Nuveda, LLC v. Eighth Judicial Dist. Court of Nev.

• Decision Date: 23 September 2021
• Docket Number: No. 82649,82649
• Parties: NUVEDA, LLC, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Elizabeth Gonzalez, District Judge, Respondents, and Shane Terry; Phil Ivey; and Dotan Y. Melech, Receiver for CWNevada, LLC, a Nevada Limited Liability Company, Real Parties in Interest.
• Court: Nevada Supreme Court

495 P.3d 500

NUVEDA, LLC, Petitioner,

v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Elizabeth Gonzalez, District Judge, Respondents,andShane Terry; Phil Ivey; and Dotan Y. Melech, Receiver for CWNevada, LLC, a Nevada Limited Liability Company, Real Parties in Interest.

No. 82649

Supreme Court of Nevada.

FILED SEPTEMBER 23, 2021

Law Office of Mitchell Stipp and Mitchell Stipp, Las Vegas, for Petitioner.

Mushkin & Coppedge and Michael R. Mushkin and L. Joe Coppedge, Las Vegas, for Real Parties in Interest.

BEFORE THE SUPREME COURT, PARRAGUIRRE, STIGLICH, and SILVER, JJ.

OPINION

By the Court, STIGLICH, J.:

Original petition for a writ of prohibition or, in the alternative, mandamus challenging a district court order denying a motion to transfer indirect contempt proceedings to another judge under NRS 22.030(3).

NRS 22.030(3) provides that in cases of indirect contempt, "the judge of the court in whose contempt the person is alleged to be shall not preside at the trial of the contempt over the objection of the person." This statute gives accused contemnors a peremptory challenge, which must be granted if the objection is timely and properly made. Here, petitioner NuVeda, LLC, moved for a change of judge under NRS 22.020(3) 37 days after the court set a date for the contempt trial. The district court denied this motion as untimely, and NuVeda petitioned this court for extraordinary writ relief. We hold that motions for a change of judge under NRS 22.030(3) must be made with reasonable promptness under the circumstances, and here, the district court did not err by determining the motion was untimely. Accordingly, we deny the petition.

FACTS AND PROCEDURAL HISTORY

This contempt case arises out of a relatively complex business dispute. Petitioner NuVeda, in conjunction with CWNevada, LLC, formed CWNV as a joint venture in 2017 for the purpose of building and operating cannabis establishments. CWNevada was later placed under receivership. NuVeda and its managing member, Dr. Pejman Bady, allegedly dissolved CWNV and later created a new entity with the same name. This act not only created difficulties for the receiver, but it also is alleged to violate a court order, constituting contempt. NuVeda denies that it committed contempt, and many of the facts remain disputed. Most of the details of the supposed contempt and the situation underlying it are immaterial to this writ petition.

For our purposes, the critical facts are these. On February 1, 2021, during a hearing on a motion for an order to show cause concerning the alleged contempt, the district court (Judge Elizabeth Gonzalez) found that a show cause order was warranted and scheduled a contempt hearing for March 1. But Dr. Bady had a previously scheduled medical appointment and could not attend on that date. On or around February 22, the district court rescheduled the hearing to April 5. On March 10, NuVeda for the first time invoked NRS 22.030(3) and objected to Judge Gonzalez presiding over the contempt hearing. At a hearing on March 17, the district court stated that while it might have granted the request for a new judge if NuVeda had made such a request sooner, NuVeda had waived any objection when it failed to include one in its prior motion for a continuance. NuVeda denied that it had ever moved for a continuance, pointing out that it had previously stated it was willing to go forward without Dr. Bady. NuVeda renewed its objection under NRS 22.030(3), but the district court overruled the objection.

NuVeda now petitions this court for a writ of prohibition and/or mandamus. It asks us to disqualify Judge Gonzalez from presiding over the contempt hearing and to order the Chief Judge of the Eighth Judicial District Court to randomly reassign that hearing to another judge. We stayed the contempt hearing pending resolution of this writ petition.

DISCUSSION

We will entertain this writ petition

"Because both writs of prohibition and writs of mandamus are extraordinary remedies, we have complete discretion to determine whether to consider them." Cote H . v. Eighth Judicial Dist. Court , 124 Nev. 36, 39, 175 P.3d 906, 908 (2008) ; see Smith v . Eighth Judicial Dist. Court , 107 Nev. 674, 677, 818 P.2d 849, 851 (1991). This court may exercise its discretion to entertain a petition for extraordinary writ relief when "an important issue of law needs clarification and considerations of sound judicial economy and administration militate in favor of [considering] the petition."

