San Diego,
114 F.3d 874, 876 (9th Cir. 1997); Weber v. Garza, 570 F.2d 511, 514 (5th
Cir. 1978); Christiansen v. Melinda, 857 P.2d 345, 346-49 (Alaska 1993);
Jones v. Brooks, 97 A.3d 97, 103-04 (D.C. 2014); In re Conservatorship of
Riebel, 625 N.W.2d 480, 481-83 (Minn. 2001); Kohlman v. W. Pa. Hosp., 652
A.2d 849, 850-52 (Pa. Super. Ct. 1994). Thus, consistent with the foregoing,
and contrary to Eby's reading of the statutes, we conclude the UPOAA is
better understood as allowing a principal to grant an agent the authority
over claims and litigation the principal would have as a client in an.
attorney-client relationship. See Christiansen, 857 P.2d at 349 (concluding
that the "powers [enumerated in Alaska's similar power-of-attorney law]
are best characterized as authorizing the agent to act as the client in an
attorney-client relationship"); accord Jones, 97 A.3d at 103; Riebel, 625
11 While the language in NRS 162A.560(6) providing that an agent
may "appear for the principal" is seemingly broad enough to allow a
nonlawyer agent to do what Stevens did in this case, in light of our analysis
herein, we construe NRS 162A.560 to mean that an agent may appear for
the principal in any manner otherwise consistent with law. This does not
include appearing in a purportedly pro-se capacity on behalf of the principal
or as an unlicensed legal practitioner but may include appearing through
counsel or testifying on the principal's behalf. Compare NRS 162A.560(4)
(providing that an agent may "consent to examination and bind the
principal in litigation"), with Cal. Prob. Code § 4459(c)(2) (providing an
agent similar authority).
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N.W.2d at 482; Kohltnan, 652 A.2d at 852. On this point, we note that the
powers set forth in NRS 162A.560, which generally encompass bringing an
action, submitting to alternative dispute resolution, seeking appellate
review, and settling a claim or otherwise concluding an action or satisfying
a judgment, are consistent with those decisions that are reserved to a client
und.er the Nevada Rules of Professional Conduct. See RPC 1.2(a) (providing
that, "[s]ubject to [certain exceptions], a lawyer shall abide by a client's
decision concerning the objectives of representation," including the
"decision whether to settle a matter"); cf. Kohlman, 652 A.2d at 852 (noting
that "the decisions whether to prosecute, defend, settle, or arbitrate a claim
belong to the client, not to the attorney," and that "[t]he agent, therefore,
while lacking authority to litigate pro se in his or her principal's stead,
creates and controls the attorney-client relationship as fully as if he or she
were the principal").
By read.ing the statutes in this way, we construe them
con.sistently with existing Nevada law prohibiting the unauthorized
practice of law, see Cityeenter, 1.29 Nev. at 677, 310 P.U. at 580, and avoid
a construction that would allow laymen to easily circumvent the same
through the use of a power of attorney, see Drake, 26 Cal. Rptr. 2d at 832.
We therefore reject Eby's arguments and hold that a nonlawyer agent under
a power of attorney is not entitled to appear in pro se in place of the principal
or engage in the practice of law on the principal's behalf. Accordingly, Eby.
has failed to demonstrate that reversal is warranted on this point, and we
affirm the district court's order insofar as it struck Eby's second amended
complaint.
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00) 15,47B .4gigt.,
The district court plainly erred by imposing a case-concluding sanction
without conducting the requisite analysis
We turn now to .Eby's remaining argument on appeal, which is
that the district court's decision to dismiss his malpractice claim with
prejudice was inconsistent with the court's oral pronouncement at the
hearing on respondents' motion to dismiss that it would dismiss the case
without prejudice if Eby failed to properly file an amended complaint within
30 days. Thus, he contends that the district court actually intended to
dismiss the case without prejudice and that this court should reverse the
dismissal on that ground. But this argument fails, as the written order
granting Eby leave to amend plainly stated that the court would dismiss
the case with prejudice, and written orders control over conflicting
statements made at a hearing. Kirsch v. Traber, 1.34 Nev. 163, 1.68 n.3, 414,
P.3d 818, 822 n.3 (2018). Moreover, Eby failed to properly raise this issue
before the district court and has therefore waived it. See Old Aztec Mine,
inc. v. Brown, 97 Nev. 49, 52-53, 623 P.2d 981, 983-84 (1981) (concluding
that appellant waived i.ts challenge to an alleged oversight in the district
court's order, as "[i]t was incumbent upon the appellant to direct the trial
court's attention to its asserted omission," but it failed to do so).
Because we generally decline to reach issues not properly raised
by the parties, our analysis concerning the form of the district court's order
dismissing Eby's malpractice claim would normally end here. See Senjab v.
