Fergason v. Las Vegas Metro. Police Dep't

• Decision Date: 24 December 2015
• Docket Number: No. 62357.,62357.
• Parties: Bryan FERGASON, Appellant, v. LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Respondent.
• Court: Nevada Supreme Court

364 P.3d 592

Bryan FERGASON, Appellant,

v.LAS VEGAS METROPOLITAN POLICE DEPARTMENT, Respondent.

No. 62357.

Supreme Court of Nevada.

Dec. 24, 2015.

Bailey Kennedy and Dennis L. Kennedy and Paul C. Williams, Las Vegas, for Appellant.

Thomas Joseph Moreo, Chief Deputy District Attorney, Clark County; Marquis Aurbach Coffing and Micah S. Echols, Las Vegas, for Respondent.

Before SAITTA, GIBBONS and PICKERING, JJ.

OPINION

By the Court, PICKERING, J.:

Bryan Fergason appeals the district court's entry of summary judgment in favor of the Las Vegas Metropolitan Police Department (the State), which resulted in the forfeiture of approximately $125,000 from his bank accounts. Because the State failed to present evidence showing an absence of genuine issue of material fact regarding whether the funds seized from Fergason's bank accounts were subject to forfeiture as proceeds attributable to the commission of a felony, the district court erred by granting summary judgment; and we reverse and remand for further proceedings.

I.

In 2010 Bryan Fergason was convicted of burglary, possession of stolen property, conspiracy to possess stolen property and/or to commit burglary, possession of burglary tools, and larceny. During the preceding criminal investigation, the State had located and seized, among other things, approximately $125,000 from bank accounts kept by Fergason at Bank of America. The State filed a complaint against the seized money in March 2007, pleading a single cause of action in forfeiture pursuant to NRS 179.1164(1). The complaint alleges that the money seized represents proceeds attributable to the commission or attempted commission of a felony.

The State served the forfeiture complaint and summons on Fergason, and he answered, affirming that he was a claimant to the property. The case was then stayed pending the outcome of criminal proceedings. Following this court's affirmance of Fergason's criminal convictions, Fergason v. State, Docket No. 52877, 2010 WL 3310710 (Order of Affirmance, August 4, 2010), the district court lifted the stay in the forfeiture proceedings, and the State moved for summary judgment four days later. After the State filed its motion, Fergason's attorney moved to withdraw from the case, and the motion was granted. Fergason filed his opposition to summary judgment in pro se while incarcerated. In his opposition, Fergason argues straightforwardly: "None of the cited to allegations in the Complaint or Motion for Summary Judgment indicate that the amounts seized from Fergason's account were attributable to felonies allegedly committed by Fergason."

Following a hearing, the district court granted summary judgment in favor of the State. In its findings of undisputed fact, the district court recited the convictions in the criminal cases; and in its conclusions of law, the district court said, "[t]he Judgments of Conviction in the criminal cases have become final. The proof of the facts necessary to sustain the conviction are, therefore, conclusive evidence in this forfeiture action against [Fergason] and satisfy all elements of the forfeiture complaint." The court further stated that as to Fergason, "the money was seized from his bank account as proceeds from illegal activities." This appeal followed.

II.

A.

We review a district court's grant of summary judgment "de novo, without deferenceto the findings of the lower court." Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005) (citing GES, Inc. v. Corbitt, 117 Nev. 265, 268, 21 P.3d 11, 13 (2001) ). Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." NRCP 56(c).

"If the moving party will bear the burden of persuasion, that party must present evidence that would entitle it to a judgment as a matter of law in the absence of contrary evidence." Cuzze v. Univ. & Cmty. Coll. Sys., 123 Nev. 598, 602, 172 P.3d 131, 134 (2007). Put more simply: "The burden of proving the nonexistence of a genuine issue of material fact is on the moving party." Maine v. Stewart, 109 Nev. 721, 726–27, 857 P.2d 755, 758 (1993) (citing Shapro v. Forsythe, 103 Nev. 666, 668, 747 P.2d 241, 243 (1987) ).

When the party moving for summary judgment fails to bear his burden of production, "the opposing party has no duty to respond on the merits and summary judgment may not be entered against him." Maine, 109 Nev. at 727, 857 P.2d at 759 (reversing summary judgment where burden of production never shifted) (citing Clauson v. Lloyd, 103 Nev. 432, 435, 743 P.2d 631, 633 (1987) (reversing summary judgment where movant did not meet the test in NRCP 56 )); see NRCP 56(e) (summary judgment burden shifts to the non-movant only when the motion is "made and supported as provided in this rule"). Because the State was the plaintiff and the movant, it was required to show that no genuine issue of material fact existed as to its claim for forfeiture. Cuzze, 123 Nev. at 602, 172 P.3d at 134.

