Nagez v. Kwon

• Decision Date: 11 September 2019
• Docket Number: No. 76673-COA,76673-COA
• Parties: IGOR NAGEZ, AN INDIVIDUAL, Appellant, v. JAMES W. KWON, AN INDIVIDUAL; JAMES KWON LLC; ESTATE OF JEFFREY G. POIRIER; CO-ADMINISTRATORS OF THE ESTATE OF JEFFREY G. POIRIER; AND ELAINE PATENAUDE, AN INDIVIDUAL, Respondents.
• Court: Nevada Court of Appeals

IGOR NAGEZ, AN INDIVIDUAL, Appellant, v. JAMES W. KWON, AN INDIVIDUAL;JAMES KWON LLC; ESTATE OF JEFFREY G. POIRIER;CO-ADMINISTRATORS OF THE ESTATE OF JEFFREY G. POIRIER;AND ELAINE PATENAUDE, AN INDIVIDUAL, Respondents.

No. 76673-COA

COURT OF APPEALS OF THE STATE OF NEVADA

September 11, 2019

ORDER AFFIRMING IN PART, REVERSING IN PART AND REMANDING

Igor Nagez appeals from a district court order granting summary judgment in a contract and tort action. Eighth Judicial District Court, Clark County; Stefany Miley, Judge.

Following the intestate death of Nagez's former partner, Jeffrey Poirier, Nagez and Elaine Patenaude—Poirier's mother and sole heir—retained attorney James Kwon to represent them in connection with a possible claim for wrongful death. Kwon advised Nagez and Patenaude that a probate action would need to be filed to open Poirier's estate before they would be able to file a wrongful death action. All three then signed a retainer agreement relating to the probate action. Nagez and Patenaude also signed an agreement purporting to divide Poirier's property between them in accordance with his last wishes. They signed yet another written agreement wherein they promised to split evenly between them any funds recovered in the wrongful death action, whether they be recovered by the estate, Nagez, or Patenaude individually.

Kwon went on to initiate both the probate and wrongful death actions. The district court presiding over the wrongful death case dismissed Nagez as a plaintiff on grounds that he did not have standing to bring the claim under Nevada's wrongful death statute. Patenaude and the estate ultimately settled that claim, and Nagez later filed the underlying action against the respondents. In his second amended complaint, Nagez asserted multiple causes of action, alleging primarily that Kwon's law firm engaged in legal malpractice, breached fiduciary duties and contracts, and defrauded Nagez in connection with both the wrongful death and probate matters. Nagez additionally alleged that Patenaude breached their written agreements and that she, the estate, and Kwon's law firm have been unjustly enriched by retaining funds that Nagez claims are owed to him. Finally, Nagez alleged that Kwon's treatment of him throughout their professional relationship amounted to negligent infliction of emotional distress.

Following the close of discovery, respondents moved for summary judgment. In his opposition to the motion, Nagez failed to provide affidavits or declarations to support many of the facts or allegations stated therein, but he did provide various documents, including excerpts of the record from the probate case, copies of the written agreements at issue, and a couple of partial deposition transcripts. The district court concluded that Nagez had failed to demonstrate a genuine issue of material fact with respect to any of his claims and granted summary judgment in favor ofrespondents. In its written order, the district court also purported to dismiss all of Nagez's claims with prejudice. This appeal followed.

This court reviews a district court's order granting summary judgment de novo. See Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper if the pleadings and all other evidence on file demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. Id. When deciding a summary judgment motion, all evidence must be viewed in a light most favorable to the nonmoving party. Id. General allegations and conclusory statements do not create genuine issues of fact. Id. at 731, 121 P.3d at 1030-31.

We first address Nagez's argument that summary judgment was unwarranted because he provided evidence showing that, under his agreement with Patenaude, he was entitled to half of the proceeds—as well as litigation costs—from the settlement of the wrongful death litigation. It is undisputed that Nagez and Patenaude entered into the agreement purporting to divide the proceeds as Nagez states. However, the district court granted summary judgment on this issue on grounds that, at the time of the motion practice below, Nagez had a pending creditor's claim in the probate action wherein he sought to recover settlement proceeds and litigation costs from the estate. To the extent Nagez asserts claims seeking to have the district court in this case distribute what may be assets of the estate, the district court was correct that those matters should be litigated only in the probate case. See Bergeron v. Loeb, 100 Nev. 54, 58, 675 P.2d 397, 400 (1984) (noting that, in probate, "the court acquires jurisdiction over the estate and all persons for the purpose of determining their rights to anyportion of the estate," and it does so "to the exclusion of any other court, even to the point of enjoining proceedings in the other court"); Smith v. Hutchins, 93 Nev. 431, 432, 566 P.2d 1136, 1137 (1977) (holding that a party is prohibited from splitting causes of action and maintaining separate actions on the same claims).

But even under these circumstances, it was improper for the district court to grant summary judgment on those claims and dismiss them with prejudice, which amounts to a final judgment with preclusive effect.¹ See Lee v. GNLV Corp., 116 Nev. 424, 427-28, 996 P.2d 416, 418 (2000) (noting that an "order granting summary judgment, which adjudicate[s] the rights and liabilities of all parties and dispose[s] of all issues presented in the case, [i]s final"); see also Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1054, 194 P.3d 709, 713 (2008) (noting that the entry of a valid final judgment may lead to the application of claim preclusion). To the extent Nagez asserted claims that truly are duplicative of the asset distribution matters pending in the probate case, the district court should have dismissed them without prejudice for lack of jurisdiction. See Five Star, 124 Nev. at 1054 n.27, 194 P.3d at 713 n.27 (noting that final judgments for purposes of claim preclusion do not include cases that are "dismissed without prejudice or for some reason (jurisdiction, venue, failure to join aparty) that is not meant to have preclusive effect"). Accordingly, we reverse the district court's order granting summary judgment on those claims.

However, with respect to Nagez's claims against the estate and Patenaude individually stemming from his written agreements with Patenaude, we see no reason why the district court would not have jurisdiction to consider those claims, at least insofar as they do not involve the distribution of estate assets. Thus, with regard to these claims, the district court erred in granting summary judgment on jurisdictional grounds.

We recognize that fully adjudicating these claims may require the district court to await final determinations from the probate court. For example, with respect to Nagez's claim to the settlement proceeds, because the probate matter is ongoing, we cannot discern from the record in this case the extent to which the proceeds from the wrongful death settlement are the property of the estate or of Patenaude individually. See NRS 41.085(4)-(5) (providing that both heirs and personal representatives may maintain wrongful death actions and recover different categories of damages). Accordingly, to the extent that the ultimate resolution of that claim or any other remaining claims may depend upon determinations made in the probate case, the district court is free to stay this action pending completion of the probate case. See Maheu v. Eighth Judicial Dist. Court, 89 Nev. 214, 217, 510 P.2d 627, 629 (1973) ("[T]he power to stay proceedings is incidental to the power...