Brady Vorwerck v. New Albertson's

130 Nev., Advance Opinion
IN THE SUPREME COURT OF THE STATE OF NEVADA
a
BRADY, VORWERCK, RYDER & No. 61767
CASPINO,
Appellant, FILED
vs.
NEW ALBERTSON'S, INC.,
AUG 0 7 2014
TRIACX K. LINDEMAN
Respondent. CLERI9r„cmppiEpecIR
BY
CHIEF D
Certified question under NRAP 5 concerning whether the
statute of limitations in NRS 11.207, as revised by the Nevada Legislature
in 1997, is tolled against an action for attorney malpractice, pending the
outcome of the underlying suit in which the malpractice allegedly
occurred.' United States District Court of the District of Nevada; Gloria
M. Navarro, Judge.
Question answered.
Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno; Lipson,
Neilson, Cole, Seltzer & Garin, P.C., and Joseph Garin and Kaleb D.
Anderson, Las Vegas,
for Appellant.
Prince & Keating, LLP, and Dennis M. Prince and Eric N. Tran, Las
Vegas,
for Respondent.
'The clerk of this court shall amend the caption on this docket to
conform with the caption on this opinion.
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BEFORE THE COURT EN BANC.
OPINION
By the Court, SAITTA, J.:
Before it was amended in 1997, NRS 11.207(1) stated that an
attorney malpractice action for damages may not "be commenced more
than 4 years after the plaintiff sustains damage and discovers or through
the use of reasonable diligence should have discovered the material facts
which constitute the cause of action." NRS 11.207(1) (1981), amended by
1997 Nev. Stat., ch. 184, § 2, at 478. To the pre-1997 version of NRS
11.207(1), Nevada caselaw applied the litigation malpractice tolling rule,
which delays the commencement of a malpractice claim's statute of
limitations until the end of the litigation in which the malpractice
occurred. See, e.g., Clark v. Robison, 113 Nev. 949, 951, 944 P.2d 788, 789-
90 (1997). Since being amended in 1997, 2 NRS 11.207(1) has imposed on
attorney malpractice actions a four-year limitations period that begins
"after the plaintiff sustains damage," and a two-year statute of limitations
that starts "after the plaintiff discovers or through the use of reasonable
diligence should have discovered the material facts which constitute the
cause of action, whichever occurs earlier." As to NRS 11.207(1), the
United States District Court for the District of Nevada has certified the
following question to this court: "Whether the statute of limitations in
NRS 11.207, as revised by the Nevada [L]egislature in 1997, is tolled
2 1997 Nev. Stat., ch. 184, § 2, at 478.
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against a cause of action for attorney malpractice pending the outcome of
the underlying lawsuit in which the malpractice allegedly occurred."
With respect to the two-year statute of limitations under NRS
11.207(1), we answer this question in the affirmative. 3 After 1997, the
amended statute retained the discovery rule language to which the
litigation malpractice tolling rule has been applied in Nevada caselaw.
See Clark, 113 Nev. at 951, 944 P.2d at 789-90 (applying the litigation
malpractice tolling rule to the entirety of NRS 11.207, including the
discovery rule language). And Nevada caselaw, while not explicitly
addressing whether the tolling rule survived the statutory amendments,
has continued to implicitly recognize the rule as good law under the
amended statute. See Moon v. McDonald, Carano & Wilson L.L.P., 129
Nev. „ 306 P.3d 406, 407, 409 (2013) (indicating that the litigation
malpractice tolling rule applies to the current version of NRS 11.207(1));
Hewitt v. Allen, 118 Nev. 216, 221, 43 P.3d 345, 347-48 (2002) (stating,
albeit without citing to NRS 11.207(1), that the litigation malpractice
tolling rule delays the accrual of a malpractice action "until the plaintiff
knows, or should know, all the facts relevant to the foregoing elements
and damage has been sustained" and that damages do not accrue "until
the underlying legal action has been resolved"). Moreover, we maintain
the rule because it permits the final resolution of the damages incurred
during the litigation, including any changes on the appeal, thereby
preventing judicial resources from being spent on a claim for damages that
3 We do not discuss whether NRS 11.207(1)'s four-year time
limitation may be tolled, as that time limitation had not expired when the
malpractice action at issue was filed and thus it need not be addressed.
