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McNamee v. Eighth Judicial District Court of State

Supreme Court of Nevada

October 17, 2019

JAMES MCNAMEE, Petitioner,
v.
THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; ANDTHE HONORABLE DOUGLAS SMITH, DISTRICT JUDGE, Respondents, and GIANN BIANCHI; AND DARA DELPRIORE, Real Parties in Interest.

         Original 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.

          Pyatt 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 Interest.

          BEFORE HARDESTY, STIGLICH and SILVER, JJ.

          OPINION

          SILVER, J.

         The 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.

         In this 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.[1]

         Here, 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 in part.

         FACTS AND PROCEDURAL HISTORY

         James McNamee rear-ended another vehicle at a red light. Giann Bianchi was driving the other vehicle, and Dara Delpriore[2] 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.

         During 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.

         McNamee's 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.[3] 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.

         DISCUSSION

         A writ 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 ...


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