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Liberty Mut. v. Thomasson

Supreme Court of Nevada

February 6, 2014

LIBERTY MUTUAL; and Carson City Senior Citizens Center, Appellants/Cross-Respondents,
v.
Robert THOMASSON, Respondent/Cross-Appellant.

Page 832

Piscevich & Fenner, and Kimberley Fenner, and Mark J. Lenz, Reno, for Appellants/Cross-Respondents.

Nevada Attorney for Injured Workers, and W. Darrell Nedd, Senior Deputy, Carson City, for Respondent/Cross-Appellant.

BEFORE HARDESTY, PARRAGUIRRE and CHERRY, JJ.

OPINION

PARRAGUIRRE, J.:

Appellant/cross-respondent Liberty Mutual filed a petition for judicial review in the Second Judicial District Court in Washoe County, challenging an appeals officer's decision that reversed Liberty Mutual's denial of respondent/cross-appellant Robert Thomasson's workers' compensation claim. Thomasson filed a motion to dismiss, alleging that Liberty Mutual could not file its petition in the Second Judicial District because it was not a resident of Washoe County. Liberty Mutual opposed, seeking either consideration on the merits or a transfer of venue. The Second Judicial District Court transferred venue. NRS. 233B.130(2)(b) provides that a petition for judicial review of an agency determination must be filed in Carson City, the aggrieved party's county of residence, or the county where the agency proceeding occurred. We conclude that NRS 233B.130(2)(b) is a mandatory jurisdictional requirement and that because Liberty Mutual is not a resident of Washoe County, the Second Judicial District Court lacked jurisdiction to consider its petition for judicial

Page 833

review and should have dismissed it rather than transfer venue. We accordingly vacate the district court's order transferring venue and remand this matter to the district court with directions to dismiss Liberty Mutual's petition for judicial review.

FACTUAL AND PROCEDURAL HISTORY

Carson City Senior Citizens Center employed Thomasson to deliver meals to elderly persons in Carson City. In May 2010, Thomasson slipped down a flight of stairs while delivering a meal and injured his knee. Thomasson filed a workers' compensation claim for the injury, but Liberty Mutual, his employer's workers' compensation insurer, found that the injury did not occur within the scope of Thomasson's employment and denied the claim. Thomasson administratively appealed, and although the Department of Administration hearing officer affirmed Liberty Mutual's decision, the appeals officer reversed the claim denial.[1] Liberty Mutual then filed a petition for judicial review in the Second Judicial District Court in Washoe County.

Thomasson filed a motion to dismiss Liberty Mutual's petition on the ground that it did not comply with NRS 233B.130(2)(b). Thomasson argued that NRS 233B.130(2)(b) is a jurisdictional statute that specifically sets forth the courts in which a petition for judicial review may be filed, and because Liberty Mutual is not a resident of Washoe County, the petition did not comply with the statutory residency requirement. In opposition, Liberty Mutual argued that since it has an office in Reno, venue was proper and, in the alternative, the motion to dismiss should be treated as a motion to transfer venue. The district court agreed with Thomasson that filing the petition in the Second Judicial District Court was improper, but the court granted Liberty Mutual's request to treat the motion to dismiss as a motion to transfer venue. Accordingly, the district court ordered that the case be transferred to the First Judicial District Court in Carson City. The parties now bring this appeal and cross-appeal.

DISCUSSION

In addressing the district court's order transferring venue, we must first consider the threshold issue of jurisdiction raised by Thomasson's cross-appeal. We conclude that NRS 233B.130(2)(b) is mandatory and jurisdictional and that because Liberty Mutual is not a resident of Washoe County, the petition failed to satisfy the jurisdictional burden imposed by NRS 233B.130(2)(b). As a result, the Second Judicial District Court lacked jurisdiction over the matter. Furthermore, because NRS 233B.130(2)(c) provides that the petition must be brought within 30 days and that time period has passed, Liberty Mutual cannot amend or refile its petition to correct the deficiency. We ...


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