PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF NEVADA, A PUBLIC AGENCY, A PUBLIC ENTITY AND COMPONENT OF THE STATE OF NEVADA, Appellant,
SHAE E. GITTER, AN INDIVIDUAL; AND JARED SHAFER, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF KRISTINE JO FRESHMAN, Respondents. PUBLIC EMPLOYEES' RETIREMENT SYSTEM OF NEVADA, A PUBLIC ENTITY AND COMPONENT UNIT OF THE STATE OF NEVADA, Appellant,
SHAE E. GITTER, AN INDIVIDUAL; AND JARED SHAFER, AS SPECIAL ADMINISTRATOR OF THE ESTATE OF KRISTINE JO FRESHMAN, Respondents. W. CHRIS WICKER; AND WOODBURN AND WEDGE, Petitioners,
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE JAMES CROCKETT, DISTRICT JUDGE, Respondents, and SHAE E. GITTER; AND JARED SHAFER, Real Parties in Interest.
appeals from a district court judgment and post-judgment
awards of interest, fees, and costs, and an original petition
for a writ of mandamus challenging an award of attorney fees.
Eighth Judicial District Court, Clark County; James Crockett,
Woodburn & Wedge and W. Chris Wicker and Joshua M.
Woodbury, Reno, for Public Employees' Retirement System
of Nevada, W. Chris Wicker, and Woodburn and Wedge.
Christopher G. Nielsen, Carson City, for Public
Employees' Retirement System of Nevada.
Kennedy and Dennis L. Kennedy, Kelly B. Stout, and Amanda L.
Stevens, Las Vegas, for Shae E. Gitter and Jared Shafer, as
Special Administrator of the Estate of Kristine Jo Freshman.
THE COURT EN BANC.
consolidated matter, we are asked to determine whether (1)
Nevada's general slayer statutes apply to the Public
Employees' Retirement Act (PERS Act) for the purposes of
determining payment of survivor benefits, (2) the Public
Employees' Retirement System of Nevada (PERS) is exempted
from paying prejudgment or post-judgment interest out of the
PERS trust fund, (3) an expert consultant must testify to
recover $1, 500 or less in costs for that expert under NRS
18, 005(5), and (4) attorney fees were appropriate under NRS
7.085 and 18.010. We hold that Nevada's general slayer
statutes are applicable to the PERS Act so that any person
who kills their PERS-member spouse must be treated as if they
predeceased the PERS-member spouse for the purposes of
determining payment of survivor benefits. In such a case, the
PERS member shall be treated as unmarried at the time of his
or her death so that benefits may be paid to a survivor
beneficiary. We also hold that PERS is not exempt from paying
prejudgment or post-judgment interest, though interest should
have been awarded in this case under NRS 17.130. We further
hold it is within the district court's discretion to
award up to $1, 500 in reasonable costs for a nontestifying
expert consultant under NRS 18.005(5). Finally, we reverse
the award of attorney fees, which we conclude should not have
been awarded under NRS 7.085 and 18.010.
AND PROCEDURAL HISTORY
Jo Freshman was employed by the Clark County School District
and a member of PERS for 24 years. In 2009, Kristine was
killed by her husband, Walter Freshman. Walter pleaded guilty
to second-degree murder and was adjudicated a killer as
defined by NRS 41B.130 the following year. Before her death,
Kristine designated her daughter, Shae E. Gitter, as her
survivor beneficiary. PERS survivor benefits
2011, Gitter applied to PERS for survivor benefits. PERS
denied Gitter's request, indicating the following in its
NRS 286.671 [et seq.] governs [PERS] regarding benefits for
survivors. In the case of a member who was married at the
time of death, the member's spouse and minor children are
the persons eligible to receive benefits.
