Berkson v. LePome

245 P.3d 560, 126 Nev. 492, 126 Nev. Adv. Rep. 46, 2010 Nev. LEXIS 50
CourtNevada Supreme Court
DecidedDecember 16, 2010
Docket49261
StatusPublished
Cited by23 cases

This text of 245 P.3d 560 (Berkson v. LePome) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berkson v. LePome, 245 P.3d 560, 126 Nev. 492, 126 Nev. Adv. Rep. 46, 2010 Nev. LEXIS 50 (Neb. 2010).

Opinions

[494]*494OPINION

By the Court,

Hardesty, J.:

For the first time, we consider NRS 11.340, a statute enacted by the Legislature in 19 ll2 that provides a plaintiff whose judgment is subsequently reversed on appeal with the right to file a new action within one year after the reversal. We conclude that this [495]*495statute violates the separation of powers doctrine because it unconstitutionally interferes with the judiciary’s authority to manage the judicial process and this court’s ability to finally resolve matters on appeal by precluding subsequent and repetitive efforts to re-litigate the same claims. As we strike NRS 11.340, we necessarily examine the district court’s dismissal of the underlying action on preclusion grounds. We affirm the district court’s order because appellants relied solely on NRS 11.340 and failed to provide any arguments to explain why claim and issue preclusion should not apply. Finally, we conclude that the district court abused its discretion in awarding attorney fees and costs to respondents to sanction appellants for filing a frivolous complaint, and therefore, we reverse the post-judgment attorney fees and costs award to respondents.

BACKGROUND AND PROCEDURAL HISTORY

In 2001, respondent Howard Bloom filed a petition in the district court seeking the appointment of special administrators for the estate of Rose Miller. The petition was subsequently opposed by two of Miller’s nieces, appellants Marilyn Berkson and Gertrude Malacky, on the grounds of undue influence and a lack of testamentary capacity. Bloom also filed a separate petition for the appointment of a trustee regarding the Rose Miller Living Trust, which was also opposed by appellants on the same grounds. Berk-son and Malacky subsequently filed a civil complaint in district court against respondent Barbara LePome. These three actions were ultimately consolidated by the district court, which later dismissed Berkson and Malacky’s civil complaint, concluding that the causes of action raised were either not recognized in Nevada or were duplicative of the claims raised in the estate and trust actions. In 2004, the district court dismissed the lack-of-testamentary-capacity claims pending in the estate and trust actions and concluded that the sole issue remaining for trial was the undue influence issue. At the trial, the jury found in favor of Berkson and Malacky, but this court reversed that judgment on appeal, in a July 12, 2006, unpublished order, concluding that the jury’s verdict was not supported by substantial evidence.

Thereafter, in November 2006, Berkson and Malacky filed a new complaint in district court asserting claims for undue influence, breach of contract, fraud, elder abuse and neglect, intentional misstatement of facts, negligence, conspiracy and per se violation of Nevada law, and misconduct. Their complaint also sought attorney fees and costs. This complaint continued the litigation against Barbara LePome and Bloom and added respondents Robert LePome, John Gorman, and Richard Donaldson as additional defendants. Respondents moved the district court to dismiss [496]*496the complaint based on, among other things, their assertion that the complaint was barred by claim and issue preclusion. The district court subsequently entered an order summarily granting the motion to dismiss the complaint “in its entirety” over Berkson and Malacky’s opposition. Berkson and Malacky have now appealed the district court’s dismissal order. After the notice of appeal was filed, the district court awarded respondents attorney fees and costs to sanction Berkson and Malacky for filing a frivolous complaint. Berkson and Malacky have also appealed from this post-judgment award.

DISCUSSION

We begin our discussion of the issues presented in this appeal by addressing Berkson and Malacky’s challenge to the district court’s application of the doctrines of claim and issue preclusion to their complaint. After concluding that the district court properly dismissed the underlying complaint on this basis, we then turn to Berkson and Malacky’s appellate arguments related to the post-judgment award of attorney fees and costs to respondents, which, for the reasons set forth below, we conclude must be reversed.3

Dismissal of Berkson and Malacky’s complaint

On appeal, Berkson and Malacky argue that the district court erred in dismissing their complaint because NRS 11.340 clearly and unambiguously granted them the right to file a new complaint after this court reversed the jury verdict in their favor. NRS 11.340 provides that

[i]f an action shall be commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on appeal, the plaintiff, or if the plaintiff dies and the cause of action survives, the plaintiff’s heirs or representatives, may commence a new action within 1 year after the reversal.

According to Berkson and Malacky, because NRS 11.340 authorizes the filing of a new complaint after the reversal on appeal of a judgment in their favor, that statute necessarily precludes the application of claim and issue preclusion to their new complaint, and thus, the district court’s dismissal of their complaint on such grounds was improper. This court has not previously addressed [497]*497NRS 11.340, which has not been substantively amended or altered since its enactment.4

Words in a statute will be given their plain meaning unless such an approach would violate the spirit of the act. V & S Railway v. White Pine County, 125 Nev. 233, 239, 211 P.3d 879, 882 (2009). Further, a statute will be construed in order to give meaning to its entirety, and this court ‘ ‘ ‘will read each sentence, phrase, and word to render it meaningful within the context of the purpose of the legislation.’ ” Harris Assocs. v. Clark County Sch. Dist., 119 Nev. 638, 642, 81 P.3d 532, 534 (2003) (quoting Coast Hotels v. State, Labor Comm’n, 117 Nev. 835, 841, 34 P.3d 546, 550 (2001)).

As Berkson and Malacky correctly point out, the plain language of NRS 11.340 explicitly authorized their filing of a new action after this court reversed the judgment in their favor on appeal. And if NRS 11.340 is to have any real effect, it necessarily follows that the doctrines of claim and issue preclusion could not be applied to bar a new action filed based on that statute.

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Bluebook (online)
245 P.3d 560, 126 Nev. 492, 126 Nev. Adv. Rep. 46, 2010 Nev. LEXIS 50, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berkson-v-lepome-nev-2010.