Bonnell v. Lawrence

• Decision Date: 09 August 2012
• Docket Number: No. 56542.,56542.
• Citation: 282 P.3d 712,128 Nev. Adv. Op. 37
• Parties: Francie A. BONNELL, Appellant, v. Sabrina D. LAWRENCE and Steven Lawrence, Respondents.
• Court: Nevada Supreme Court

282 P.3d 712

128 Nev. Adv. Op. 37

Francie A. BONNELL, Appellant,

v.Sabrina D. LAWRENCE and Steven Lawrence, Respondents.

No. 56542.

Supreme Court of Nevada.

Aug. 9, 2012.

Kemp, Jones & Coulthard, LLP, and Carol L. Harris and J. Randall Jones, Las Vegas, for Appellant.

Howard & Howard Attorneys PLLC and James A. Kohl, Las Vegas, for Respondents.

Before CHERRY, C.J., PICKERING and HARDESTY, JJ.

OPINION

By the Court, PICKERING, J.:

This is an appeal from an order dismissing an independent action to obtain relief from an otherwise unreviewable final judgment. Such an action will lie only when needed to prevent a grave miscarriage of justice. Because the allegations and record in this case do not meet this demanding standard, we affirm.

I.

This is the second of two lawsuits brought by appellant Francie Bonnell against her daughter and son-in-law, respondents Sabrina and Steven Lawrence. The first suit ended in summary judgment against Bonnell. The second suit underlies this appeal. In it, Bonnell seeks to undo the summary judgment in the first suit, along with its associated fee award.

This family stand-off traces back to a $135,000 payment that Bonnell made to retire the mortgage debt on her daughter's home (sometimes called “the Lindell premises”). Bonnell saw the payment as an advance on what her daughter would eventually inherit anyway, but with a catch: She expected, in return, a life estate in the Lindell premises, allowing her to live in the home, rent-free, for the rest of her life. The daughter acknowledges the $135,000 payment. However, she viewed it as a loan—which she and her husband repaid when they deeded Bonnell a different home (the Arbor premises) with equity of $135,000+. No writing memorializes the agreement, if indeed there was one.

In her first suit, Bonnell asserted a variety of legal and equitable claims, all premised on her claimed life estate in the Lindell premises. After 14 months of litigation, Bonnell's lawyer withdrew, leaving her to proceed in proper person. Not long after, the Lawrences, who have had counsel throughout, moved for summary judgment. Their motion was supported by, among other documents, Sabrina Lawrence's affidavit. The affidavit lays out the parties' competing views of the $135,000 payment (Bonnell alleges “she has an unwritten life estate in the [Lindell] premises”that she “claims she received ... in exchange for $135,000 that she gave Sabrina to pay off an existing mortgage on the Lindell premises”; the Lawrences maintain that the $135,000 was a “loan” they “repaid ... when [Bonnell] received a $135,000 credit on the purchase of the Arbor Premises.”). It also discloses that, for a time, Bonnell lived rent-free in the Lindell premises.

Bonnell received the motion for summary judgment, but she did not file a written opposition to it, and it was granted by written order. In the order, the district judge determined that Bonnell's claims were “meritless” because they were based on a fully repaid loan; he further held that the statute of frauds, NRS 111.205, defeated Bonnell's oral life estate claim. Additional motion practice followed, in which Bonnell represented herself, whereby the Lawrences recovered their attorney fees and costs. Bonnell received written notice of entry of the summary judgment and fee award. She neither moved for reconsideration under NRCP 59 or relief from judgment under NRCP 60(b), nor appealed.

More than a year later, Bonnell obtained new counsel, who filed this second suit on her behalf. Although filed in the same judicial district and repeating the claims in the first suit, the second suit went to a new district court judge. Attaching excerpts from the summary judgment record in the first suit as exhibits, the second-suit complaint acknowledges that the prior summary judgment ordinarily would preclude Bonnell from suing again on the same claims. Nonetheless, Bonnell alleges that she can proceed by “independent action pursuant to Rule 60(b)” to vacate the prior judgment because the Lawrences obtained it when she was between lawyers and unfairly exploited her unrepresented status. Specifically, Bonnell alleges that the Lawrences gave her faulty notice of the summary judgment hearing, which prevented her from orally opposing the motion. She further alleges, “A meritorious defense [ i.e., the doctrine of ‘partial performance’] exists to [the Lawrences'] argument that NRS 111.205 defeats [Bonnell's] claim to a life estate in the Lindell Property, and the interests of justice demand that this issue be litigated on the merits.”

