Aldabe v. Adams, 4857

• Decision Date: 14 May 1965
• Docket Number: No. 4857,4857
• Citation: 81 Nev. 280,402 P.2d 34
• Parties: Alvera M. ALDABE, Appellant, v. Robert Taylor ADAMS, Respondent.
• Court: Nevada Supreme Court

Page 34

402 P.2d 34

81 Nev. 280

Alvera M. ALDABE, Appellant, v. Robert Taylor ADAMS, Respondent.

No. 4857.

Supreme Court of Nevada.

May 14, 1965.

Rehearing Denied June 3, 1965.

James W. Johnson, Jr., Reno, Lawrence K. Karlton, Sacramento, Cal., for appellant.

Goldwater, Taber & Hill, Reno, for respondent.

THOMPSON, Justice.

We are asked to overturn a summary judgment for Robert Taylor Adams, one of the defendants below and the respondent here, which rests upon the statutes of limitation barring a claim of damages for fraud (NRS 11.190(3)(d)) and conspiracy (NRS 11.220). ¹ The contention is made that a genuine issue of material fact remains as to the bar of limitations and that summary judgment was improper for that reason. Dredge Corporation v. Wells Cargo, 80 Nev. 99, 389 P.2d 394. We rule that the appellate contention is unsound, and affirm the entry of summary judgment. Our ruling stands mainly on the proposition that a genuine issue of material fact may not be created by the conflicting sworn statements of the party against whom summary judgment was entered.

In the lower court three individuals in addition to Adams were similarly charged by Alvera Aldabe with fraud and conspiracy--Attorney Jack Streeter, her former husband Charles Aldabe, and David Evans. The charges of fraud and conspiracy in this case relate to the manner in which a prior Nevada divorce case was handled.

On April 29, 1960, the Aldabes' marriage of 19 years was dissolved by a final Nevada divorce decree. The divorce action was initiated by Alvera on July 13, 1959. Her counsel in that case was Jack Streeter. The verified complaint alleged her domicile and residence in Nevada for a period of 18 years immediately preceding. She sought custody of and support for two minor children, her interest in community property, a divorce and other proper relief. Charles responded by answer and counterclaimed for divorce. His counsel was Robert Taylor Adams. Alvera did not appear at the hearing; her counsel did. The divorce was awarded to Charles on his counterclaim. He was also given custody of their son, joint custody of their daughter, and most of the property including a valuable ranch and livestock. The instant action was commenced on June 16, 1964, more than four years after the decree of divorce was entered. As indicated in Footnote No. 1, the bar of limitations is available against a claim for relief grounded on fraud if such claim is not asserted within three years after 'discovery by the aggrieved party of the facts constituting the fraud.' The statute of limitations runs against an action based on conspiracy in four years, viz., such an action must be commenced within four years after the cause of action shall have accrued. Accordingly our inquiry as to the claim of fraud is to ascertain the date of Alvera's discovery of the facts which she asserts to constitute fraud. With regard to the civil conspiracy charge we must adopt a rule for Nevada specifying when that cause of action accrues and calculate whether the four year limitation is a bar.

Stripped of its overburden the complaint charges that the perpetrators of fraud and co-conspirators each knew that neither Alvera nor her husband was a resident of Nevada, but proceeded with the divorce case anyway. Further, she claims that her attorney and Adams fraudulently and in furtherance of the conspiracy stipulated as to the character of the Aldabe property interests, to her great damage, for the decree as to property was mainly governed by that stipulation. Her conclusory allegations are: 'That all the defendants at a time unknown to plaintiff, made and entered into a conspiracy to coerce and defraud plaintiff, and deprive plaintiff of her legal rights and property,' and 'That plaintiff did not learn of the facts indicating the existence of fraud and a conspiracy to defraud until after November, 1960.'

We may, of course, summarily reject any contention here that a genuine issue of fact about the bar of limitations was created by the bare allegation of the complaint that she learned of the fraud and conspiracy 'after November, 1960.' NRCP 56(e); ² Franktown Creek Irrigation Co. v. Marlette, 77 Nev. 348, 364 P.2d 1069; Dredge Corp. v. Husite, 78 Nev. 69, 369 P.2d 676. The rule and the cited cases direct our attention to an evaluation of the evidentiary material presented to the court on the summary judgment motion. Accordingly we turn to discuss the evidence submitted to the lower court.

1. Fraud. Within four months after commencing her Nevada divorce action Alvera filed a suit for divorce in California. The jurisdictional allegations in the two cases, each under oath, are wholly incompatible. One of them is false. Four days after starting the California case Alvera filed a verified reply to the counterclaim of her husband in the Nevada case, in which she asked that she be granted the relief prayed for in her Nevada divorce complaint. Thereafter, on April 25, 1960, and before the Nevada case was brought on for trial, Alvera swore to an affidavit in the California case stating, among other things: 'That defendant is a strong and able bodied man and that he is in possession of community property of plaintiff and defendant which has a value in excess of $250,000.00; that defendant is trying to conceal the community character of said property and is claiming most of it as his sole and separate property; that said claim is false and fraudulent and intended to deprive plaintiff of her just share of the community property.' In addition, she stated in that affidavit that she had retained a California attorney to 'prosecute this action to a proper conclusion, and resist defendant's efforts to deprive plaintiff of her legal rights by the spurious suit in the State of Nevada.'

The rule of Howard v. Howard, 69 Nev. 12, 239 P.2d 584, places an obligation on the party claiming fraud to excuse the failure to discover it within three years after it occurred. There must be a showing that she had no actual or presumptive knowledge of facts sufficient to put her on inquiry. Alvera's affidavit of April 25, 1960, does not satisfy the Howard standard. rather, the opposite is true. By that sworn statement she disclosed her knowledge of facts which she believed to constitute fraud. If her knowledge was not then complete she was under a duty to exercise proper diligence to learn more. Howard v. Howard, supra.

Seeking to avoid the Howard rule, Alvera directs our attention to another of her sworn statements--an affidavit filed below in opposition to the motion for summary judgment. This affidavit (and two others--one of a private investigator and another by a California lawyer) purports to show that Alvera did not really know enough about the fraud in April 1960 to do anything about it. Her knowledge was incomplete. A 'legal discovery' did not occur until much later. The conflict between her April 25, 1960, affidavit and her affidavit below (sworn to on August 15, 1964) is manifest. It is this conflict (she argues) which creates an issue of material fact about the date when she discovered the alleged fraud, and that conflict must be resolved by trial and not otherwise. We reject this contention.

Our law does not promise a trial to one who views the sanctity of an oath so lightly, if preliminary procedures show her cause to be unworthy. When Rule 56 speaks of a 'genuine' issue of material fact, it does so with the adversary system in mind. The word 'genuine' has moral overtones. We do not take it to mean a fabricated issue. Though aware that the summary judgment procedure is not available to test and resolve the credibility of opposing witnesses to a fact issue (Short v. Hotel Riviera, Inc., 79 Nev. 94, 378 P.2d 979), we...