Alhulaibi, 1.37 Nev., Adv. Op. 64, 497 .P.3d 618, 619 (2021.); Hung v. Genting
Berhad, 138 Nev., Adv. Op, 50, 513 P.3d 1285, 1288 (Ct. App. 2022). But
our "ability . . . to consider relevant issues sua sponte in order to prevent
plain error is well established." .Bradley v. Romeo, 1.02 Nev. 103, 1.05, 716
P.2d 227, 228 (1986) (characterizing "plain error" as occurring where
"clearly controlling [law] was not applied by the trial court"). And because
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the district court plainly erred by dismissing Eby's last remaining claim
with prejudice without conducting the analysis required for imposing case-
concluding sanctions under the seminal case of Young v. Johnny Ribeiro
Building, Inc., 106 Nev_ 88, 787 P_2d 777 (1.990), and its progeny, we address
this issue and reverse the district court's order dismissing Eby's malpractice
claim. See Fox v. Warren, Nos. 80668 & 81212, 2021 WL 4205697, at *1 n.1
(Nev. Sept. 1.5, 2021) (Order of Reversal and Remand) (reaching the sarne
issue sua sponte and noting that "Mlle imposition of case-concluding
sanctions without an analysis under the Young factors is plain error
because it contradicts controlling law").
In Young, our supreme court recognized that, in addition to
specific sanctioning authority provided by law, "courts have inherent
equitable powers to dismiss actions or enter default judgments
for ... abusive litigation practices." 106 Nev. at 92, 787 P.2d. at 779
(omission in original) (internal quotation marks omitted). Such sanctions
are generally reviewed for an abuse of discretion on appeal, but the Young
court held "that a somewhat heightened standard of review" applies when
the sanction is dismissal with prejudice. Id. This is because "dismissal with
prejudice is a harsh remedy to be utilized only in extreme situations," which
a court must weigh against the policy favoring disposition of cases on their
merits. Moore v. Cherry, 90 Nev. 390, 393, 528 P.2d 1018, 1021 (1974). And
"while dismissal need not be preceded by other less severe sanctions, it
should be imposed only after thoughtful consideration of all the factors
involved in a particular case." Young, 106 Nev. at 92, 787 P.2d at 780.
Finally, Young required that trial courts support every order of dismissal
with prejudice as a discovery sanction with "an express, careful and
preferably written explanation of the court's analysis of [a nonexhaustive
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list of] perti.nent factors," including, among others, "the degree of willfulness
of the offending party, the extent to which the non-offendi.ng party would be
prejudiced by a lesser sanction, ... [and] the feasibility and fairness of
alternative, less severe sanctions." ld. at 93, 787 P.2d at 780.
Although Young concerned sanctions for discovery abuses, our
supreme court has recognized its general applicability beyond this context
in situations in. which a court issues a case-terminating sanction in response
to a party's conduct in litigation. See Rish v. Simao, 132 Nev. 189, 198, 368
P.3d 1203, 1.210 (2016) (applying the heightened stand.ard of review for
case-concluding sanctions where the district court struck appellant's
answer, entered a default, and conducted a prove-up hearing after
appellant's counsel violated a pretrial order); Lane v. Allstate Ins. Co., 114
Nev. 1176, 1181, 969 P.2d 938, 941 (1.998) (reaffirrning the applicability of
Young's heightened standard of review to cases involving "abusive litigation
practices"); see also Fox; Nos. 80668 & 81212, 2021 WI, 4205697, at *2
(reversing and remanding where the district court failed to weigh the Young
factors when it dismissed appellant's complaint with prejudice after finding
that appellant engaged in misconduct by impermissibly influencing
witnesses and that appel.l.ant was vexatious). Indeed, the supreme court
has noted that, even where the circumstances of an action ending in case-
terminating sanctions are procedurally and factually distinct from those
addressed in Young, it is "[t]he magnitude of the sanction [that] brings the
action under the purview of Young." Cliamberland v. Labarbera, 110 Nev.
701, 704.-05, 877 P.2d 523, 525 (1.994); see Bahena v. Goodyear Tire &
Ru,hber Co., 126 Nev. 606, 615 n.6, 245 P.3d 1182, 1.188 n.6 (2010) (defining
case-concluding sanctions as occurring in "cases in which the complaint is
dismissed or the answer is stricken as to both liability and damages"); see
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also Francis v. Wynn Las Vegas, LLC, 127 Nev. 657, 664 n.2, 262 P.3d 705,
710 n.2 (2011) (recognizing that a dismissal without prejudice does not
implicate Young).
Here, particularly in light of the district court's change of
position concerning the form of dismissal (i.e., without prejudice to with
prejudice) from the time of the hearing on respondents' motion to dismiss to
the entry of the resulting written order directing a more definite statement
of the malpractice claim, it is not entirely clear why the district court
determined that dismissal with prejudice would be appropriate if Eby failed
to comply with the order within 30 days. Nevertheless, regardless of the
rationale, the district court's decision to dismiss the action with prejudice
after Eby failed to timely file a proper amended complaint amounted to a
case-concluding sanction fbr Eby's failure to comply with a court order. See
Rish, 1.32 Nev. at 1.98, 368 P.3d at 1210; Bahena, 126 Nev. at 615 n.6, 245
.P.3d at 1188 n.6. Indeed, NRCP 12(e) states that, "[W the court orders a
more definite statement and the order is not obeyed within . . . the time the
court sets, the court may strike the pleading or issue any other appropriate
order." And federal cases applying the identical 'Federal Rule of Civil
Procedure 12(e) have characterized the court's options in this regard as
"sanctions" fbr noncompliance with the court's order directing a more
definite statement.'2 See, e.g., Chennareddy v. Dodaro, 282 F.R.D. 9, 14.
