Shepherd v. Scott

 Having considered appellant's opening brief and the record on
appeal, we conclude that the district court properly denied appellant's
request for declaratory relief." See Nevadans for Neu. v. Beers, 122 Nev.
930, 942, 142 P.3d 339, 347 (2006) (explaining that this court reviews de
nova a district court's order denying declaratory relief when there are no
factual disputes). The judicial estoppel doctrine generally applies when
four factors are met: (1) a party has taken two inconsistent positions, (2)
the party asserted those positions in judicial or quasi-judicial proceedings,
(3) the party successfully asserted the first position, and (4) "the first
position was not taken as a result of ignorance, fraud, or mistake."
NOLM, LLC v. Cnty. of Clark, 120 Nev. 736, 743, 100 P.3d 658, 663 (2004)
(internal quotation marks omitted). Not all factors must be met in order
to successfully apply the doctrine. See Mai nor v. Nault, 120 Nev. 750, 765,
101 P.3d 308, 318 (2004).
Appellant represented in her petition to adopt the child that
respondent was the child's natural father and then requested to adopt the
child as respondent's wife. Appellant did not assert below or on appeal
that her representation regarding respondent's paternity in the adoption
petition was a result of her ignorance, a fraud upon her, or her mistake.
The evidence presented below established that the parties chose to hold
respondent out as the child's natural father despite their knowledge that
'Because respondent failed to serve his response brief, as directed in
this court's March 24, 2014, order, we direct the clerk of this court to
strike the proper person response filed on October 17, 2013.
SUPREME COURT
OF
NEVADA
2
. (0) 1907A e
he was not the child's natural father, in an effort to expedite the adoption
proceedings, and thus, the doctrine of judicial estoppel is applicable here.
See Sterling Builders, Inc. v. Fuhrman, 80 Nev. 543, 550, 396 P.2d 850,
854 (1964) (providing that the purpose of the doctrine "is to suppress
fraud, and to prohibit the deliberate shifting of position to suit exigencies
of each particular case that may arise" (internal quotation omitted)).
While our dissenting colleague concludes that judicial estoppel was
wrongly applied because respondent's paternity was not litigated in the
adoption proceeding, Nevada authority clearly provides that once a party
asserts that a fact is true in a pleading, the party is barred from denying
the same fact in a subsequent proceeding. See Vaile v. Eighth Judicial
Dist. Court, 118 Nev. 262, 273, 44 P.3d 506, 514 (2002); see also Sterling
Builders, 80 Nev. at 549, 396 P.2d at 854 (recognizing that a party is
estopped from maintaining a position, if the party has alleged a contrary
position in his or her pleadings in a former proceeding). Moreover,
respondent's paternity was a significant fact in the adoption proceeding
because by asserting that respondent was the child's natural father,
appellant did not have to obtain consent for the adoption from the child's
true natural father. See NRS 127.040(1) (requiring consent to adopt from
both parents). Thus, as the factors for the application of the judicial
estoppel doctrine are present here, we conclude that the district court
properly concluded that appellant's request for declaratory relief was
barred by judicial estoppel. See NOLM, 120 Nev. at 743, 100 P.3d at 663
SUPREME COURT
OF
NEVADA
3
KO) 1947A e
(providing that "[w]hether judicial estoppel applies is a question of law
subject to de novo review"). Accordingly, we
ORDER the judgment of the district court AFFIRMED. 2
• TaltA cz-.C; J.
Parraguirre
Saitta
7 C+
411
cc: Hon. T. Arthur Ritchie, Jr., District Judge, Family Court Division
Willick Law Group
Gene Edmond Scott
Eighth District Court Clerk
2 We further conclude that while the child should have been properly
made a party to the action under NRS 126.101(1) (2007), the district
court's failure to require the joinder of the child was harmless error as the
2013 amendment of NRS 126.101(1) no longer requires such joinder and
the doctrine of judicial estoppel was properly applied to bar appellant's
requested relief.
SUPREME COURT
OF
NEVADA
4
(0) (94Th
PICKERING, J., dissenting:
I would vacate the district court's order denying appellant's
request for declaratory relief because the child was not properly made a
party and because the doctrine of judicial estoppel does not apply where,
as here, the prior inconsistent position was a matter of assumption that
was neither debated by the parties nor decided by the court.
