Maheu v. Eighth Judicial District Court Ex Rel. County of Clark, Dept. No. 6

493 P.2d 709, 88 Nev. 26, 1972 Nev. LEXIS 389

Opinions

OPINION

By the Court,

Gunderson, J.:

In these original proceedings, Robert A. Maheu seeks certain extraordinary writs directed to the respondent court, in which litigation is pending that involves Maheu, Hughes Tool Company (“HTCo”), Howard R. Hughes (HTCo’s sole shareholder), and others. Specifically, Maheu requests these writs:

(1) prohibition arresting proceedings on a “Motion for a Stay and for an Extension of Time,” filed by HTCo;

(2) mandamus commanding respondent to vacate an ex parte order that purports to stay the deposition of HTCo by its managing agent, Howard R. Hughes;

(3) mandamus commanding respondent to furnish Maheu opportunity “to file and have entertained a motion for the imposition of a conditional sanction to ensure the appearance of Howard R. Hughes for the taking of his deposition”; and

(4) mandamus commanding respondent to vacate that provision of an “Order Sealing Exhibit” which curtails disclosure of the contents of certain documents.

Of these requests, we grant the first two for reasons stated in this Opinion. With those matters determined by us, we are confident respondent will promptly consider and decide any motion for a conditional sanction Maheu may address to it; thus, we believe Maheu will now have a plain, speedy and adequate remedy concerning the matter involved in his third request; therefore we deny it, without prejudice. While Maheu’s counsel may have acquiesced in the court’s entry of an order precluding disclosure of his exhibit, we have no doubt that, subject to appropriate safeguards, Maheu’s counsel is nonetheless entitled to copies thereof to prepare his case, and during deposition should be allowed to examine Hughes on the original documents. However, again, we are confident the court will now allow such access upon proper application; thus Maheu’s fourth request for relief is also denied, without prejudice.

A complaint is pending in the respondent court by Robert A. Maheu, plaintiff, against Chester C. Davis, Frank William Gay, and C. J. Collier, Jr., as defendants, claiming damages for wrongful interference with Maheu’s alleged right to control certain business properties. Another complaint is pending in the name of HTCo, as plaintiff, seeking an injunction and damages against Maheu, as defendant, for wrongful refusal to surrender control of business properties and records. In addition to pleading defenses to HTCo’s complaint, Maheu has stated a counterclaim against Hughes and HTCo.

On December 12, 1970, while conducting combined hearings on motions for preliminary injunction filed by Maheu and HTCo, the court entered an “Order Sealing Exhibit,” providing that a documentary exhibit offered by Maheu be sealed in an envelope, which should not be reopened except on application to the court, and that Maheu was prohibited from making “any further disclosure, dissemination or other use of” the exhibit.

On December 24, 1970, the court entered a preliminary injunction from which Maheu has taken an appeal, the merits of which are not before us. The injunction contains provisions requiring Maheu to “return” records, with which Maheu claims to have complied to the extent he understands the obligations created thereby.¹

On December 31, 1970, Maheu served HTCo’s counsel with notice under NRCP 26(a), advising them he would take the deposition of HTCo, by its managing agent, Howard R. Hughes, at 10:00 a.m., January 11, 1971, at the office of Maheu’s attorney. No one appeared pursuant to the notice. Instead, at 10:33 a.m. on January 11, HTCo’s counsel filed a paper styled “Motion to Vacate Notice to Take Deposition,” asserting that (1) the discovery sought was “premature,” (2) the discovery was “not in conformity with applicable provisions of the Nevada Rules of Civil Procedure nor with other applicable rules of law,” and (3) HTCo “may not be compelled to produce Howard R. Hughes as its managing agent.” The same day, at 10:35 a.m., HTCo’s counsel procured an ex parte order, purporting to stay the deposition “until further order of the court following hearing and determination of said Motion.” The motion was never heard.

On January 11, Maheu applied for an order directing the amount of the supersedeas bond to be posted by him to obtain a stay of the preliminary injunction pending his appeal. January 14, the court denied this application.

On January 19, at 5:14 p.m., counsel purporting to act only for HTCo filed the “Motion for a Stay and for an Extension of Time” that is the subject of Maheu’s application for a writ of prohibition. This “motion” asked the court: (1) “for a stay of all actions, proceedings, processes and other activities by or on behalf of Robert A. Maheu . . . other than for compliance with the prior orders of this court dated December 12 and 24, 1970, relating to' certain documents and other property to be returned to HTCO, until MAHEU has fully complied with and satisfied the Court as to his compliance with said prior orders of this court”; and (2) for an extension of time for “any party” to move, answer or otherwise respond to pleadings until after Maheu “shall have fully complied and satisfied the court as to his compliance with said prior orders of this Court.”² By ex parte order filed at 5:19 p.m., the court extended the time of “any party” to plead, as requested by the “motion,” and “stayed” depositions of Frank W. Gay and Chester C. Davis (respectively noticed by Maheu for January 25 and February 1) until “further order of this Court following hearing and determination of the Motion to Stay.”

