Gonor v. Dale

432 P.3d 723
CourtNevada Supreme Court
DecidedDecember 27, 2018
DocketNo. 72949
StatusPublished
Cited by6 cases

This text of 432 P.3d 723 (Gonor v. Dale) 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
Gonor v. Dale, 432 P.3d 723 (Neb. 2018).

Opinion

By the Court, DOUGLAS, C.J.:

*724In this appeal, we address whether the deceased party's actual date of death, or the suggestion of death filed on the record, triggers the 90-day time limitation prescribed in NRCP 25(a)(1) under which a motion to substitute the proper party in place of the deceased party must be filed in order to preclude dismissal. We hold that the latter triggers the 90-day limitation period. In this case, the plaintiff's attorney in the underlying proceeding filed two motions seeking to substitute for the deceased plaintiff after the defendant filed the suggestion of death on the record. Although both motions were filed within the 90-day period, the motions failed to identify the proper party for substitution under NRS 41.100. Accordingly, we affirm the district court's order dismissing the underlying complaint.

FACTS AND PROCEDURAL HISTORY

Irwin Gonor initiated the underlying intentional interference of contractual relations action against respondents Richard J. Dale; Kelly Mayer; Rick's Restorations, Inc.; Kiki T's LLC; Making History LLC; and Bookin' It LLC. During the pendency of the suit, Gonor passed away on June 2, 2016. Shortly after Gonor's death, Gonor's attorney1 engaged in settlement negotiations with respondents, at the direction of Gonor's mother and sole heir, Shirley Hoffner. The parties reached an agreement, and respondents forwarded a proposed settlement agreement to Gonor's attorney, which was returned to respondents with Hoffner's signature. Respondents first learned of Gonor's passing after questioning Hoffner's signature on the agreement.

On October 26, 2016, respondents filed a suggestion of death with the district court and served it on Gonor's attorney. On November 19, 2016, Gonor's attorney filed a motion to amend the complaint, which sought to designate Hoffner as plaintiff on the basis that she was Gonor's sole heir, or in the alternative, to allow an additional 120 days under NRCP 6(b) to open the estate of Irwin Gonor. Respondents filed an opposition and a countermotion to dismiss the case as untimely pursuant to NRCP 25(a)(1), and for failure to identify the proper party for substitution under NRS 41.100. After a hearing, the district court denied the motion to amend and granted respondents' motion to dismiss, finding that Gonor's attorney had not filed a motion to substitute within 90 days of Gonor's actual date of death.

On January 24, 2017, Gonor's attorney filed a second motion to amend the complaint, requesting to substitute appellant, the estate of Irvin Gonor, as plaintiff. On February 27, 2017, the probate court appointed appellant Robert Womble as special administrator for Gonor's estate. At a hearing held on March 28, 2017, the district court noted that it considered the second motion to amend to be a motion for reconsideration. The district court denied the second motion to amend and dismissed the case with prejudice. This appeal followed.

DISCUSSION

Standard of review

This appeal requires statutory interpretation of NRCP 25 and NRS 41.100, which are questions of law that we review de novo. See J.D. Constr., Inc. v. IBEX Int'l Grp., LLC , 126 Nev. 366, 375, 240 P.3d 1033, 1039 (2010). This court has repeatedly stated that we will not look beyond a rule's plain language when it is clear on its face.

*725Zohar v. Zbiegien , 130 Nev. 733, 737, 334 P.3d 402, 405 (2014).

The suggestion of death filed on the record by service triggers the 90-day time period under NRCP 25

Appellants contend that the district court erred in concluding that Gonor's date of death triggered the 90-day period; rather, the 90-day period was not triggered until the suggestion of death was filed on the record. We agree.

Pursuant to NRCP 25(a)(1),

[i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion , the action shall be dismissed as to the deceased party.

(Emphasis added.) A plain reading of NRCP 25(a)(1) mandates that the suggestion of death be filed on the record in order to trigger the 90-day period. Moseley v. Eighth Judicial Dist. Court , 124 Nev. 654, 659, 188 P.3d 1136, 1140 (2008) ("[G]enerally, once a suggestion of death has been filed in the district court, a motion for substitution must be made within 90 days of the date the death was suggested on the record,").

In addition, a plain reading of NRCP 25(a)(1) requires that the suggestion of death also be served on parties and/or nonparties before the 90-day period is triggered. In regards to nonparties, this court has already clarified that there is a difference between situations where a suggestion of death emanating from the deceased party fails to identify a successor or personal representative as opposed to situations where a plaintiff dies and the defendant files the suggestion of death. Moseley , 124 Nev. at 660-61, 188 P.3d at 1141. In the latter situation, we stated that "a suggestion of a plaintiff's death filed by a defendant is generally sufficient to trigger the 90-day limitation period within which ... the deceased party's successor or personal representative are required to move for substitution." Id. at 657

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Cite This Page — Counsel Stack

Bluebook (online)
432 P.3d 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gonor-v-dale-nev-2018.