(D.D.C. 2012) ("A party must comply with a district court order granting a
12"Federal decisions involving the Federal Rules of Civil Procedure
provide persuasive authority fbr Nevada appellate courts considering the
Nevada Rules of Civil Procedure." Venetian Casino Resort, LLC v. Eighth
Judicial Dist. Court, 1.36 Nev. 221., 225 n.7, 467 P.3d 1, 5 n_7 (Ct. App. 2020)
(alteration and internal. quotation marks omitted).
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motion for a more definite statement under Federal Rule 12(e) or run the
risk of possible sancti.ons." (internal quotation marks omitted)).
Thus, although NRCP 12(e) broadly contemplates dismissal for
noncompliance in appropriate situations, our district courts must carefully
consider the circumstances of each case when fashioning an appropriate
sanction under the rule. See Young, 1.06 Nev. at 92-93, 787 P.2d at 779-80;
Moore, 90 Nev. at 393, 528 1?.2d. at 1021; 5C Charles Alan Wright, Arthur
R. Miller & A. Benjamin Spencer, Federal Practice and Procedure § 1379
(3d ed. Supp. 2022) ("The language 'any other appropriate order,' in the text
of Rule 12(e), permits a variety of sanctions that stand midway between the
harsh course of dismissal and the relatively benign punishment of repeating
the order for a more definite statement."). In the words of one federal court
of appeals, "[w]hile it is true that [Rule 12(e)] confers power upon a court to
dismiss a claim for failure to amend the pleadings as directed, it is a power
which is n.ot to be exercised lightly, for it forecloses inquiry into the merits
of the action." Schaedler v. .Reading Eagle Publ'n, Inc., 370 F.2d 795, 797-
98 (3d Cir. 1967) (footnote onfitted). And "[t]he draconian remedy of
dismissal of the action should be invoked only as a last resort and not on
the first evidence of inability of an inarticulate plaintiff to satisfy the
requirements of the court." Id. at 799.
Given the foregoing, although some of the specific factors
identified in Young pertain to discovery abuses and are inapplicable to the
circumstances of this case, see 106 Nev. at 93, 787 P.2d at 780, the district
court was nonetheless required to support and explain its decision to
dismiss the underlying action with prejudice by analyzing the pertinent
factors, particularly "the willfulness or culpability of the offending party,
the prejudice to the non-offendi ng party caused by the [offending party's
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(Li) 194 itt
conduct], and the feasibility and fairness of alternative, less severe
sanctions," see MD.B Trucking, L.LC v. Versa Prods. Co., 136 Nev. 626, 631-
32, 475 P.3d 397, 403 (2020) (internal quotation marks ornitted) (identifying
these as the "[e]ssential[ ]" Young factors); see also Chennareddy, 282 F.R.D.
at 14. ("The court should strike an indefinite pleading without leave to
replead only when the judge is satisfied that the pleader cannot or will not
serve a pleading that will enable the opposing party to respond." (internal
quotation marks omitted)); 5C Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1379 (3d ed. 2004) (providing that, "unless
the moving party is prejud.iced by the pleader's noncompliance [with an
order directing a more definite statement], dismissal usually will not be
granted"). Requiring such an analysis under these circumstances "not only
facilitates appellate review, but a.lso impresses upon th.e district court the
severity of [the] sanction." Chamberland, 110 Nev. at 705, 877 P.2d at 525.
We therefore reverse the d.istrict court's order dismissing Eby's malpractice
claim with prejudice, and we remand this matter for further• proceedings
consistent with this opinion.
CONCLUSION
Despite the broad authority granted und.er the UPOAA, a
nonlawyer agent operating under a power of attorney concerning claims and
litigation may not litigate an action in pro se in place of the principal or
otherwise engage in the practice of law on the principal's behalf. The
d.i.strict court therefore correctly concluded that Eby's nonlawyer agent was
engaged in the unauthorized practice of law, and we affirm its decision to
strike the second amended complaint on that ground. But because the
district court dismissed the remaining malpractice claim with prejudice
without conducting the analysis required under Young v. Johnny Ribeiro
Building, Inc., 1.06 Nev. 88 787 P.2d 777 (1990), and its progeny, we reverse
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IV) 194113 .01gtO.
that dismissal and remand for further proceedings consistent with this
opinlon.
, C.J.
Tao
Bulla
4 ,000a=zumzzazst.
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