As an initial matter, when the underlying complaint for
declaratory relief was filed, the child was, by statute, required to be made
a party to an action to determine paternity and to be represented in such
an action by a guardian other than the child's mother or father. NRS
126.101(1) (2007) (providing that the child must be made a party to an
action to determine paternity, and if no general guardian other than the
child's parents is available to represent the child, the appointment of a
guardian ad litem is required); see also Schwob v. Hemsath, 98 Nev. 293,
294, 646 P.2d 1212, 1212 (1982) (explaining that the "RI ailure to join an
indispensable party is fatal to a judgment and may be raised by an
appellate court sua sponte"); St. Mary v. Damon, 129 Nev. , n.4, 309
P.3d 1027, 1036 n.4 (2013) (recognizing that a child may need to be joined
as a party in an action to determine parentage under NRS 126.101(1)).
Although the underlying complaint named the child, he was not a party to
the action because he was never served with process, see Albert D. Massi,
Ltd. v. Bellmyre, 111 Nev. 1520, 1521, 908 P.2d 705, 706 (1995)
(explaining that to qualify as a party, a person must have been named and
served), and no guardian ad litem was appointed to represent him. True,
after the entry of the district court's order, NRS 126.101(1) was amended
to give the district court discretion as to whether the child should be joined
SUPREME COURT
OF
NEVADA
(0) 1947A
as a party and a guardian ad litem appointed, but even so, the matter of
parentage is important enough that the district court should at least
consider joinder and appointment of someone to evaluate and, if
appropriate, advocate the position of the child. NRS 126.101(1) (amended
2013). Because the underlying action requested a declaration as to
paternity, I would vacate the district court's order and remand this matter
for the district court to consider and decide these issues.
I would also reverse the district court's application of judicial
estoppel in this matter. See NOLM, LLC v. Cnty. of Clark, 120 Nev. 736,
743, 100 P.3d 658, 663 (2004) (providing that "[w]hether judicial estoppel
applies is a question of law subject to de novo review"). The doctrine of
judicial estoppel should be sparingly applied, see Mainor v. Nault, 120
Nev. 750, 765, 101 P.3d 308, 318 (2004), only in cases where a party has
taken two inconsistent positions in judicial or quasi-judicial proceedings,
the party successfully asserted the first position, and the party did not take
the first position as a result of ignorance, fraud, or mistake. NOLM, 120
Nev. at 743, 100 P.3d at 663. In this case, whether the respondent was
the child's biological father was neither contested nor resolved in the
proceeding to allow the appellant to adopt the child. See generally Mainor,
120 Nev. at 766, 101 P.3d at 319 (deeming judicial estoppel inapplicable
because the party had not successfully asserted an inconsistent position in
a prior proceeding as the district court's approval of a settlement
agreement did not amount to a judicial endorsement of the party's
position); Breliant v. Preferred Equities Corp., 112 Nev. 663, 669, 918 P.2d
314, 318 (1996) (concluding that the application of judicial estoppel would
be inappropriate when a party has not successfully asserted a previous
position). And because the issue of whether respondent was the child's
SUPREME COURT
OF
NEVADA
2
(0) 194Th e
natural father was not litigated in the adoption proceeding, resort to
judicial estoppel to resolve the case is inappropriate. See Bank of Amer.
Nat'l Trust & Savings Ass'n v. Maricopa Cnty., 993 P.2d 1137, 1140 (Ariz.
Ct. App. 1999) (providing that in order for a party to have succeeded on
asserting the prior position in the initial proceeding, that position must
have been a significant point in that proceeding); see also Allen v. Zurich
Ins. Co., 667 F.2d 1162, 1167 (4th Cir. 1982) (explaining that a party's
assertion of an earlier legally irrelevant position does not warrant the
application of judicial estoppel).
For these reasons, I would vacate the district court's order and
remand for proceedings to consider whether the child should be properly
joined and then to decide the matter on a basis other than judicial
estoppel.
, J.
SUPREME COURT
OF
NEVADA 3
:11 1947A
(1