Maheu v. Eighth Judicial Dist. Court In and For Clark County, Dept. No. 6

• Decision Date: 28 January 1972
• Docket Number: No. 6663,No. 6 and T,6 and T,6663
• Parties: Robert A. MAHEU, individually and doing business as Robert A. Maheu Associates, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada IN AND FOR the COUNTY OF CLARK, DEPT.he Honorable Howard W. Babcock, Judge Thereof, Respondent.
• Court: Nevada Supreme Court

Page 709

493 P.2d 709

88 Nev. 26

Robert A. MAHEU, individually and doing business as Robert A. Maheu Associates, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada IN AND FOR the COUNTY OF CLARK, DEPT. No. 6 and The Honorable Howard W. Babcock, Judge Thereof, Respondent.

No. 6663.

Supreme Court of Nevada.

Jan. 28, 1972.

Rehearing Denied March 14, 1972.

Morton Galane, Las Vegas, for petitioner.

Davis & Cox, New York City, and Morse, Foley & Wadsworth, Las Vegas, for respondent.

OPINION

GUNDERSON, Justice:

In these original proceedings, Robert A. Maheu seeks certain extraordinary writs directed to the respondent court, in which litigation is pending that involves Maheu, Hughes Tool Company ('HTCo'), Howard R. Hughes (HTCo's sole shareholder), and others. Specifically, Maheu requests these writs:

(1) prohibition arresting proceedings on a 'Motion for a Stay and for an Extension of Time,' filed by HTCo;

(2) mandamus commanding respondent to vacate an ex parte order that purports to stay the deposition of HTCo by its managing agent, Howard R. Hughes;

(3) mandamus commanding respondent to furnish Maheu opportunity 'to file and have entertained a motion for the imposition of a conditional sanction to ensure the appearance of Howard R. Hughes for the taking of his deposition'; and

(4) mandamus commanding respondent to vacate that provision of an 'Order Sealing Exhibit' which curtails disclosure of the contents of certain documents.

Of these requests, we grant the first two for reasons stated in this Opinion. With those matters determined by us, we are confident respondent will promptly consider and decide any motion for a conditional sanction Maheu may address to it; thus, we believe Maheu will now have a plain, speedy and adequate remedy concerning the matter involved in his third request; therefore we deny it, without prejudice. While Maheu's counsel may have acquiesced in the court's entry of an order precluding disclosure of his exhibit, we have no doubt that, subject to appropriate safeguards, Maheu's counsel is nonetheless entitled to copies thereof to prepare his case, and during deposition should be allowed to examine Hughes on the original documents. However, again, we are confident the court will now allow such access upon proper application; thus Maheu's fourth request for relief is also denied, without prejudice.

A complaint is pending in the respondent court by Robert A. Maheu, plaintiff, against Chester C. Davis, Frank William Gay, and C. J. Collier, Jr., as defendants, claiming damages for wrongful interference with Maheu's alleged right to control certain business properties. Another complaint is pending in the name of HTCo, as plaintiff, seeking an injunction and damages against Maheu, as defendant, for wrongful refusal to surrender control of business properties and records. In addition to pleading defenses to HTC's complaint, Maheu has stated a counterclaim against Hughes and HTCo.

On December 12, 1971, while conducting combined hearings on motions for preliminary injunction filed by Maheu and HTCo, the court entered on 'Order Sealing Exhibit,' providing that a documentary exhibit offered by Maheu be sealed in an envelope, which should not be reopened except on application to the court, and that Maheu was prohibited from making 'any further disclosure, dissemination or other use of' the exhibit.

On December 24, 1970, the court entered a preliminary injunction from which Maheu has taken an appeal, the merits of which are not before us. The injunction contains provisions requiring Maheu to 'return' records, with which Maheu claims to have complied to the extent he understands the obligations created thereby. ¹

On December 31, 1970, Maheu served HTCo's counsel with notice under NRCP 26(a), advising them he would take the deposition of HTCo, by its managing agent, Howard R. Hughes, at 10:00 a.m., January 11, 1971, at the office of Maheu's attorney. No one appeared pursuant to the notice. Instead, at 10:33 a.m. on January 11 HTCo's counsel filed a paper styled 'Motion to Vacate Notice to Take Deposition,' asserting that (1) the discovery sought was 'premature,' (2) the discovery was 'not in conformity with applicable provisions of the Nevada Rules of Civil Procedure nor with other applicable rules of law,' and (3) HTCo 'may not be compelled to produce Howard R. Hughes as its managing agent.' The same day, at 10:35 a.m., HTCo's counsel procured an ex parte order, purporting to stay the deposition 'until further order of the court following hearing and determination of said Motion.' The motion was never heard.