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may be reduced or cured during litigation. See Hewitt, 118 Nev. at 221, 43
P.3d at 348 (providing, in the context of an appeal from the litigation in
which the malpractice occurred, that the litigation malpractice tolling rule
accounts for the possibility that the damages may disappear upon
resolution of the appeal).
FACTS AND PROCEDURAL HISTORY
The federal court's certification order concerns purported
litigation malpractice. This alleged malpractice occurred in the context of
an attorney-client relationship between the appellant law firm Brady,
Vorwerck, Ryder & Caspino (BVRC), its former and now deceased attorney
W. Dennis Richardson, and their client Albertson's, Inc., which later
became New Albertson's, Inc. 4
4 In reviewing the facts and procedure, we rely on the federal district
court's articulation of that information in its certified question, but we do
so with one exception. See In re Fontainebleau Las Vegas Holdings,
L.L.C., 127 Nev. „ 267 P.3d 786, 795 (2011) (providing that the
answering court in a certified-question proceeding "is bound by the
facts . . . in the certification order"). The certification order does not
explain why respondent New Albertson's, Inc., and not Albertson's, is a
party to the proceeding For the limited purpose of providing context to
the issues that we address in responding to the certified question, we look
to the appendix that New Albertson's submitted to this court. See id.
(providing that an appendix that is submitted in a certified-question
proceeding may help give context for the issues but should not be relied on
"to contradict the certification order"). In the appendix, New Albertson's
complaint before the federal district court explains that New Albertson's
acquired Albertson's rights and liabilities. This fact is of no consequence
to our analysis, nor is it contested before this court, and we do not discuss
it further. But for the purpose of clarity, we use the name "New
Albertson's" in reference to both Albertson's and New Albertson's.
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The facts, underlying litigation, and malpractice
New Albertson's and Farm Road Retail, LLC, entered into an
agreement concerning the maintenance of a common area that they shared
between them. The agreement provided that Farm Road would
"indemnify [New] Albertson's from certain negative legal outcomes
resulting from any breach of the [agreement] by Farm Road." 5 A woman
fell on a flight of stairs at the New Albertson's location to which the
agreement applied. That woman and her husband (the claimants) filed
suit against New Albertson's and Farm Road in a Nevada district court to
recover the damages that she incurred when she fell. New Albertson's
hired BVRC for legal representation, and it assigned its attorney,
Richardson, to the case.
New Albertson's denied all liability in an answer to the
complaint. It also filed a cross-claim "against Farm Road based on Farm
Road's initial refusal to indemnify [New] Albertson's for
the . . . [c] omplaint and refusal to accept [New] Albertson's Tender of
Defense."
The claimants served New Albertson's with requests for
admission. Richardson, the BVRC lawyer, "belatedly served the responses
on behalf of [New] Albertson's." Considering that New Albertson's
responses were "untimely and allegedly deficient," the claimants "filed a
[m]otion to [c]ompel." A discovery commissioner determined that New
5 This
and all other quotes within our review of the facts and
procedural history come from the federal district court's certification
order.
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Albertson's responses were "frivolous and an insult to the court." The
district court agreed, and it ordered New Albertson's to "re-file the
responses," which Richardson did.
After New Albertson's "re-file[d] the responses," the claimants
filed a motion for partial summary judgment "on the issue of liability,
alleging that the . . . [re-filed] [r] esponses filed by Richardson knowingly
violated the [district] court's order." The district court granted the motion,
the result of which "established [New] Albertson's liability for the
[claimants] damages." It appears that the district court deemed New
Albertson's responses to the requests for admission as admitted because of
BVRC and Richardson's discovery violations.
Subsequently, the claimants and New Albertson's entered into
a settlement agreement on January 5, 2008. Following that settlement
agreement, New Albertson's cross-claim against Farm Road remained.
The district court granted summary judgment in favor of Farm Road with
respect to that cross-claim. In so doing, the district court concluded in
part that New Albertson's claims against Farm Road, including an
indemnification claim, were 'not viable. . . because [New] Albertsonfls
settlement was the direct result of discovery abuses committed by [New]
Albertson [s] ."
