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Alper v. Eighth Judicial District Court of Nevada

Supreme Court of Nevada

June 25, 2015

ELIOT A. ALPER, TRUSTEE OF THE ELIOT A. ALPER REVOCABLE TRUST; SPACEFINDERS REALTY, INC.; AND THE ALPER LIMITED PARTNERSHIP, Petitioners,
v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE CHARLES M. MCGEE, DISTRICT JUDGE, Respondents, and WILLIAM W. PLISE, Real Part in Interest

Original petition for a writ of prohibition or mandamus challenging a district court order imposing contempt sanctions.

Petition granted.

Edward J. Hanigan, Henderson, for Petitioners.

Cremen Law Offices and Frank J. Cremen, Las Vegas, for Real Party in Interest.

HARDESTY, C.J. We concur: Parraguirre, J. Cherry, J. Gibbons, J. Douglas, J. Saitta, J. Pickering, J.

OPINION

BEFORE THE COURT EN BANC.

HARDESTY, C.J.:

A bankruptcy court entered an order lifting the automatic stay to permit the district court to determine whether a judgment debtor's prior refusals to participate in debtor's examinations in the district court were subject to criminal contempt. The automatic

Page 29

stay provisions of the Bankruptcy Code do not stay " the commencement or continuation of a criminal action or proceeding against the debtor." 11 U.S.C. § 362(b)(1) (2012). In this writ proceeding, we must determine whether the subsequent district court order finding the judgment debtor in contempt but allowing him to avoid incarceration by participating in a debtor's examination exceeded the scope of the bankruptcy court's lift stay order. We conclude that it did because a contempt order that permits a judgment debtor to purge incarceration is civil in nature. We, therefore, grant the writ of prohibition.

FACTS AND PROCEDURAL HISTORY

In August 2010, the district court entered judgment in excess of $16,000,000 against real party in interest William Plise and in favor of petitioner Eliot Alper.[1] Thereafter, Alper obtained an order for examination of Plise's assets and liabilities to satisfy the judgment.

Plise did not attend the first scheduled debtor's examination, and Alper moved for an order to show cause why Plise should not be held in contempt of court. The district court ordered Plise to appear, produce documents, and fully comply with the order or he would be held in contempt of court.

Plise appeared at the next scheduled exam, but asserted a Fifth Amendment privilege in response to every question except his name. Alper filed a status report indicating Plise did not produce the documents the court previously ordered him to produce, nor did he answer questions during the exam. At a subsequent status hearing, the district court ordered Plise to answer Alper's questions. Alper scheduled a new debtor's examination, and Plise requested several continuances, but ultimately Plise did not appear. Fifteen days later, Alper sought an order to ...


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