Dechambeau v. Stephen C. Balkenbush, Esq., 092718 NVSC, 72879

Docket Nº:72879
Opinion Judge:TAO, J.
Party Name:ANGELA DECHAMBEAU; AND JEAN-PAUL DECHAMBEAU, BOTH INDIVIDUALLY AND AS SPECIAL ADMINISTRATORS OF THE ESTATE OF NEIL DECHAMBEAU, Appellants, v. STEPHEN C. BALKENBUSH, ESQ.; AND THORNDAL, ARMSTRONG, DELK, BALKENBUSH & EISINGER, A NEVADA PROFESSIONAL CORPORATION, Respondents.
Attorney:Kozak & Associates, LLC, and Charles R. Kozak, Reno, for Appellants. Molof & Vohl and Robert C. Vohl, Reno; Pollara Law Group and Dominique A. Pollara, Sacramento, California, for Respondents.
Judge Panel:BEFORE SILVER, C.J., TAO and GIBBONS, JJ. I concur: Gibbons, J. SILVER, C. J, concurring:
Case Date:September 27, 2018
Court:Supreme Court of Nevada
 
FREE EXCERPT

134 Nev.Adv.Op. 75

ANGELA DECHAMBEAU; AND JEAN-PAUL DECHAMBEAU, BOTH INDIVIDUALLY AND AS SPECIAL ADMINISTRATORS OF THE ESTATE OF NEIL DECHAMBEAU, Appellants,

v.

STEPHEN C. BALKENBUSH, ESQ.; AND THORNDAL, ARMSTRONG, DELK, BALKENBUSH & EISINGER, A NEVADA PROFESSIONAL CORPORATION, Respondents.

No. 72879

Supreme Court of Nevada

September 27, 2018

Appeal from a judgment on jury verdict, an amended judgment, and an order denying a motion for new trial in a legal malpractice action. Second Judicial District Court, Washoe County; Patrick Flanagan, Judge.

Kozak & Associates, LLC, and Charles R. Kozak, Reno, for Appellants.

Molof & Vohl and Robert C. Vohl, Reno; Pollara Law Group and Dominique A. Pollara, Sacramento, California, for Respondents.

BEFORE SILVER, C.J., TAO and GIBBONS, JJ.

OPINION

TAO, J.

In their joint case conference report, the parties to this civil lawsuit stipulated to a discovery schedule that expressly waived the usual requirement, otherwise contained in Rule 16.1(a)(2)(B) of the Nevada Rules of Civil Procedure (NRCP), that written reports be produced and exchanged summarizing the anticipated testimony of all expert witnesses designated to appear at trial. Much later in the case, the district court (sua sponte but without objection by either party) entered a scheduling order that extended the deadline for identifying expert witnesses. The order said nothing one way or the other about whether the stipulation to waive expert reports continued in effect or not.

The question raised in this appeal is whether, in the face of that silence, the original stipulation continued in effect or rather must be deemed to have been entirely superseded by the new order. We conclude that the intent of the parties ultimately controls the duration and scope of the stipulation and, in the absence of any evidence of an intention to the contrary, the stipulation should be read to continue in effect until and unless expressly vacated either by the court or by a subsequent agreement between the parties.

FACTUAL SUMMARY

This case originated as an action in medical malpractice that eventually degraded into a legal malpractice suit. The plaintiffs-appellants, members of the DeChambeau family (the DeChambeaus), allege that they retained the respondents, attorneys licensed to practice law in Nevada (hereafter collectively referred to as Balkenbush), to handle a medical malpractice action on behalf of a deceased relative, but that Balkenbush handled the case negligently and that negligence led to entry of a final judgment adverse to the DeChambeaus. The family then sued Balkenbush for legal malpractice. This appeal arises from the legal malpractice action.

After the filing of the complaint and answer, the parties filed a joint case conference report in which they mutually stipulated to waive the requirement, otherwise contained in NRCP 16.1(a)(2)(B), that the parties must exchange written reports summarizing the anticipated testimony of any expert witnesses retained by either party. The joint case conference report also contained an agreed-upon discovery cut-off date. Before the close of discovery, Balkenbush retained and designated an expert witness named Dr. Fred Morady. Pursuant to the stipulation, no expert report was prepared.

Shortly before trial, the district court entered summary judgment in favor of Balkenbush, finding that the DeChambeaus' claim failed for lack of causation (an issue unrelated to the question before us in this appeal). The DeChambeaus appealed to the Nevada Supreme Court and, in an unpublished order, the supreme court reversed the grant of summary judgment and remanded the matter back to the district court.

By the time the supreme court issued its order of reversal and remand, all of the deadlines set in the joint case conference report, including all discovery deadlines and the expected trial date, had long expired. Two months after the supreme court's order of reversal and remand, the district court conducted a status hearing with the parties and, apparently sua sponte but without objection by either party, issued a scheduling order which, among other things, extended the deadlines for disclosing both initial expert witnesses and rebuttal experts. The district court's revised scheduling order did not specify whether the requirement to prepare and exchange expert reports would once again be waived.

Balkenbush subsequently retained a new expert witness, Dr. Hugh Calkins, who had not been previously designated. Adhering to the original stipulation filed before the supreme court appeal, Balkenbush did not provide a written report outlining Dr. Calkins' testimony. The DeChambeaus objected to the designation of Dr. Calkins based on Balkenbush's failure to supply an expert report describing his testimony, filing both a motion to strike and a motion in limine seeking to prevent him from testifying at trial. Both were denied. The case proceeded to trial with Dr. Calkins testifying to the jury that, in his expert opinion, Balkenbush had not violated the applicable standard of care. The jury returned a verdict in favor of Balkenbush. The DeChambeaus filed a motion for a new trial arguing that admission of Dr. Calkins' testimony constituted error, which the district court denied. The DeChambeaus now appeal both from the verdict and from the denial of their motion for new trial, presenting the same arguments for both.

ANALYSIS

Of the various issues raised...

To continue reading

FREE SIGN UP