New Albertson's appealed the district court's summary
judgment determination to this court. But before this court could reach
the appeal's merits, New Albertson's and Farm Road entered into a
settlement agreement during a mandatory settlement conference in April
2009. As a result, this court issued an order that dismissed New
Albertson's appeal in May 2009.
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The attorney malpractice action before the federal district court
On January 22, 2010—over two years after New Albertson's
settlement with the claimants, but less than two years after New
Albertson's settlement with Farm Road and the dismissal of New
Albertson's appeal—New Albertson's filed an attorney malpractice suit
against BVRC and Richardson in a Nevada district court. At some point,
the suit was removed to the United States District Court for the District of
Nevada.
After answering the complaint, BVRC filed a motion for
summary judgment, wherein it argued that the malpractice action was
untimely filed after the expiration of NRS 11.207(1)'s two-year statute of
limitations for attorney malpractice actions. BVRC asserted that, at the
latest, NRS 11.207's two-year limitation period commenced on January 5,
2008, the date of New Albertson's settlement with the claimants.
Accordingly, it contended that New Albertson's attorney malpractice
action was untimely because it was filed over two years after that
settlement.
The federal district court denied BVRC's motion upon
concluding that NRS 11.207(1)'s two-year time limitation did not begin
until May 27, 2009, the date that this court dismissed New Albertson's
appeal that concerned its cross-claim. It concluded that New Albertson's
action against BVRC was therefore timely.
Subsequently, BVRC filed a motion to certify a question to this
court regarding NRS 11.207(1). BVRC argued that although this court
stated in the past that NRS 11.207(1)'s limitations period does not
commence for a malpractice action until the conclusion of the litigation in
which the malpractice occurred, this tolling rule, often called the litigation
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malpractice tolling rule, existed before the 1997 amendments to NRS
11.207(1). BVRC maintained that the 1997 amendments rendered the
litigation malpractice tolling rule obsolete. The federal district court
granted the motion and issued an order that certified the question that we
now answer.
DISCUSSION
BVRC contends that the litigation malpractice tolling rule no
longer applies to NRS 11.207(1). It suggests that the rule was developed
before the Legislature amended NRS 11.207(1) in 1997 and, thus, has no
application to the current version of the statute. According to BVRC, the
two-year statute of limitations in NRS 11.207(1) begins to run when a
claimant has knowledge of any amount of damages and the remaining
material facts for an attorney malpractice action, which may occur before
the completion of the litigation during which the malpractice occurred.
Based on our de nova review of the statutory language and the relevant
caselaw, we disagree with BVRC's contentions. See In re Fontainebleau
Las Vegas Holdings, L.L.C., 127 Nev. at , 267 P.3d at 794-95 (2011)
(providing that when responding to a certified question, we only answer
the legal questions and leave the federal court to apply the clarified law to
the facts before it); City of .Reno v. Reno Gazette-Journal, 119 Nev. 55, 58,
63 P.3d 1147, 1148 (2003) (stating that issues of statutory interpretation
are reviewed de novo); Banegas v. State Indus. Ins. Sys., 117 Nev. 222,
•
224, 19 P.3d 245, 247 (2001) (providing that "[q]uestions of law are
reviewed de novo"); Meguerditchian v. Smith, 284 P.3d 658, 661 (Utah Ct.
App. 2012) (noting that the interpretation of caselaw is a question of law).
