Hughes v. Daccache
| Decision Date | 20 October 2021 |
| Docket Number | No. 82147-COA,82147-COA |
| Citation | 497 P.3d 634 (Table) |
| Parties | Rosalina HUGHES, Individually, Appellant, v. Michel DACCACHE, D.D.S., Individually; and Dr. Michel J. Daccache Oral & Maxillofacial Surgery, Ltd., a Professional LLC, Respondents. |
| Court | Nevada Court of Appeals |
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
In 2015, Hughes met with respondent Michel Daccache, D.D.S., to have a dental implant placed.2 After Dr. Daccache placed Hughes's initial dental implant, over the next several months the implant fell out twice, requiring Dr. Daccache to replace it, using a progressively larger screw each time. The record supports that immediately after Dr. Daccache replaced the implant the second time, Hughes experienced pain and facial swelling.
In August 2016, Hughes expressed her concern to Dr. Daccache about the pain and swelling that she was experiencing in her mouth ever since he installed her implant for the third time. At this meeting, Dr. Daccache obtained a blood sample from Hughes for testing and informed her that he also wanted to perform a biopsy. After the biopsy results came back, Dr. Daccache informed Hughes that she had B-cell lymphoma in her mouth and told her that he could no longer help her.3
In September and October 2016, Hughes saw a number of different medical providers, complaining of pain and swelling in her mouth. One of these providers declined to recommend endodontic treatment but advised Hughes to return to the practitioner who placed her dental implant for reevaluation. Medical records from another provider note that Hughes reported that her face had been in constant pain and swollen since Dr. Daccache placed the implant. Other medical records note that a provider recommended sinus surgery and possible removal of Hughes's dental implant. One medical provider evaluated Hughes for swelling and noted that her dental implant was floating with no surrounding bone.
On November 21, 2016, Hughes filed a handwritten complaint against Dr. Daccache with the Nevada Board of Dental Examiners (dental board complaint). In this complaint, Hughes alleged that she had a massive infection eating away her facial bone and was on antibiotics, all of which was caused by Dr. Daccache's "bad bridge and implant." Hughes stated that she was misdiagnosed with cancer4 and that another dentist informed her that Dr. Daccache should have never performed a bone graph on her bone with an implant. In December 2016. Hughes began chemotherapy. Hughes's implant was removed on December 8, 2016, prior to beginning chemotherapy, and once it was removed Hughes learned that her implant was rotted and corroded, which is as she suspected in her complaint to the board. Hughes's symptoms and pain began to vanish in the days following the removal of the implant.5 She continued to undergo chemotherapy until August 28, 2017.
After Hughes completed chemotherapy, she alleges that subsequent scans revealed her cancer "was a very small, localized lymphoma that had no connection with the significant swelling in her mouth.6 On August 27, 2018, Hughes filed a malpractice lawsuit, which included a mandatory expert affidavit against Dr. Daccache and respondent Dr. Michel J. Daccache Oral and Maxillofacial Surgery, Ltd. In the attached affidavit, an Illinois dentist opined that "Dr. Daccache should have known that Ms. Hughes's many symptoms were caused by an infected dental implant," listed a number of areas where Dr. Daccache's conduct allegedly fell below the standard of care, and asserted that Dr. Daccache was responsible for Hughes's injuries.
Dr. Daccache moved for summary judgment, arguing that the statute of limitations began to run when Hughes filed her dental board complaint on November 21, 2016. Thus, Dr. Daccache argued that Hughes's lawsuit was untimely and should be dismissed. In her opposition, Hughes argued that the statute of limitations did not begin to run until August 28, 2017, the day after Hughes completed chemotherapy and learned that the cancer had no connection to the swelling in her, and that even if she had filed her legal complaint outside the statute of limitations, the statute of limitations should be tolled because Dr. Daccache concealed his malpractice. The district court initially denied Dr. Daccache's motion, noting that when Hughes knew or should have known of the facts giving rise to her cause of action and whether Dr. Daccache concealed material facts from Hughes were both questions for the jury.
Dr. Daccache subsequently filed a motion for reconsideration of the court's denial of his motion for summary judgment. Judge Cory granted Dr. Daccache's motion for reconsideration and ultimately his motion for summary judgment, finding that Senior Judge Bonaventure's previous order was clearly erroneous and merited reconsideration. This appeal followed.
