Barmettler v. Reno Air, Inc.
| Decision Date | 16 April 1998 |
| Docket Number | No. 27849,28100,27849 |
| Citation | 114 Nev. 441,956 P.2d 1382 |
| Parties | , 136 Lab.Cas. P 58,455, 13 IER Cases 1639 Andrew BARMETTLER, Appellant, v. RENO AIR, INC., Respondent. (Two Cases.) |
| Court | Nevada Supreme Court |
Reno Air employed appellant Andrew Barmettler ("Barmettler") from July 1992 to February 1993. In November of 1992, after informing his supervisors that he was suffering from an alcohol problem, Barmettler admitted himself into a residential treatment facility. Reno Air had previously adopted a written drug and alcohol policy which expressly stated that it would retain, in strict confidence, an employee's participation in any chemical dependency program. This policy was distributed to all employees.
Barmettler alleges that his supervisor discussed the situation with a number of Reno Air employees and that, after returning to work, he was "jeered" by a number of these co-workers. This allegedly caused him to contemplate suicide and seek additional psychotherapy. Thereafter, Barmettler was terminated.
Reno Air claims to have terminated Barmettler for circulating rumors that two Reno Air employees were having an illicit affair. Barmettler maintains that Reno Air terminated his employment in retaliation for his complaints in connection with his supervisor's violations of Reno Air's confidentiality policy.
Barmettler filed a complaint against Reno Air on April 24, 1994, alleging nine claims for relief: (1) breach of contract; (2) breach of the implied covenant of good faith and fair dealing; (3) negligence; (4) fraudulent misrepresentation; (5) negligent misrepresentation; (6) lost wages; (7) wrongful termination; (8) intentional infliction of emotional distress; and (9) negligent infliction of emotional distress. The case was assigned to an arbitrator on October 18, 1994.
On March 10, 1995, the district court granted summary judgment as to the following five claims for relief: breach of contract, breach of covenant of good faith and fair dealing, lost wages, negligent infliction of emotional distress, and wrongful termination.
The remaining four claims were arbitrated on June 5, 1995 (negligence, fraudulent misrepresentation, negligent misrepresentation and intentional infliction of emotional distress). Following a ruling in favor of Reno Air by the arbitrator, Barmettler filed a "Request for Trial De Novo." Reno Air then filed a motion for summary judgment as to the four arbitrated claims for relief.
In its November 20, 1995 order, the district court granted summary judgment on all four of the remaining claims. On December 22, 1995, the district court reduced its March 10 and November 20, 1995 orders to final judgment in favor of Reno Air. On January 31, 1996, the district court entered a separate order granting attorney's fees in the amount of $3,000.00 pursuant to Nevada Arbitration Rule ("NAR") 20(a). Barmettler appeals the summary judgment rulings in appeal No. 27849, 1 and the award of attorney's fees in appeal No. 28100.
Summary judgment is only appropriate when, after a review of the record viewed in a light most favorable to the nonmoving 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 nonmoving 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). However, the nonmoving party " 'is not entitled to build a case on the gossamer threads of whimsy, speculation, and conjecture.' " Collins v. Union Fed. Savings & Loan, 99 Nev. 284, 302, 662 P.2d 610, 621 (1983) (quoting Hahn v. Sargent, 523 F.2d 461, 469 (1st Cir.1975), cert. denied, 425 U.S. 904, 96 S.Ct. 1495, 47 L.Ed.2d 754 (1976)).
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). A party opposing summary judgment may not rely on the allegations of his pleadings to raise a material issue of fact where the moving party supports his motion with competent evidence. Garvey v. Clark County, 91 Nev. 127, 130, 532 P.2d 269, 271 (1975).
Barmettler raises several procedural issues on appeal, each of which will be discussed in turn.
Whether the district court erred in considering unauthenticated documents when it granted partial summary judgment on March 10, 1995, as to five of Barmettler's claims
Barmettler contends that several exhibits 2 were not properly authenticated; therefore, the district court erred in considering them in granting the first summary judgment motion. Further, Barmettler requested Rule 11 sanctions against Reno Air for improper authentication. We conclude that this argument is without merit because any authentication defects were cured before the final disposition in the court below. Also, several of the exhibits appear to have been self-authenticating in the context of these claims.
