Blige v. Terry

• Docket Number: 85214
• Decision Date: 28 December 2023
• Parties: AVA WHITNEY BLIGE, AN INDIVIDUAL, Appellant, v. CHRISTOPHER TERRY, AN INDIVIDUAL, Respondent.
• Court: Nevada Supreme Court

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139 Nev.Adv.Op. 60

AVA WHITNEY BLIGE, AN INDIVIDUAL, Appellant,
v.
CHRISTOPHER TERRY, AN INDIVIDUAL, Respondent.

No. 85214

Supreme Court of Nevada, En Banc

December 28, 2023

Appeal from a district court amended default judgment in a tort action. Eighth Judicial District Court, Clark County; Susan Johnson, Judge.

Ava Whitney Blige, Pro Se.

Holland & Hart LLP and Lars K. Evensen, James M. DeVoy, and Jenapher Lin, Las Vegas, for Respondent.

BEFORE THE SUPREME COURT

OPINION

STIGLICH, C. J.

Respondent Christopher Terry sued appellant Ava Blige for damages, asserting various contract-based and tort-based claims centered on allegations that Blige extorted cryptocurrency and money for cars from

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him under threat of publishing his personal information. As a result of discovery abuses, the district court struck Blige's answer to the complaint and entered a default. At a prove-up hearing, the court concluded that Terry had met his burden to establish a prima facie case on his claims of conversion, unjust enrichment, and intentional infliction of emotional distress, for which he was entitled to proven damages. The court also found that the factual allegations, deemed admitted, supported a claim for extortion, despite extortion not being pleaded as a specific claim in the complaint. It then entered a default judgment awarding damages to account for the emotional distress, moneys spent on cars for Blige, and ci'yptocurrency transferred to Blige; the judgment was later amended to account for the cryptocurrency's value.

On appeal, Blige argues that the district court erroneously determined that she impliedly consented to being sued under the impleaded legal theory of extortion. We agree with Blige on this issue and hold that, in default proceedings, a defaulting party cannot be found to have impliedly consented to try claims that were not pleaded in the complaint. Although Blige also challenges the judgment on the conversion, unjust enrichment, and emotional distress claims, we conclude that the district court properly determined that Blige wrongfully dispossessed Terry of the cryptocurrency and money for cars by way of extortive acts under these theories and caused him emotional distress. Accordingly, we affirm the judgment.

FACTS AND PROCEDURAL HISTORY

According to the complaint, Terry is the chief executive officer of an Internet company. Blige worked at that company, first as Terry's personal assistant and later as an independent contractor. Their professional association led to a romantic relationship. While they were romantically involved, Terry gave Blige several luxury items, including

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cars, cash, and cryptocurrencies. Once the relationship ended, Blige revealed to Terry that she had taken damaging or compromising photographs of him and had made audio and video recordings of his conversations and phone calls. She threatened to publicly release the photographs and recordings unless he complied with her demands for valuables, including cryptocurrency. Terry complied with Bilge's demand to transfer Bitcoin to her in hopes that she would not release any of the photographs or recordings. However, after he complied, Blige continued to threaten to publicly release the information unless he met additional demands. To protect himself, Terry transferred more Bitcoin to Blige. Terry eventually made a report of extortion against Blige to the police.

In the underlying civil complaint, Terry sought relief against Blige, alleging, as relevant here, claims for breach of contract, breach of the covenant of good faith and fair dealing, conversion, unjust enrichment, and intentional infliction of emotional distress. Terry also sought declaratory and injunctive relief to prevent Blige from releasing the photographs and recordings. Blige filed an answer, but during discovery, she failed to produce electronically stored information, including the photographs and recordings, and she responded to only one set of discovery requests. As the discovery deadline approached, Blige fired her attorneys, who then filed a motion to withdraw, which the district court granted. The district court ordered Blige, who was proceeding pro se at the time, to respond to all discovery requests by a specified date. Blige failed to respond to the district court's order. Terry then moved for a default as an NRCP 37 sanction for failure to comply with discovery obligations. Blige failed to appear at the October 12, 2021, hearing on the motion, and the district court struck Blige's answer and entered a default, finding that Blige willfully and

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repeatedly failed to respond to discovery requests and failed to turn over electronically stored information in violation of court orders.