Archon Corp. v. Eighth Judicial Dist. Court , 133 Nev. 816, 820, 407 P.3d 702, 706 (2017) (quoting Int'l Game Tech., Inc. v. Second Judicial Dist. Court , 124 Nev. 193, 197-98, 179 P.3d 556, 559 (2008) ). We conclude that our consideration of this writ petition is warranted. NRS 22.030(3) is a procedural rule that is potentially implicated in every indirect contempt hearing, no matter the underlying substantive issues. Just this year, we addressed the timeliness of a motion under NRS 22.030(3), yet that case left open the precise issue presented by this case. See Detwiler v. Eighth Judicial Dist. Court, 137 Nev. ––––, –––– & n.4, 486 P.3d 710, 717 & n.4 (2021). "[B]ecause this petition involves a question of first impression that arises with some frequency, the interests of sound judicial economy and administration favor consideration of the petition." See Cote H., 124 Nev. at 39-40, 175 P.3d at 908.

Standard of review

Here, NuVeda seeks both mandamus and prohibition. It seeks mandamus to the extent it asks us to direct the district court to grant its motion to transfer the contempt proceedings to a new judge, and it seeks prohibition to the extent it asks us to direct Judge Gonzalez not to preside at the contempt hearing. NuVeda appears to argue that Judge Gonzalez was automatically recused, by operation of law, when it filed its objection and therefore she would exceed her legal authority if she were to preside over the hearing.

"A writ of mandamus is available to compel the performance of an act that the law requires as a duty resulting from an office, trust, or station, or to control a manifest abuse of discretion." Agwara v. State Bar of Nev., 133 Nev. 783, 785, 406 P.3d 488, 491 (2017) (internal quotation marks omitted). "A writ of prohibition is the counterpart to a writ of mandamus and may be issued to compel a person or body exercising judicial functions to cease performing beyond its legal authority." Id. (internal quotation marks omitted). Specifically, "[w]hen the district court acts without or in excess of its jurisdiction, a writ of prohibition may issue to curb the extrajurisdictional act." Canarelli v. Eighth Judicial Dist. Court, 136 Nev. 247, 250, 464 P.3d 114, 119 (2020) (internal quotation marks omitted).

"When considering a writ of mandamus, we generally apply a manifest abuse of discretion standard ...." Stephens Media , LLC v. Eighth Judicial Dist. Court , 125 Nev. 849, 860, 221 P.3d 1240, 1248 (2009). In contrast, where a party contends in a petition for a writ of prohibition that the district court has exceeded or is about to exceed its jurisdiction, we review that issue de novo. See Fulbright & Jaworski LLP v. Eighth Judicial Dist. Court , 131 Nev. 30, 35, 342 P.3d 997, 1001 (2015). Because NuVeda seeks both types of relief arising out of the same alleged procedural error, we will review the jurisdictional facts de novo, making separate review for manifest abuse of discretion unnecessary. Still, even when challenging the district court's jurisdiction, "[p]etitioners bear the burden of showing that this court's extraordinary intervention is warranted." Nev. State Bd. of Architecture, Interior Design & Residential Design v . Eighth Judicial Dist. Court, 135 Nev. 375, 377, 449 P.3d 1262, 1264 (2019).

A motion for a new judge under NRS 22.030(3) must be made reasonably promptly

NuVeda argues that the district court was required to grant its request for a new judge because—in its view—a party can object under NRS 22.030(3) at any time before commencement of the trial on contempt. NuVeda contends that disqualification is automatic upon lodging the objection and that objections cannot be waived. Reviewing this matter of statutory interpretation de novo, see Fulbright , 131 Nev. at 35, 342 P.3d at 1001, we hold that objections can be waived if not asserted reasonably promptly.

NRS 22.030(3) provides accused contemnors with a peremptory challenge that serves to "eliminate the possibility of a reasonable apprehension that a judge might not be entirely free from bias in enforcing the orders and decrees of the court of which [s]he is the judge." McCormick v. Sixth Judicial Dist. Court, 67 Nev. 318, 331-32, 218 P.2d 939, 945 (1950). We have described NRS 22.030(3) as "an automatic recusal." Awad v. Wright , 106 Nev. 407, 411, 794 P.2d 713, 715 (1990), abrogated on other grounds by Pengilly v. Rancho Santa Fe Homeowners Ass'n, 116 Nev. 646, 649, 5 P.3d 569, 571 (2000). At the same time, we emphasized that the objection in that case was "timely and properly made." Id. at 410, 794 P.2d at 715. Thus, recusal is not truly "automatic." Rather, the accused contemnor must request recusal, and must do so in a timely fashion.¹

We have recently reaffirmed in Detwiler v. Eighth Judicial District Court that "timeliness is essential, as ‘[g]rounds for disqualifying a judge can be waived by failure to timely assert such grounds.’ " 137 Nev. at ––––, 486 P.3d at 717 (alteration in original) (quoting City of Las Vegas Downtown Redev. Agency v. Hecht , 113 Nev. 644, 651, 940 P.2d 134, 139 (1997) ). The petitioner in Detwiler did not invoke his rights under NRS 22.030(3) until after the hearing had already taken place, which we explained was "untimely under any possible standard." Id. at 717 n.4. Accordingly, we had no reason to consider in detail what would make a motion for a change of judge "timely." We simply held that such a motion made after...