Whether the district court erred in entertaining Reno Air's November 20, 1995 motion for summary judgment on the remaining claims litigated in arbitration
As to Reno Air's second motion for summary judgment addressing the arbitrated claims (negligence, fraudulent misrepresentation, negligent misrepresentation, intentional infliction of emotional distress), Barmettler insists that the district court improperly reconsidered the same factual issues presented in the first summary judgment motion filed on December 23, 1994. Characterizing Reno Air's second motion for summary judgment as a motion for "reconsideration," Barmettler claims that, pursuant to Washoe District Court Rule 12(8), 3 the motion was untimely because it was not filed within ten days of the first order. In light of NRCP 56(b), which allows a defending party "at any time, [to] move with or without supporting affidavits for a summary judgment in his favor ...," and because the case had been more fully developed as of the time the second motion was lodged, we conclude that this argument must fail. Accordingly, there was no procedural impediment to Reno Air's second motion for summary judgment on the arbitrated claims.
We now move to the merits of the summary judgment orders. 4
Fraudulent misrepresentation
Barmettler alleges in his fourth claim for relief that Reno Air made fraudulent representations concerning its drug and alcohol program. Barmettler claims Reno Air induced him into accepting employment in July of 1992, and into entering an alcohol and drug rehabilitation program in November of 1992.
Under Nevada law, Barmettler has the burden of proving each and every element of his fraudulent misrepresentation claim by clear and convincing evidence: (1) A false representation made by the defendant; (2) defendant's knowledge or belief that its representation was false or that defendant has an insufficient basis of information for making the representation; (3) defendant intended to induce plaintiff to act or refrain from acting upon the misrepresentation; and (4) damage to the plaintiff as a result of relying on the misrepresentation. Bulbman Inc. v. Nevada Bell, 108 Nev. 105, 110-11, 825 P.2d 588, 592 (1992); Lubbe v. Barba, 91 Nev. 596, 599, 540 P.2d 115, 117 (1975). Further, "[w]here an essential element of a claim for relief is absent, the facts, disputed or otherwise, as to other elements are rendered immaterial and summary judgment is proper." Bulbman, 108 Nev. at 111, 825 P.2d at 592.
Reno Air provided proof that, at arbitration, Barmettler failed to produce any evidence demonstrating that Reno Air fraudulently induced him into accepting employment or seeking drug and alcohol therapy. In the absence of proof to the contrary, Barmettler's naked allegations on these issues were insufficient to raise a triable issue of fact. Again, it is fundamental that the nonmoving party may not rest on the allegations of his pleadings to successfully resist a motion brought under NRCP 56. Accordingly, summary judgment was appropriate as to Barmettler's fraudulent misrepresentation claim.
Intentional infliction of emotional distress
To establish a cause of action for intentional infliction of emotional distress, Barmettler must establish the following:
(1) extreme and outrageous conduct with either the intention of, or reckless disregard for, causing emotional distress, (2) the plaintiff's having suffered severe or extreme emotional distress and (3) actual or proximate causation.
Star v. Rabello, 97 Nev. 124, 125, 625 P.2d 90, 91-92 (1981) (citations omitted).
We conclude that Barmettler has failed to establish either the first or second elements of this cause of action. Accordingly, summary judgment as to this claim was warranted.
Negligent infliction of emotional distress
We first examined negligent infliction of emotional distress for negligent acts committed directly against a plaintiff in Chowdhry v. NLVH, Inc., 109 Nev. 478, 851 P.2d 459 (1993). In Chowdhry, we observed:
We have not previously had occasion to decide whether a plaintiff may recover for negligent infliction of emotional distress for negligent acts committed directly against the plaintiff. In State v. Eaton, we first recognized a cause of action for negligent infliction of emotional distress where a bystander suffers "serious emotional distress which results in physical symptoms caused by apprehending the death or serious injury of a loved one due to the negligence of the defendant." The "physical impact" requirement has also been applied where, as here, the negligent act is alleged to have been committed directly against the plaintiff.
....
In the present case, Chowdhry's emotional distress claims are premised upon re...
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