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NRS 11.207(1)'s codification of the discovery rule
Generally, jurisdictions place time limitations on attorney
malpractice actions in the form of statutes of limitation and statutes of
repose. See 3 Ronald E. Mallen et al., Legal Malpractice § 23:1, at 320
(2013). As to a statute of limitations, various tolling theories may delay
the start of the time set forth in the statute. They include, but are not
limited to: (1) the occurrence rule, which starts the statute of limitations
when the lawyer commits the act of malpractice; (2) the continuous
representation rule, which starts the statute of limitations when the
attorney-client relationship ends; (3) the damage rule, which starts the
statute of limitations when the actionable damages occur, although some
jurisdictions disagree on how much damage must occur to trigger the
statute of limitations; (4) the discovery rule, which starts the statute of
limitations when the claimant discovers, or reasonably should have
discovered, the material facts for the action, including the damages; and
(5) the litigation malpractice tolling rule, which provides that the damages
for a malpractice claim do not accrue until the underlying litigation is
complete and, thus, a malpractice claim does not accrue and its statute of
limitations does not begin to run during a pending appeal of an adverse
ruling from the underlying litigation. See Moon v. McDonald, Carano &
Wilson L.L.P., 129 Nev. „ 306 P.3d 406, 407, 409 (2013) (discussing
the discovery rule that NRS 11.207(1) codifies and the litigation
malpractice tolling rule); 3 Mallen et al., supra, § 23:9, at 394-96, § 23:11,
at 425, 428-35 (explaining the damage rule, the occurrence rule, and the
continuous representation rule). Of these multiple rules, two are at issue
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in this matter: (1) the discovery rule that is codified in NRS 11.207(1), and
(2) the litigation malpractice tolling rule that appears in Nevada caselaw. 6
In 1981, the Legislature codified the discovery rule. 1981 Nev.
Stat., ch. 501, § 1, at 1023. It appeared in NRS 11.207(1), which stated:
No action against any. . . attorney. . . to recover
damages for malpractice.. . may be commenced
more than 4 years after the plaintiff sustains
damage and discovers or through the use of
reasonable diligence should have discovered the
material facts which constitute the cause of action.
NRS 11.207(1) (1981) (emphasis added) (amended in 1997). In addition,
the Legislature provided that the time limitation for a malpractice action
is tolled when the attorney conceals his actionable conduct:
This time limitation is tolled for any period during
which the . . attorney. . . conceals any act, error
or omission upon which the action is founded and
which is known or through the use of reasonable
diligence should have been known to him.
NRS 11.207(2) (1981) (hereinafter "the concealment tolling rule")
(amended in 1997). This version of NRS 11.207 required a claimant to
sustain damages in order for the four-year time limitation to start. NRS
11.207(1). But it delayed the start of the four-year limit until the
discovery of the necessary facts for an attorney malpractice claim. NRS
11.207(1) (1981) (amended in 1997).
6 While we acknowledge that the continuous representation rule may
be applicable to this matter, we do not address that theory or its place in
Nevada caselaw. We limit our discussion to what is asked within the
federal court's certification order, which narrowly concerns whether the
litigation malpractice tolling rule still applies to the statute of limitations
in NRS 11.207(1).
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In 1997, the Legislature amended NRS 11.207(1). 1997 Nev.
Stat., ch. 184, § 2, at 478. As a result, the statute places four-year and
two-year time limitations on an attorney malpractice claim:
An action against an attorney. ... to recover
damages for malpractice, whether based on a
breach of duty or contract, must be commenced
within 4 years after the plaintiff sustains damage
or within 2 years after the plaintiff discovers or
through the use of reasonable diligence should
have discovered the material facts which
constitute the cause of action, whichever occurs
earlier.
NRS 11.207(1) (emphases added). The first time limitation to expire
governs the timeliness of the malpractice action. NRS 11.207(1).
The discovery rule, the litigation malpractice tolling rule, and the
application of the latter to the former in Nevada before NRS 11.207(1) was
amended in 1997
With respect to the discovery rule, the presence of damages
partially informs when the statute of limitations begins to run. Various
jurisdictions maintain that the accumulation of some, but not necessarily
all, damages triggers an attorney malpractice claim's statute of
limitations. See, e.g., Laird v. Blacker, 828 P.2d 691, 693-96 (Cal. 1992)
(identifying that the discovery of any "appreciable" harm, or the fact of a
damage, has been held to trigger a malpractice claim's statute of
limitations and resolution of an appeal is unnecessary to the
determination); Riemers v. Omdahl, 687 N.W.2d 445, 449 (N.D. 2004)
(noting that some, but not all, incurred damage is necessary for the
statute of limitations to start under the discovery rule); Fritzeen v. Gravel,
830 A.2d 49, 52, 54 (Vt. 2003) (providing that the discovery of an injury
triggers the statute of limitations, even though the extent of the damages
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is unsettled). Some of these jurisdictions provide that ongoing litigation,
including a pending appeal from the litigation in which the malpractice
occurred, does not delay the accrual of the attorney malpractice claim.