On appeal, Hughes contends that: (1) the district court erred in granting Dr. Daccache's motion for reconsideration because Dr. Daccache failed to satisfy the requirements of NRCP 60(b) ; (2) public policy disfavors reconsideration because Dr. Daccache engaged in "judge shopping"; (3) the district court erred in granting Dr. Daccache's motion for reconsideration; and (4) the district court erred in granting Dr. Daccache's motion for summary judgment. We disagree.
Dr. Daccache did not move for reconsideration under NRCP 60(b) and the rule does not apply
As a preliminary matter, Dr. Daccache did not move for reconsideration pursuant to NRCP 60(b), and the district court did not grant his motion based on this rule. On appeal, Hughes argues that the district court erred in granting Dr. Daccache's motion for reconsideration because Dr. Daccache failed to set forth a basis for reconsideration under NRCP 60(b), such as mistake, inadvertence, surprise, or excusable neglect. Dr. Daccache replies that he did not seek relief under Rule 60(b) but rather properly sought relief under EDCR 2.24.
As the Nevada Supreme Court has clearly explained, NRCP 60(b) applies only to final judgments. By its terms, the rule allows parties to seek relief from ‘a final judgment, order, or proceeding.’ Federal courts have interpreted identical language in the analogous federal rule as permitting a court to grant relief only from a judgment, order, or proceeding that is final. Our conclusion is bolstered by this interpretation, because the Nevada Rules of Civil Procedure are based closely on the federal rules.
Barry v. Linder , 119 Nev. 661, 669, 81 P.3d 537, 542 (2003) (emphases in original) (footnotes omitted), superseded by rule on other grounds as stated in LaBarbera v. Wynn Las Vegas, LLC, 134 Nev. 393, 395, 422 P.3d 138, 140 (2018). An order denying summary judgment is not a final judgment. D.R. Horton, Inc. v. Eighth Judicial Dist. Court, 125 Nev. 449, 454, 215 P.3d 697, 700 (2009) (citing GES, Inc. v. Corbitt , 117 Nev. 265, 268, 21 P.3d 11, 13 (2001) ).
Therefore, Hughes's argument that the district court erred in granting Dr. Daccache's motion for reconsideration because he did not set forth a basis for reconsideration under NRCP 60(b) fails. Because an order denying summary judgment is not a final judgment, Dr. Daccache could not seek relief under Rule 60(b) and did not need to justify reconsideration under the rule and—contrary to Hughes's argument—he did not do so.
Hughes's judge shopping argument is unpersuasive
Hughes argues that Dr. Daccache engaged in "judge shopping" because he was unsatisfied with the senior judge's ruling so he waited months to submit an order on that ruling and then immediately filed a motion for reconsideration with the district court. Hughes relies on Moore v. City of Las Vegas , 92 New 402, 551 P.2d 244 (1976), for the proposition that former District Court Rule (DCR) 27 was intended to prevent judge shopping.7
As a preliminary matter, Hughes failed to present any evidence that Dr. Daccache engaged in judge shopping, and her entire argument is hinged on the fact that Dr. Daccache waited months after the summary judgment hearing to submit the order and notice of entry of order. At no point was Hughes s case transferred to a different department, and the senior judge was only covering the department when he denied Dr. Daccache's motion for summary judgment.
Additionally, this case is distinguishable from Moore. In that case, the City of Las Vegas moved for summary judgment. 92 Nev. at 404, 551 P.2d at 245. The district court denied that motion and a subsequent motion for rehearing. Id. The district court judge then lost his bid for reelection, and the case was assigned to another judge. Id. The City of Las Vegas subsequently filed a second motion for rehearing, which the new judge granted. Id. On appeal, the Nevada Supreme Court noted that former DCR 27 was designed to "prevent ‘judge shopping’ once a motion is granted or denied" and "preclude litigants from attempting to have an unfavorable determination by one district judge overruled by another." Id. at 404, 551 P.2d at 246. Further, the Nevada Supreme Court held, because the City of Las Vegas’ second motion for rehearing "raised no new issues of law and made reference to no new or additional facts" the district court abused its discretion in entertaining the motion. Id. at 405, 551 P.2d at 246.
Former DCR 27, which Hughes raises in her brief, and EDCR 7.12, which are the applicable rules, both provide that the same application, petition, or motion may not be made again except upon the consent in writing of the judge to whom the motion was first made. Unlike in Moore, where the City of Las Vegas filed two motions for rehearing, here, Dr. Daccache did not file the same motion twice. Rather, Dr. Daccache filed one motion for summary judgment, which the senior judge denied, and he then filed one motion for reconsideration. Dr. Daccache's motion for reconsideration was the first time he sought relief from the denial of his summary judgment motion. Because Dr. Daccache did not file the same motion,...
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