Blige moved to set aside the default, asserting that she was unaware of the court date. She also filed a supplement to her motion with a supporting declaration in which she asserted that (1) she was unaware of the outstanding discovery requests due to her former counsel's withdrawal; (2) she "did not personally receive any new mail related to any outstanding discovery obligations"; (3) Terry served her with motions and papers by mailing those documents to her parents' house, where she did not live full time; (4) she could not find anything after police had "trashed" the house when executing a warrant; and (5) she was arrested on October 18, 2021, and in jail until around October 23, 2021. The district court denied the motion to set aside the default, noting that the address Blige provided in the motion was identical to the address at which she was served by mail with the order directing her to respond to the discovery requests.

Terry moved for a default judgment, requesting compensatory and punitive damages. At this point, both parties were represented by counsel and appeared at the prove-up hearing, and both Blige and Terry testified. To support his damages, Terry presented screenshots of Bitcoin transfers to Blige and to his car dealer, as well as copies of text messages between him and "Ava," "AvaLavaa," and "Ava 2." Blige objected to the admission of this evidence, but the district court overruled her objection.

The district court granted Terry's motion for a default judgment as to his claims for conversion, unjust enrichment, and intentional infliction of emotional distress, finding that Terry had made a prima facie showing of liability under these theories and had proven resultant damages. Moreover, relying on NRCP 15(b)(2), the district court amended the pleadings to

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conform to the evidence and found Blige liable for damages resulting from the tort of extortion, even though that tort was not included as a specified claim in the complaint. The court denied Terry's motion as to all other causes of action asserted and instructed Terry to prove the value of the transferred Bitcoin. Terry subsequently submitted his counsel's affidavit in support of the judgment calculation, which relied on the Wall Street, Journal Pro Central Banking. Over Blige's objection, the district court accepted Terry's valuation and amended its judgment accordingly. In total, the court awarded Terry $2,631,708.86 in compensatory damages and, finding Blige's conduct malicious, oppressive, and in conscious disregard for the consequences, awarded 82,201,358.44 in punitive damages. Blige appeals.

DISCUSSION

Blige contends that the district court abused its discretion by denying her motion to set aside the entry of default. Blige also asserts that the district court (1) improperly found that Blige impliedly consented under NRCP 15(b)(2) to trying a claim for the tort of extortion; (2) admitted and considered unauthenticated evidence of damages; and (3) erred in concluding that Terry made prima facie showings that supported liability and resulting damages for conversion, unjust enrichment, and intentional infliction of emotional distress. We address each of Blige's contentions in turn.

The district court properly denied Blige's motion to set aside the default

Blige argues that the district court abused its discretion by finding no good cause to set aside the default. Specifically, she contends that she demonstrated that her failure to respond to discovery requests resulted from her being unaware of any such requests or of pending hearings, in part because she was arrested on October 18 and detained for

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five clays, and in part because she did not otherwise personally receive mailed orders and notices notifying her of obligations in the case. Blige also argues that she could not have complied with directives to provide the electronically stored photographs and recordings because her electronic devices were seized by the police.

We review the district court's decision regarding whether to set aside a default for an abuse of discretion. Sealed Unit Parts Co. v. Alpha. Gamma, Chapter of Gamma Phi Beta Sorority Inc. of Reno, 99 Nev. 641, 643, 668 P.2d 288, 289 (1983). overruled on other grounds by Epstein v. Epstein, 113 Nev. 1401, 1405, 950 P.2d 771, 773 (1997). NRCP 55(c) provides that a district court may set aside a default for "good cause." In asking to set aside a default for good cause, "the moving party must show some excuse for its failure to answer or otherwise defend." Sealed Unit Parts, 99 Nev. at 643, 668 P.2d at 289. The "good cause" standard includes NRCP 60(b)(1) grounds for relief, including "mistake, inadvertence, surprise or excusable neglect." See Inter mountain Lumber & Builders Supply, Inc. v. Glens Falls Ins. Co., 83 Nev. 126, 129, 424 P.2d 884, 886 (1967).

The record on appeal undermines Blige's claim that she was unaware of the outstanding discovery requests and the hearing date. Blige stated in her declaration in support of the motion to set aside that she reviewed the outstanding requests and provided responses and documentation for the requests to her former attorneys on July 28, 2021. Although...