The Lawrences moved to dismiss the second suit for failure to state a claim under NRCP 12(b)(5). They argued that res judicata ¹ bars relitigation of Bonnell's claims and that, to the extent Bonnell identified grounds for avoiding the prior summary judgment, she could and should have asserted them by motion under NRCP 60(b)(1)-(3) within the six-month deadline specified in the rule. Bonnell countered that “misrepresentation [and/]or other misconduct of the adverse party” can serve as the basis for either a motion or an independent action for relief from judgment and that, since an independent action is not subject to NRCP 60(b)'s time limits on motions, she deserves to proceed past the pleadings.

The district court credited the Lawrences' arguments, rejected Bonnell's, and dismissed the second suit with prejudice. Bonnell timely appeals.

II.

Some background is helpful to place the issues presented by this appeal in context. Rule 60(b) of the Nevada Rules of Civil Procedure is modeled on Rule 60(b) of the Federal Rules of Civil Procedure, as written before the latter's amendment in 2007. See NC–DSH, Inc. v. Garner, 125 Nev. 647, 650–51 nn. 1 & 2, 218 P.3d 853, 856 nn. 1 & 2 (2009). Like its federal counterpart, NRCP 60(b) permits relief from judgment by motion or by independent action. Addressing motions, the rule specifies both the permissible grounds, seeNRCP 60(b)(1)-(5),² and the time deadlines that apply, see NRCP 60(b) (a motion under Rule 60(b) “shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than 6 months after ... written notice of entry of the judgment or order was served”). The rule's reference to relief by independent action, by contrast, provides no specifics. It appears in a “savings clause,” which states only: “This rule [ i.e.,NRCP 60(b) ] does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding, or to set aside a judgment for fraud upon the court.”

Bonnell bases her independent action on “misrepresentation or other misconduct of an adverse party”—recognized grounds for relief from judgment by motion under NRCP 60(b)(3).³ However, despite knowing about the judgment, Bonnell did not timely pursue motion-based relief under NRCP 60(b)(3). Because NRCP 60(b)'s text makes its time deadlines applicable only to motions, not independent actions, see Nevada Industrial Dev. v. Benedetti, 103 Nev. 360, 365, 741 P.2d 802, 805 (1987) (“[t]he only time limitations on independent actions under Rule 60(b) are laches or a relevant state of limitations”), Bonnell argues that she can proceed by independent action to set aside the summary judgment and associated fee award, despite her delay. In essence, Bonnell argues that a litigant who seeks relief from a final judgment but lets the time for doing so by motion under NRCP 60(b)(1)-(3) expire, can do so by independent action, so long as she alleges facts that might qualify for motion-based relief under NRCP 60(b)(1)-(3).

But this is not the law. “Resort to an independent action may be had only rarely, and then only under unusual and exceptional circumstances.” 11 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 2868, at 397–98 (2d ed.1995). To obtain relief by independent action after a judgment has become final and otherwise unreviewable, a claimant must meet the traditional requirements of such an equitable action, which are considerably more exacting than required for relief by motion under NRCP 60(b)(1)-(3).⁴ Furthermore, “under the Rule, an independent action [is] available only to prevent a grave miscarriage of justice.” United States v. Beggerly, 524 U.S. 38, 47, 118 S.Ct. 1862, 141 L.Ed.2d 32 (1998). This is a “demanding standard,” id., that Bonnell's allegations of overreaching and legal error do not nearly approach.

A.

We review the district court's order of dismissal under the standards applicable to a motion for summary judgment, because the Lawrences' motion to dismiss, like Bonnell's complaint, attached excerpts from the first-suit record that the district court considered without objection. See Witherow v. State, Bd. of Parole Comm'rs, 123 Nev. 305, 308, 167 P.3d 408, 409 (2007) (when the district court considers outside matters in deciding a motion to dismiss, this court reviews the disposition “as if it [had] granted summary judgment”). The question remains, though, whether our review is de novo, as Bonnell argues it should be, see id. at 307–08, 167 P.3d at 409, or deferential, utilizing the “abuse of discretion” standard that applies to an appeal from an order granting or denying a motion for relief from judgment under NRCP 60(b), see NC–DSH, 125 Nev. at 657 n. 4, 218 P.3d at 860 n. 4, as the Lawrences maintain.

This is not a case in which the aggrieved party returned to the same judge who entered judgment to ask for relief from it. See Superior Seafoods, Inc. v. Tyson Foods, Inc., 620 F.3d 873, 879 (8th Cir.2010) (“Application of the abuse-of-discretion standard is particularly appropriate” when the same judge presided over the original and succeeding independent action; this judge “not only had a front-row seat for, and personal involvement in, the underlying matter” that produced the targeted judgment, “but he expressly drew upon his personal knowledge and stated in his ruling [on summary judgment in...