Passarelli v. J-Mar Development, Inc., J-MAR

Decision Date26 June 1986
Docket NumberNo. 16394,J-MAR,16394
Citation720 P.2d 1221,102 Nev. 283
PartiesArthur PASSARELLI, Appellant, v.DEVELOPMENT, INC., a Nevada corporation, Respondent.
CourtNevada Supreme Court

R. Paul Sorenson, Las Vegas, for appellant.

Carelli & Miller, Las Vegas, for respondent.

OPINION

PER CURIAM:

J-Mar Development, Inc. (J-Mar) claimed balances due on a construction contract. The matter was called to trial on November 28, 1984, and neither Arthur Passarelli (Passarelli) nor his counsel appeared. After reviewing the documents and hearing the testimony of witnesses, the lower court entered judgment against Passarelli for the sum of $13,247.60 along with interest and costs.

On December 24, 1984, a motion was filed requesting the court to set aside the judgment and grant a new trial. This motion was pursuant to NRCP 59(a)(3), or alternatively, NRCP 60(b)(1). 1 We agree with Passarelli that he is entitled to a new trial. The conduct of his prior counsel constituted excusable neglect and a trial is necessary in order that Passarelli may put forth his defenses.

The Facts

Passarelli had engaged the services of a local attorney to assist him with the J-Mar litigation. Trial was scheduled for November 28, 1984, but neither Passarelli nor his attorney made an appearance. After reviewing the documents and hearing the testimony of witnesses, the lower court entered judgment against Passarelli.

A review of the record reveals that Passarelli's then attorney was the victim of substance abuse. As a result, the attorney's law practice had disintegrated. It was late 1984, that Passarelli's attorney was closing his law office and preparing to enter a treatment program. The secretary of the law office reported that the attorney's performance became erratic in early 1984, and became progressively worse. By August, 1984, the attorney was not coming to the office and was missing most appointments. The secretary felt that this attorney was unable to function after May, 1984, due to his disability. Colleagues of the attorney determined that the law practice had been suffering from inattention for approximately a year. Only when confronted by professional friends and colleagues, did the attorney elect to close his office and seek medical treatment. Additionally, pursuant to the recommendation of the Southern Nevada Disciplinary Board for the State Bar of Nevada, the attorney was transferred to disability inactive status pursuant to SCR 117.

It is now the responsibility of this court to determine whether the conduct of Passarelli's counsel is to be imputed to Passarelli. We agree that to do so would be improper.

Discussion

This court has repeatedly held that cases are to be heard on the merits if possible. E.g., Hotel Last Frontier v. Frontier Prop., 79 Nev. 150, 155, 380 P.2d 293, 295 (1963). The decision to grant or deny a new trial or to set aside a judgment rests with the sound discretion of the lower court. Id. at 153, 380 P.2d 293. However, that discretion must be exercised within established guidelines. In Hotel Last Frontier, this court announced guidelines to be utilized by the lower court in an exercise of such discretion. We determined that there must be a prompt application to remove the judgment; there cannot be an intent merely to delay the proceedings; there must be a showing of good faith, and; a meritorious defense must exist. Id. at 154, 380 P.2d 293.

Here, we note that there was prompt application to set aside the judgment. Additionally, there is no showing that Passarelli's actions were for the purpose of delay. Passarelli was acting in good faith because he felt that he was deprived of the opportunity to present his defenses to the action. We agree. A review of the record reveals the existence of a meritorious defense. There are affidavits which dispute certain charges made by J-Mar. There is also the opinion of counsel, based upon the facts available to him, that a meritorious defense exists. We deem the...

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13 cases
  • Nc-Dsh, Inc. v. Garner
    • United States
    • Nevada Supreme Court
    • October 29, 2009
    ...his client's case. Restatement (Third) of the Law Governing Lawyers § 27 cmt. d (2000); see id. § 22(1). In Passarelli v. J-Mar Development, 102 Nev. 283, 720 P.2d 1221 (1986), we held that a lawyer's professional and psychiatric disintegration due to substance abuse justified an order vaca......
  • Huckabay Props., Inc. v. NC Auto Parts, LLC
    • United States
    • Nevada Supreme Court
    • March 27, 2014
    ...are not present here either. See NC–DSH, Inc. v. Garner, 125 Nev. 647, 656, 218 P.3d 853, 860 (2009); Passarelli v. J–Mar Dev., Inc., 102 Nev. 283, 286, 720 P.2d 1221, 1223–24 (1986). 5. Unlike civil procedure rules governing district court actions, appellate court rules generally do not pr......
  • Stoecklein v. Johnson Elec., Inc.
    • United States
    • Nevada Supreme Court
    • March 24, 1993
    ...part of the moving party is not always necessary to show excusable neglect under NRCP 60(b)(1). See, e.g., Passarelli v. J-Mar Development, 102 Nev. 283, 285-86, 720 P.2d 1221 (1986). Each case depends upon its own facts. In Hotel Last Frontier v. Frontier Property, 79 Nev. 150, 154, 380 P.......
  • Estate of Adams ex rel. Estate v. Fallini
    • United States
    • Nevada Supreme Court
    • December 29, 2016
    ...his professional obligations to his client. See NC–DSH, Inc. , 125 Nev. at 656, 218 P.3d at 860 (discussing Passarelli v. J–Mar Dev., Inc. , 102 Nev. 283, 720 P.2d 1221 (1986) ). Standing alone, that might not warrant relief, as the lawyer is the client's agent and the acts and omissions of......
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