The district court ruling on a motion for summary judgment "must view the evidence presented through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (applying rule to "clear and convincing" standard); Bulbman, Inc. v. Nev. Bell, 108 Nev. 105, 110–11, 825 P.2d 588, 592 (1992) (affirming summary judgment for defendant where plaintiff failed to show genuine issue of material fact as to fraud by clear and convincing evidence); see also Kaelin v. Globe Commc'ns Corp., 162 F.3d 1036, 1039 (9th Cir.1998) ; Flowers v. Carville, 310 F.Supp.2d 1157, 1161 (D.Nev.2004).

In this case the State's complaint consists of a single cause of action pursuant to NRS 179.1164(1), which provides that "[a]ny proceeds attributable to the commission or attempted commission of any felony" are property "subject to seizure and forfeiture in a proceeding for forfeiture." NRS 179.1164(1)(a). " ‘Proceeds' means any property, or that part of an item of property, derived directly or indirectly from the commission or attempted commission of a crime." NRS 179.1161.

Nevada law is clear that forfeiture of funds seized from a bank account will not stand in the absence of evidence linking the money to criminal activity. Schoka v. Sheriff, Washoe Cnty., 108 Nev. 89, 91, 824 P.2d 290, 291–92 (1992) (reversing forfeiture where there was "no evidence which traced any of the funds in the account to any criminal activity"). At the time the court decided Schoka, the State's burden of proof was by a preponderance of the evidence, and the burden is even higher today. As amended in 2001, NRS 179.1173(4) now requires the State to "establish proof by clear and convincing evidence that the property is subject to forfeiture,"see 2001 Nev. Stat., ch. 176, § 1, at 874; Hearing on S.B. 36 Before the Senate Comm. on the Judiciary (Statement of Sen. Mark A. James, Chairman, Senate Comm., on Judiciary) (amendment raising the State's burden to clear and convincing evidence is designed to avoid "injustice" where government's proof is "not so compelling"), a burden that applies to each element of the claim. See Albert H. Wohlers & Co. v. Bartgis, 114 Nev. 1249, 1260–61, 969 P.2d 949, 957–58 (1999) (citing Bulbman, 108 Nev. at 111, 825 P.2d at 592, for the proposition that each element of a fraud claim must be proven by clear and convincing evidence). Therefore, the State must establish by clear and convincing evidence (1) that a felony was committed or attempted, and (2) that the funds seized from Fergason's bank account are "attributable to" or "derived directly or indirectly from" the commission or attempt. NRS 179.1161 ; NRS 179.1164(1)(a) ; NRS 179.1173(4).

Clear and convincing evidence is a higher standard than proof by the preponderance of the evidence and requires " ‘evidence establishing every factual element to be highly probable.’ " In re Discipline of Drakulich, 111 Nev. 1556, 1567, 908 P.2d 709, 715 (1995) (quoting Butler v. Poulin, 500 A.2d 257, 260 n. 5 (Me.1985) ). Thus, to determine whether the State's motion was properly supported, we must assess whether the record contains evidence from which a reasonable jury could find it highly probable that the money seized from Fergason was attributable to the commission of a felony. We examine each argument offered by the State to determine whether it satisfied its burden.

1.

In Nevada, where a forfeiture plaintiff presents proof that the claimant has been convicted of a criminal offense and that the conviction is final, then such proof is "conclusive evidence of all facts necessary to sustain the conviction." NRS 179.1173(6). The State argued below that Fergason's convictions for burglary, larceny, and possession of stolen property provide conclusive evidence sufficient to satisfy its summary judgment burden because "[t]he cause of action set forth in this forfeiture action mirrors the criminal charges set forth in the criminal cases" and is "supported by the same facts." However, the State did not demonstrate that the source of funds in Fergason's bank account was "necessary to sustain" his convictions as required by NRS 179.1173(6), and in fact the record indicates otherwise.

Fergason's criminal informations detail the facts on which his burglary charge is premised, as well as catalog the tangible items on which his larceny and possession of stolen property charges are based. First, burglary—unlawful entering with intent to commit larceny—bears no "proceeds" as a matter of law; it concerns the act of unlawful entry and does not require the acquisition of money or property. See NRS 205.060. Possession of stolen property, without more, likewise does not establish the funds in Fergason's bank accounts as the proceeds of those crimes but, rather, his possession of specific items of...