NRS 286.669 provides that if the spouse is convicted of the
murder or voluntary manslaughter of a member of [PERS], the
spouse is ineligible to receive any benefit conferred by any
provision of the [PERS Act] by reason of death of that
member. Neither this provision, nor any other provision in
the [PERS Act], makes any other person eligible to receive
such benefit. Based upon the previously mentioned statutes,
[PERS] is unable to pay benefits pursuant to your
retaining legal representation, Gitter and respondent Jared
Shafer, as special administrator of the Estate of Kristine Jo
Freshman (Kristine's Estate or, collectively, Gitter),
requested copies of Kristine's PERS records. PERS
indicated it was unable to release records to Gitter or
Kristine's Estate because neither was entitled to
survivor benefits. Ultimately, Gitter petitioned the probate
court and obtained a court order instructing PERS to provide
copies of Kristine's records.
PERS produced Kristine's records, Gitter and
Kristine's Estate filed suit seeking to collect
Gitter's survivor benefits. On Gitter's motion for
partial summary judgment, the district court granted
Gitter's claim for declaratory relief establishing that
NRS Chapter 41B (Nevada's slayer statutes) is applicable
to NRS Chapter 286 (the PERS Act). Specifically, the district
court found as follows:
NRS Chapter 41B applies to PERS benefits for survivors of a
deceased PERS member, including, but not limited to Spousal
Benefits and benefits for a survivor beneficiary pursuant to
. . . Pursuant to NRS 41B.310(3), [Walter] is deemed to have
predeceased [Kristine] for the purposes of determining
entitlement to PERS benefits for survivors as set forth in
NRS 286.671-286.679, inclusive.
. . . Pursuant to NRS 41B, 310(3), PERS shall treat
[Kristine] as being unmarried at the time of her death for
the purpose of determining entitlement to PERS benefits for
. . . Gitter is entitled to survivor benefits as set forth in
NRS 286.6767-286.6769, inclusive.
light of the district court's summary judgment order, the
parties stipulated to the amount of back payments that PERS
owed to Gitter: $203, 231.76. However, Gitter filed a motion
seeking prejudgment and post-judgment interest after PERS
asserted it was not permitted to pay interest under the PERS
Act. Gitter argued PERS owed prejudgment and post-judgment
interest under NRS 99.040(1)(a), NRS 99.040(1)(c), or NRS
17.130. PERS argued it was not obligated to pay interest
because interest is not identified as an expense that may be
paid from the PERS trust fund pursuant to NRS 286.220(4).
district court granted Gitter's motion and, in its
judgment on the amounts due, ordered PERS to pay interest
under NRS 99.040(1)(a). The district court found that in
1986, Kristine and her qualified employer entered into a
contract, which "includes eligibility for PERS benefits
(including survivor benefits) as part of its compensation
package" and "does not fix a rate of interest for
any portion of the compensation due thereunder."
Expert witness fees
later filed a memorandum of costs and disbursements, which
included $5, 000 in expert witness fees as costs for a
financial consultant. Gitter provided the district court with
the financial consultant's invoice and curriculum vitae.
PERS moved to retax costs, challenging the $5, 000 in fees
paid to a nontestifying expert. The district court found
"[i]t was reasonable for Gitter to retain a financial
consultant to review amounts calculated by PERS and calculate
interest amounts, " and that the financial consultant
was qualified to do so, even though the consultant was not
disclosed as an expert witness. Additionally, the district
court found that Nevada law was unclear as to whether fees
could be recovered in excess of $1, 500 for nontestifying
experts. Because the consultant was not deposed and did not
present any testimony, reports, or affidavits, the district
court could not evaluate whether excess costs were
appropriate. Thus, the district court granted PERS's
motion in part, limiting the expert costs to $1, 500 pursuant
to NRS 18.005(5). Attorney fees
also filed a motion for attorney fees pursuant to NRS 7.085
and 18.010, seeking $96, 272.50 and arguing that PERS and its
counsel repeatedly took unreasonable positions that were
unsupported by Nevada law. At a hearing on the motion, PERS
and its counsel maintained that its defense was well grounded
and based on a reasonable interpretation of the PERS Act.
Nonetheless, the district court granted ...