See, e.g., Laird, 828 P.2d at 693-96 (providing that the "focus" of its statute
that codifies the discovery rule for a malpractice action "is on discovery of
the malpractice and actual injury, not success on appeal or proof of the
total amount of monetary damages suffered by the former client"
(emphasis omitted)); Fritzeen, 830 A.2d at 52, 54 (rejecting the argument
that a statute of limitations is not triggered until the damages are
finalized after the exhaustion of an appeal).
In contrast, other jurisdictions focus on the end of the
litigation during which the malpractice occurred and the finality of the
damages for the commencement of the statute of limitations. See, e.g.,
Amfac Distribution Corp. v. Miller, 673 P.2d 795, 796 (Ariz. Ct. App. 1983)
("Where there has been no final adjudication of the client's case in which
the malpractice allegedly occurred, the element of injury or damage
remains speculative and remote, thereby making premature the cause of
action for professional negligence."), approved as supplemented by 673
P.2d 792 (Ariz. 1983); Silvestrone v. Edell, 721 So, 2d 1173, 1175 & n.2
(Fla. 1998) (concluding that, with respect to the discovery rule, damages
must not be speculative but must be final for an attorney malpractice
claim's statute of limitations to start, and that finality exists when the
time for an appeal has passed or when a pending appeal has been
resolved). In such jurisdictions, the end of the litigation in which the
malpractice took place, which may include the loss or exhaustion of an
appeal, triggers the statute of limitations, because at that point the
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damages are solidified and can be ascertained. See, e.g., Amfac
Distribution Corp., 673 P.2d at 796; Silvestrone, 721 So. 2d at 1175 & n.2.
Nevada caselaw that predates the 1997 amendments to NRS
11.207(1) applied the litigation malpractice tolling rule to the discovery
rule for attorney malpractice actions. See, e.g., Clark v. Robison, 113 Nev.
949, 951, 944 P.2d 788, 789-90 (1997) (providing, with respect to the
entirety of the older version of NRS 11.207(1), that the time limitation for
an attorney malpractice action does not start until the "underlying
litigation is concluded," which includes the post-conviction appellate
process for a criminal defendant). Thus, Nevada was akin to those
jurisdictions that focus on the end of the litigation—including the appeal—
and the final accumulation of damages to trigger commencement of the
statute of limitations for an attorney malpractice claim.
The ongoing relevance and applicability of the litigation malpractice
tolling rule to NRS 11.207(1)
Although the LegiAature amended NRS 11.207(1) in 1997, the
discovery rule language to which the litigation malpractice rule has been
applied in Nevada caselaw remains. Before it was amended in 1997, NRS
11.207(1) contained language that codified the discovery rule. NRS
11.207(1) (1981) (amended 1997). The Clark court applied the litigation
malpractice tolling rule to the discovery rule language and the remaining
language within the original version of NRS 11.207(1) in determining that
an attorney malpractice claim does not accrue until the end of litigation in
which the malpractice occurred. 113 Nev. at 951, 944 P.2d at 789-90.
That discovery rule, to which the litigation malpractice rule was applied,
is still codified in the current version of NRS 11.207(1).
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Following the 1997 amendments to NRS 11.207(1), Nevada
caselaw has minimally addressed the relationship between the litigation
malpractice tolling rule and NRS 11.207(1)'s statute of limitations.
Nevertheless, the caselaw that postdates the 1997 amendment indicates
the rule's continued relevance and purpose.