On February 5, Maheu served another notice to depose Hughes, and moved the court to vacate its ex parte “stay” order, of January 11. March 3, the court denied Maheu’s motion “without prejudice.”

April 1, the court conducted a conference to schedule the order in which pending matters would be heard. The court decided, over protests by Maheu’s counsel, that it would not consider any other matters until such time as it had heard and determined HTCo’s “Motion for a Stay and for an Extension of Time.” Thereafter, the court held hearings at which it permitted HTCo’s counsel to call numerous persons to interrogate them concerning the nature and quantity of records removed from premises of HTCo, where Maheu and his company had conducted business (including managerial services for HTCo) until HTCo undertook to terminate its relationship with Maheu. These proceedings continued from time to time until June 12, when our court stayed them to consider the petition now before us.

I.

Under NRS 34.320, the writ of prohibition “arrests the proceedings of any tribunal, corporation, board or person exercising judicial functions, when such proceedings are without or in excess of jurisdiction.” As a corollary, prohibition will arrest proceedings in aid of an order that is not binding on the petitioner. See: State ex rel. Friedman v. Dist. Ct., 81 Nev. 131, 399 P.2d 632 (1965), and Culinary Workers v. Court, 66 Nev. 166, 207 P.2d 990 (1949), both granting prohibition against proceedings in aid of a restraining order improperly issued without a bond. Thus, if the injunction’s provisions requiring Maheu to “return” records failed for any reason to bind him, then prohibition lies against proceedings instituted to enforce those provisions.

Maheu contends that proceedings predicated upon mandatory provisions of the preliminary injunction are therefore in excess of the district court’s jurisdiction because although he appealed, posted a proper appeal bond, and moved for an order fixing the supersedeas bond necessary to obtain a stay during appeal, the district court unlawfully denied his motion. If the injunction’s mandatory provisions are deemed to “direct the assignment or delivery of documents or personal property” within the meaning of NRCP 73(d)(2), Maheu urges, then under that rule he had an absolute right to enter a bond “[i]n lieu of assignment and delivery.” However, if NRCP 73(d) does not require a supersedeas bond, Maheu argues, his appeal itself effected an automatic stay, because NRCP 73(d)(4) states “[i]n cases not provided for . . . the giving of an appeal bond . . . shall stay proceedings in the court below upon the judgment or order appealed from.” As Maheu in fact sought to have the court fix the supersedeas required of him, we may assume the case is governed by NRCP 73(d)(2).

The pertinent part of that rule was derived from Section 407 of our 1911 Civil Practice Act, and is in substantially the same form today as when this court decided State ex rel. Pacific Reclamation Co. v. Ducker, 35 Nev. 214, 127 P. 990 (1912). There we said: “On an appeal from a mandatory injunction requiring defendants to deliver property to plaintiffs, as in this case, an appeal from the order entitled the defendants, as a matter of right, upon the filing of a proper stay bond, to a stay of proceedings under the injunction. In such a case, the fixing of the amount of the stay bond is not a matter of discretion with the trial court.” 35 Nev., at 227; 127 P., at 994; accord, Dodge Bros. v. General Petroleum Corp., 54 Nev. 245, 10 P.2d 341 (1932). We can hardly depart from our prior rulings, for they not only appear correct, but have been part of our practice for more than half a century; the statute they interpreted was re-adopted by our legislature as part of our 1937 new trials and appeals act (Stat. of Nev. 1937, ch. 32, p. 53, at p. 59); this court itself adopted those provisions without material change, upon recommendation of our Advisory Committee, when we promulgated NRCP; and our prior decisions, as well as our decision today, are in accord with those in California, upon whose code our practice is based.³

It should be noticed that the cases we have cited involved proceedings contemplating punishment for contempt; whereas, HTCo’s motion asked “a stay of all actions, proceedings, processes and other activities by or on behalf of Maheu.” If anything, this difference only renders proceedings on HTCo’s motion more dubious; for where a tribunal has refused to let counsel proceed because it deemed him in contempt, this court has granted mandamus, saying: “If the alleged conduct of the relator was contemptuous, our statute provides ample penalty for it.” Cf. State ex rel. Huffaker v. Crosby, 24 Nev. 115, 123, 50 P. 127, 128 (1897). Thus, proceedings on HTCo’s “Motion for a Stay and for an Extension of Time” are patently in excess of jurisdiction, and as to all such proceedings a writ of prohibition must issue.⁴

The respondent court having extended the time for any party to move, answer or otherwise respond to pleadings in the causes before it, until five days after determination of HTCo’s Motion for Stay; and proceedings on that motion now being terminated; any party under obligation to move, answer, or otherwise respond to pleadings in the causes before the respondent court shall do so, within five days after entry of our Notice in Lieu of Remittitur.

