petition for writ of mandamus challenging an order denying a
motion to dismiss based on the failure to timely substitute
the representative of a deceased party under NRCP 25.
Petition granted in part.
Silvestri and Jeffrey J. Orr, Las Vegas; Solomon Dwiggins
& Freer, Ltd., and Alexander G. LeVeque and Tess E.
Johnson, Las Vegas, for Petitioner.
Campbell & Williams and J. Colby Williams and Philip R.
Erwin, Las Vegas; Glen Lerner Injury Attorneys and Corey M.
Eschweiler, Las Vegas; Weinberg Wheeler Hudgins Gunn &
Dial and Lee Roberts, Las Vegas, for Real Parties in
HARDESTY, STIGLICH and SILVER, JJ.
procedure for substituting a successor or representative in
place of a deceased party to a civil action is governed by
NRCP 25(a)(1). Under that rule, the filing and service of a
suggestion of death triggers a deadline to file a motion to
substitute a successor or representative in place of the
deceased party. Once the deadline is triggered, the court
must dismiss the action if a motion to substitute is not
filed before the deadline expires.
original proceeding, we reconsider Barto v.
Weishaar, 101 Nev. 27, 692 P.2d 498 (1985), and its
conclusion that a suggestion of; death emanating from the
deceased party must identify the deceased party's
successor or representative in order to trigger the deadline
in NRCP 25(a)(1) to file a motion to substitute. Although we
acknowledge the importance of precedent, we are convinced
that Barto expanded NRCP 25(a)(1) beyond its plain
language. Therefore, we overrule Barto and hold that
a suggestion of death that is properly served triggers the
deadline for filing a motion to substitute regardless of
which party files it and whether it identifies the deceased
party's successor or representative.
counsel for petitioner James McNamee filed and served a
suggestion of death after McNamee died. Under the controlling
authority at that time, the suggestion of death did not
trigger the deadline for filing a motion to substitute
because it did not identify McNamee's successor or
representative. The district court therefore was not required
by law to dismiss the action as to McNamee. Accordingly, we
deny the petition to the extent it challenges the district
court's order denying the motion to dismiss based on NRCP
25(a)(1). But we conclude the district court arbitrarily or
capriciously exercised its discretion when it denied
McNamee's motion to" substitute based solely on the
court's preference that someone other than the special
administrator appointed by the probate court be appointed as
administrator of McNamee's estate. Thus, we grant relief
AND PROCEDURAL HISTORY
McNamee rear-ended another vehicle at a red light. Giann
Bianchi was driving the other vehicle, and Dara
Delpriore was in the front passenger seat; both
suffered injuries as a result of the collision. Bianchi sued
McNamee for damages caused by the collision, alleging
negligence and negligence per se.
the pending litigation, McNamee died. McNamee's attorney
filed and served Bianchi with a suggestion of death on
September 20, 2017. The suggestion of death did not name a
successor or representative. On the same day, McNamee's
attorney filed a petition for special letters in the probate
court, naming Susan Clokey, an employee of the law firm
representing McNamee, as petitioner. The probate court
granted the petition and appointed Clokey as special
administrator for the limited purpose of defending
Bianchi's negligence suit and distributing any insurance
policy proceeds therein.
attorney then filed a motion to substitute the special
administrator for McNamee as the party defendant in the
negligence suit on December 14, 2017, just shy of 90 days
after he filed the suggestion of death. The district court
orally denied the motion and directed the parties to submit
three names for the court to consider as administrators for
McNamee's estate. The district court subsequently entered
a written order denying the motion to substitute Clokey and
naming Fred Waid as general administrator of McNamee's
estate. McNamee's attorney then moved to dismiss the
personal injury case, asserting that his motion to substitute
had been denied and no other motion to substitute had been
filed within the 90-day deadline under NRCP
25(aXD. The district court denied McNamee's
motion to dismiss and granted his related motion to amend its
prior order, appointing Fred Waid as special and general
administrator of McNamee's estate and substituting Waid
in that capacity as the defendant in place of McNamee. This
petition for a writ of mandamus followed.
of mandamus is available to compel the performance of an act
that the law requires or to control an arbitrary or
capricious exercise of discretion. NRS 34.160; Int'l
Game Tech., Inc. v. Second Judicial Dist.Court,124 Nev. 193, 197, 179 P.3d 556, 558 (2008).
Whether a writ of I mandamus will be issued is within the
appellate court's sole discretion. Smith v. Eighth
Judicial Dist. Court,107 Nev. 674, 677, 818 P.2d 849,
851 (1991). Generally, this court does not entertain mandamus
petitions challenging orders denying motions to dismiss.
State ex rel. Dep't of Transp. v. Thompson, 99
Nev. 358, 362, 662 P.2d 1338, 1340 (1983). However, we allow
"very few exceptions where considerations of sound
judicial economy and administration militate [ ] in favor of
granting such petitions." Smith v. Eighth Judicial
Dist. Court,113 Nev. 1343, 1344, 950 P.2d 280, 281
(1997). And writ relief may be warranted if the record
reflects clear legal error or manifest abuse of discretion by
the district court, or when an important issue of law
requires clarification. Archon Corp. v. Eighth ...