Wayment v. Holmes

912 P.2d 816, 112 Nev. 232, 11 I.E.R. Cas. (BNA) 983, 1996 Nev. LEXIS 26
CourtNevada Supreme Court
DecidedMarch 1, 1996
Docket26390
StatusPublished
Cited by45 cases

This text of 912 P.2d 816 (Wayment v. Holmes) 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
Wayment v. Holmes, 912 P.2d 816, 112 Nev. 232, 11 I.E.R. Cas. (BNA) 983, 1996 Nev. LEXIS 26 (Neb. 1996).

Opinions

[234]*234OPINION

By the Court,

Rose, J.:

Appellant David Wayment brought suit against respondents, former District Attorney Dorothy Nash Holmes, Assistant District Attorney Donald Coppa, Washoe County District Attorney’s Office, and County of Washoe, for tortious discharge. The district court granted respondents’ motion for summary judgment on the grounds that (1) Wayment presented no genuine issue of material fact that he was tortiously discharged, and (2) that all respondents were immune from suit.

We conclude that the district court’s order granting respondents’ motion for summary judgment was proper.

FACTS

Wayment was employed by Washoe County as a deputy district attorney from August 1992 through February 18, 1994. On April 28, 1994, Wayment filed a lawsuit against respondents alleging that he was tortiously discharged.

Wayment was assigned to work on numerous motions to dismiss and petitions for writs of habeas corpus in a criminal prosecution commonly referred to as the Champion Chevrolet case. Coppa was Wayment’s supervisor on this case and was also delegated the power to hire and fire employees. Wayment alleged that during the course of his work he discovered that the district attorney’s indictment was invalid and that no legitimate defense could be raised to some of the defendants’ motions and petitions. Wayment approached Coppa, who was prosecuting the case, told him of the deficiencies, and suggested that he either amend the indictment or dismiss the indictment and attempt to reindict the defendants. Wayment alleged by way of his own affidavit that Coppa refused to amend the indictment because to do so would be a concession that he had made a mistake. Wayment also alleged that Coppa stated that certain problems in the indictment were the result of his own incompetence and lack of understanding of the law in regard to one count.

[235]*235Wayment argued repeatedly with Coppa over the alleged deficiencies in the indictment, constantly urging Coppa to amend or withdraw the indictment, of which Coppa did neither. Shortly after Wayment finished working on the motions and petitions, Coppa fired him, alleging that he did so because of Wayment’s insubordination and unsatisfactory work performance. Wayment claims that he had an ethical duty under the Supreme Court Rules both to inform Coppa of the deficiencies and to try to get Coppa to cure those deficiencies, and that Coppa violated public policy by firing him for doing so.

The district court granted respondents’ motion for summary judgment on the grounds that: (1) Wayment did not meet the standard to prove a public policy tortious discharge; and (2) respondents Coppa and Holmes were immune from suit pursuant to NRS 41.032(2), and the Washoe County District Attorney’s office was not a suable entity.1

DISCUSSION

Summary judgment is only appropriate when, after a review of the record viewed in the light most favorable to the non-moving party, there remain no issues of material fact. Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). “In determining whether summary judgment is proper, the nonmov-ing party is entitled to have the evidence and all reasonable inferences accepted as true.” Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989).

This court’s review of a summary judgment order is de novo. Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989). On appeal, this court is “required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment.” Bird v. Casa Royale West, 97 Nev. 67, 68, 624 P.2d 17, 18 (1981).

Tortious discharge in violation of public policy

It is undisputed that Wayment was an at-will employee who could properly be discharged without cause at the will of the employer. K Mart Corp. v. Ponsock, 103 Nev. 39, 42 n.1, 732 [236]*236P.2d 1364, 1366 n.1 (1987). However, Wayment contends that his termination was within the “tortious discharge” exception to the at-will employment doctrine. This exception states that “[a]n employer can dismiss an at-will employee with or without cause, so long as the dismissal does not offend a public policy of this state.” Vancheri v. GNLV Corp., 105 Nev. 417, 421, 777 P.2d 366, 369 (1989). Terminating an employee for reasons which violate public policy gives rise to an action for tortious discharge. D’Angelo v. Gardner, 107 Nev. 704, 712, 819 P.2d 206, 212 (1991).

This court has repeatedly held that “public policy tortious discharge actions are severely limited to those rare and exceptional cases where the employer’s conduct violates strong and compelling public policy.” Sands Regent v. Valgardson, 105 Nev. 436, 440, 777 P.2d 898, 900 (1989) (concluding that a legislative public policy against age discrimination was not sufficiently strong to warrant an exception to the at-will employment doctrine); see also Smith v. Cladianos, 104 Nev. 67, 69, 752 P.2d 233, 235 (1988).

Wayment argued that he had a mandatory ethical duty to refrain from bringing a frivolous action and from prosecuting a charge which he knew was not supported by probable cause. SCR 170 and 179(1). Wayment alleged that he was following these ethical duties when he repeatedly attempted to get Coppa to amend the indictment and that he was terminated for doing so. Therefore, Wayment concludes that his discharge was in violation of a strong and compelling public policy of having attorneys abide by the Supreme Court Rules.

Wayment’s argument fails for two reasons. First, Wayment’s contention that he was terminated for complying with his mandatory ethical duties is a mere allegation in his pleadings unsupported by any evidence which shows that there is a genuine issue for trial. NRCP 56(e). Wayment’s affidavit, which is the sole piece of evidence relied on by Wayment, states only that he felt the indictment was deficient and that he argued with Coppa about amending or withdrawing the indictment; it does not state that he was terminated for exercising his duties pursuant to the Supreme Court Rules.

Wayment alleges that his version of the facts, i.e., that he was fired for exercising his duties under the Supreme Court Rules, must be taken as true, thereby curing any deficiencies in his [237]*237affidavit. This is an incorrect statement of the law. “Properly supported factual allegations and all reasonable inferences of the party opposing summary judgment must be accepted as true. However, conclusory statements along with general allegations do not create an issue of material fact.” Michaels v. Sudeck, 107 Nev. 332, 334, 810 P.2d 1212, 1213 (1991) (citation omitted).

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Bluebook (online)
912 P.2d 816, 112 Nev. 232, 11 I.E.R. Cas. (BNA) 983, 1996 Nev. LEXIS 26, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wayment-v-holmes-nev-1996.