II.

Under NRS 34.160, mandamus lies “to compel the admission of a party to the use and enjoyment of a right or office to which he is entitled and from which he is unlawfully precluded.” Through NRCP 26(a), this court has declared the right of any party to take the testimony “of any person, including a party, by deposition upon oral examination or written interrogatories for the purpose of discovery or for use as evidence in the action or for both purposes.” Maheu contends respondent unlawfully precluded his rights under NRCP 26(a) when, without motions for protective orders “seasonably made by any party or by the person to be examined and upon notice and for good cause shown,” as required by NRCP 30(b), respondent first entered ex parte orders “staying” depositions noticed by Maheu, thereafter denied Maheu’s motion to vacate the order that “stayed” the deposition of HTCo through Hughes, and then declined to consider any matter except HTCo’s “Motion to Stay” pending its determination.

For a century, our settled law has been that any “special” motion involving judicial discretion that affects the rights of another, as contrasted to motions “of course,” must be made on notice even where no rule expressly requires notice to obtain the particular order sought, except only when this requirement is altered to meet extraordinary situations such as those concerned in NRCP 65(b). Pratt v. Rice, 7 Nev. 123 (1871); NRCP 6(d). It is also fundamental that although an order’s subject matter would lie within the court’s jurisdiction if properly applied for, it is void if entered without required notice. Our authorities establishing this principle are as old as Wilde v. Wilde, 2 Nev. 306 (1866), and as recent as Reno Raceway, Inc. v. Sierra Paving, Inc., 87 Nev. 619, 492 P.2d 127 (1971). It makes no difference that a void order may concern a matter committed to the court’s discretion, such as “discovery,” regarding which the court might have granted protective orders had a proper application been made. Cf. Checker, Inc. v. Public Serv. Commn., 84 Nev. 623, 446 P.2d 981 (1968); cf. Ray v. Stecher, 79 Nev. 304, 383 P.2d 372 (1963); cf. Whitney v. District Court, 68 Nev. 176, 227 P.2d 960 (1951); cf. Abell v. District Court, 58 Nev. 89, 71 P.2d 111(1937).

State ex rel. Jurich v. McFadden, 43 Nev. 140, 182 P. 745 (1919), is particularly noteworthy in view of suggestions that various acts of the district court are to be justified as “housekeeping” matters. In McFadden, this court recognized that when a district court undertook to change a trial date without a motion properly before it on notice, as required by a general rule of practice like NRCP 6(d), extraordinary relief by certiorari was available from this court. There, we said: “Attempt is made to maintain the action of the court upon the ground that courts have inherent power to regulate their own docket and control their own business. This position is not tenable in face of the explicit and unconditional direction of the statute and said rule of court.” 43 Nev., at 147.

The authorities cited leave no doubt that orders void for want of notice may be reviewed by certiorari, although we have sometimes refused to issue the writ where it appears the district court, on application, might vacate the offending order. Here, although Maheu’s counsel afforded the court an opportunity to correct its own error, it refused to do so and continued to preclude Maheu’s right. Mandamus lies to gain admission to a precluded right to proceed. Cf. Swisco, Inc. v. District Court, 79 Nev. 414, 385 P.2d 772 (1963); cf. LaGue v. District Court, 68 Nev. 131, 227 P.2d 436 (1951); cf. Roberts v. District Court, 43 Nev. 332, 185 P. 1067 (1920); cf. State ex rel. Howe v. Moran, 37 Nev. 404, 142 P. 534 (1914); cf. Floyd v. District Court, 36 Nev. 349, 135 P. 922 (1913).

It is no answer to say the court has not denied, but has merely postponed, Maheu’s right to take desired depositions; for with exceptions not applicable here, NRCP 26(a) expressly grants the right to depose witnesses “without leave of court.” The right to prepare one’s case in this manner is continuing and ever present, subject to discretionary control by the court only in conformity with NRCP.