In 2002, the court in Hewitt v. Allen indicated the litigation
malpractice tolling rule's ongoing presence and applicability in Nevada
caselaw when it established an exception to the rule. 118 Nev. 216, 43
P.3d 345 (2002). Although the Hewitt court did not cite to NRS 11.207(1)
in discussing when the cause of action for an attorney malpractice claim
accrues, it referenced the discovery rule, which is codified in NRS
11.207(1), when stating that generally such an action "does not accrue
until the plaintiff knows, or should know, all the facts relevant to the
foregoing elements and damage has been sustained." Id. at 221, 43 P.3d
at 347-48. The Hewitt court discussed the litigation malpractice tolling
rule's application to that rule and its rationale that a malpractice action
does not accrue until the end of the litigation, including any appeal,
because the damages sought by the action may be cured during the
litigation's progression. Id. at 221, 43 P.3d at 348. The Hewitt court,
however, crafted "a narrow exception" to the rule, providing that a
plaintiff does not give up his right to file an attorney malpractice action
when voluntarily dismissing a futile appeal from the underlying litigation
in which the malpractice occurred. Id. at 221-25, 43 P.3d at 348-50.
While Hewitt did not explicitly address NRS 11.207(1), its recognition of
an• exception to the litigation malpractice tolling rule and discussion of the
rule's basis indicate the enduring presence and approval of the rule.
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In 2013, we acknowledged in Moon that the litigation
malpractice tolling rule may delay the commencement of the two-year
statute of limitations in NRS 11.207(1) until the end of the litigation in
which the malpractice occurred. Moon, 129 Nev. at , 306 P.3d at 407.
But we concluded that the non-adversarial portions of a bankruptcy
proceeding were not litigation for the purpose of the litigation malpractice
tolling rule, and therefore they did not toll the two-year statute of
limitations under NRS 11.207(1). Id. at , 306 P.3d at 409-10. As a
result, we did not have a procedural posture that permitted us to expressly
explain how and why the litigation malpractice tolling rule was still
applicable to NRS 11.207(1) in its current composition. See id.
In response to the federal district court's certified question, we
affirm the ongoing validity and application of the litigation malpractice
tolling rule to the two-year statute of limitations in NRS 11.207(1).
Although NRS 11.207(1) was amended in 1997, those amendments have
not negated the applicability and purpose of the litigation malpractice
rule. As NRS 11.207(1) currently exists, the two-year statute of
limitations starts when "the plaintiff discovers or through the use of
reasonable diligence should have discovered the material facts which
constitute the cause of action . ..." The material facts for an attorney
malpractice action include those facts that pertain to the presence and
causation of damages on which the action is premised. See Semenza v.
Nev. Med. Liab. Ins. Co., 104 Nev. 666, 667-68, 765 P.2d 184, 185(1988)
(stating that an attorney malpractice claim is premised on an "attorney-
client relationship, a duty owed to the client by the attorney, breach of
that duty, and the breach as proximate cause of the client's damages").
When the litigation in which the• malpractice occurred continues to
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progress, the material facts that pertain to the damages still evolve as the
acts of the offending attorney may increase, decrease, or eliminate the
damages that the malpractice caused. See id. at 668, 765 P.2d at 185-86.
Hence, the need for the litigation malpractice tolling rule remains, as it
permits the litigation to end and the damages to become certain before
judicial resources are invested in entertaining the malpractice action. See
Id.; see also Silvestrone, 721 So. 2d at 1175 & n.2.
Accordingly, we uphold the applicability of the litigation
malpractice rule to the two-year statute of limitations in NRS 11.207(1).
So long as the litigation in which the malpractice occurred continues, the
damages on which the attorney malpractice action is based remain
uncertain.
CONCLUSION
Therefore, we answer the federalS district court's certified
question in the affirmative. The two-year statute of limitations in NRS
11.207, as revised by the Nevada Legislature in 1997, is tolled against a
cause of action for attorney malpractice, pending the outcome of the
underlying lawsuit in which the malpractice allegedly occurred. 7 Having
answered this question, we leave the federal district court to apply the law
that we have articulated to the facts before it. See In re Fontainebleau Las
Vegas Holdings, L.L.C., 127 Nev. „ 267 P.3d 786, 794-95 (2011)
7 We have considered the appellant's remaining contentions and
conclude that they lack merit.
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(providing that the certifying federal court decides the facts, and to those
facts it applies the law that this court states in its answer).
J.
We concur:
Gibbons
J.
J.
Hfi..tdesty
J.
Parraguirre
J.
Douglas
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