On January 11, Maheu applied for an order directing the amount of the supersedeas bond to be posted by him to obtain a stay of the preliminary injunction pending his appeal. January 14, the court denied this application.

On January 19, at 5:14 p.m., counsel purporting to act only for HTCo filed the 'Motion for a Stay and for an Extension of Time' that is the subject to Maheu's application for a writ of prohibition. This 'motion' asked the court: (1) 'for a stay of all actions, proceedings, processes and other activities by or on behalf of Robert A. Maheu . . . other than for compliance with the prior orders of this court dated December 12 and 24, 1970, relating to certain documents and other property to be returned to HTCO, until MAHEU has fully complied with and satisfied the Court as to his compliance with said prior orders of this court'; and (2) for an extension of time for 'any party' to move, answer or otherwise respond to pleadings until after Maheu 'shall have fully complied and satisfied the court as to his compliance with said prior orders of this Court. ² By ex parte order filed at 5:19 p.m., the court extended the time of 'any party' to plead, as requested by the 'motion,' and 'stayed' depositions of Frank W. Gay and Chester C. Davis (respectively noticed by Maheu for January 25 and February 1) until 'further order of this Court following hearing and determination of the Motion to Stay.'

On February 5, Maheu served another notice to depose Hughes, and moved the court to vacate its ex parte 'stay' order of January 11. March 3, the court denied Maheu's motion 'without prejudice.'

April, 1, the court conducted a conference to schedule the order in which pending matters would be heard. The court decided, over protests by Maheu's counsel, that it would not consider any other matters until such time as it had heard and determined HTCo's 'Motion for Stay and for an 'Extension of Time.' Thereafter, the court held hearings at which it permitted HTCo's counsel to call numerous persons to interrogate them concerning the nature and quantity of records removed from premises of HTCo, where Maheu and his company had conducted business (including managerial services for HTCo) until HTCo undertook to terminate its relationship with Maheu. These proceedings continued from time to time until June 12, when our court stayed them to consider the petition now before us.

I.

Under NRS 34.320, the writ of prohibition 'arrests the proceedings of any tribunal, corporation, board or person exercising judicial functions, when such proceedings are without or in excess of jurisdiction.' As a corollary, prohibition will arrest proceedings in aid of an order that is not binding on the petitioner. See: State ex rel. Friedman v. Dist. Ct., 81 Nev. 131, 399 P.2d 632 (1965), and Culinary Workers v. Court, 66 Neb. 166, 207 P.2d 990 (1949), both granting prohibition against proceedings in aid of a restraining order improperly issued without a bond. Thus, if the injunction's provisions requiring Maheu to 'return' records failed for any reason to bind him, then prohibition lies against proceedings instituted to enforce those provisions.

Maheu contends that proceedings predicated upon mandatory provisions of the preliminary injunction are therefore in excess of the district court's jurisdiction because although he appealed, posted a proper appeal bond, and moved for an order fixing the supersedeas bond necessary to obtain a stay during appeal, the district court unlawfully denied his motion. If the injunction's mandatory provisions are deemed to 'direct the assignment or delivery of documents, or personal property' within the meaning of NRCP 73(d) (2), Maheu urges, then under that rule he had an absolute right to enter a bond '(i)n lieu of the assignment and delivery.' However, if NRCP 73(d) does not require a supersedeas bond, Maheu argues, his appeal itself effected an automatic stay, because NRCP 73(d)(4) states '(i)n cases not provided for . . . the giving of an appeal bond . . . shall stay proceedings in the court below upon the judgment or order appealed from.' As Maheu in fact sought to have the court fix the supersedeas required of him, we may assume the case is governed by NRCP 73(d)(2).

The pertinent part of that rule was derived from Section 407 of our 1911 Civil Practice Act, and is in substantially the same form today as when this court decided State ex rel. Pacific Reclamation Co. v. Ducker, 35 Nev. 214, 127 P. 990 (1912). There we said: 'On an appeal from a mandatory injunction requiring defendants to deliver property to plaintiffs, as in this case, an appeal from the order entitles the defendants, as a matter of right, upon the filing of a proper stay bond, to a stay of proceedings under the injunction. In such a case, the fixing of the amount of a stay bond is not a matter of discretion with the trial court.' 35 Nev., at 227; 127 P., at 994; accord, Dodge Bros. v. General Petroleum Corp., 54 Nev. 245, 10 P.2d 341 (1932). We can hardly depart from our prior rulings, for they not only appear correct, but have been part of our practice for more than half a century; the statute they interpreted was re-adopted by our legislature as part of our 1937 new trials and appeals act (Stat. of Nev., 1937, ch. 32, p. 53, at p. 59); this court itself adopted those...