Since the court’s ex parte orders “staying” depositions were entered without any jurisdiction we can perceive, either under NRCP 30(b) or otherwise, and since we believe such a jurisdictional deficiency does not become a calendar problem merely because problems concerning it have been interjected into the court’s calendar, it is our order that a writ of mandamus issue commanding the lower court to vacate its order of January 11 staying the deposition of HTCo through Hughes.⁵

The view we take of this matter makes it unnecessary to consider the extent to which this court may, by extraordinary writ, review merely erroneous or arbitrary orders of a district court that decide some properly presented issue concerning “discovery.”

Batjer and Thompson, JJ., concur.

Footnotes

1

Among other things, the preliminary injunction provides:

“IT IS FURTHER ORDERED that defendants, their respective agents, servants, employees and attorneys, and all persons in active concert and participation with any of them, shall forthwith return or cause the return to plaintiff of all books, documents, records and communications of plaintiff or pertaining directly or indirectly to the business operations or affairs of plaintiff, including all copies or other reproductions [sic] of same, and all other property belonging to plaintiff, as may be in the possession, custody or control of defendants directly or indirectly.”

2

The grounds for this “Motion for Stay” were:

“1. MAHEU has failed and refused to comply with the prior orders of this Court;

“2. substantial rights of HTCO in the above cases are materially and adversely affected so long as MAHEU fails to comply with the prior orders of this Court relating to the return of documents and property belonging to HTCO;

“3. MAHEU is not entitled to the use or protection of the rules, procedures or processes of this Court in connection with the above cases so long as he is defying the prior orders of this Court; and

“4. the conduct of MAHEU is contumacious and tends to make a mockery of the rules, procedures and orders of this Court. It is not only inequitable but prejudicial to HTCO to require the parties involved in the above cases to proceed with the litigation of the issues raised by MAHEU so long as MAHEU fails and refuses to comply with the outstanding orders of this Court.”

3

In Clute v. Superior Court, 99 P. 362 (Cal. 1908), the Supreme Court of California arrested proceedings to enforce a preliminary injunction directing the manager of a corporation to return books and property where, although the petitioner has not posted a supersedeas bond, “he had requested the court below to fix the amount of an undertaking to stay proceedings.” Id., at 364. See also: Kettenhofen v. Superior Court, 358 P.2d 684 (Cal. 1961); Schwarz v. Superior Court, 43 P. 580 (Cal. 1896); Dewey v. Superior Court, 22 P. 333 (Cal. 1889).

4

Accordingly, while Maheu has raised other forceful arguments to support the writ’s issuance, it is unnecessary to decide them.

If the proceedings be considered as discovery into Maheu’s defenses and counterclaim, as counsel for HTCo sometimes appears to suggest, the court is equally without jurisdiction to entertain them; for they clearly are contrary to numerous provisions of the practice we have promulgated, e.g. NRCP 30(a)(b)(c)(e). It would be strange indeed were we to hold that respondents could allow HTCo to conduct its discovery in court, without the slightest compliance with our rules, while denying Maheu all right to proceed with discovery outside of court, in compliance with those rules.

Again, HTCo’s motion cannot be considered as one for a protective order, in part for reasons indicated in Point II of this Opinion.

Rasbury v. Bainum, 387 P.2d 239 (Utah 1963), upon which HTCo principally relies in justification of the proceedings, has little or nothing in common with the case at hand. There, the court entered a pre-trial order, the propriety and binding character of which plaintiff did not question, requiring him to produce books and records for trial. The plaintiff failed to produce them, offering no excuse except the suggestion that “possibly” they had been stolen from his office. The court held this excuse “not worthy of consideration” and dismissed his cause of action; the appellate court affirmed.

5

It is arguable that when a court is without time to hear a proper motion for a protective order, it may postpone the deposition until the motion can be heard. Cf. Pioche Mines Consolidated, Inc. v. Dolman, 333 F.2d 257, 269 (9th Cir. 1964). Here, however, the court’s ex parte “stay” order cannot thus be justified; for assuming, out of favor to HTCo, that its “Motion to Vacate Notice to Take Deposition” can be considered a motion for a protective order, it was neither “seasonably made” nor made “upon good cause shown.” See: Millholland v. Oglesby, 155 S.E.2d 672 (Ga.App. 1967); Wieneke v. Chalmers, 385 P.2d 65 (N.M. 1963); Stevens v. Sioux City and New Orleans Barge Lines, Inc., 30 F. R. D. 397 (W.D. Mo., W.D. 1962); Loosley v. Stone, 15 F. R. D. 373 (S.D. Ill., N.D. 1954); Dictograph Products v. Kentworth Corporation, 7 F. R. D. 543 (W.D. Ky. 1947).

Our discovery rules are patterned on the Federal Rules of Civil Procedure.