Rubin v. Rubin (In re Rubin)

• Decision Date: 01 July 2021
• Docket Number: No. 80300,80300
• Citation: 491 P.3d 1
• Court: Nevada Supreme Court
• Parties: In the MATTER OF the GUARDIANSHIP OF the Person and Estate of Ida RUBIN, an Adult Protected Person. Jason Rubin, Appellant, v. Ida Rubin; and Mark Rubin, Respondents.

491 P.3d 1

In the MATTER OF the GUARDIANSHIP OF the Person and Estate of Ida RUBIN, an Adult Protected Person.Jason Rubin, Appellant,

v.Ida Rubin; and Mark Rubin, Respondents.

No. 80300

Supreme Court of Nevada.

FILED JULY 01, 2021

Solomon Dwiggins & Freer, Ltd., and Alan D. Freer, Mark A. Solomon, and Ross E. Evans, Las Vegas, for Appellant.

Hutchison & Steffen, PLLC, and Michael K. Wall, Las Vegas, for Respondent Ida Rubin.

Grant Morris Dodds, PLLC, and Jason M. Aivaz, Henderson, for Respondent Mark Rubin.

BEFORE THE SUPREME COURT, EN BANC.

OPINION

By the Court, HARDESTY, C.J.:

NRS 159.044(2)(i)(1) provides that a petition for adult guardianship must include a certificate from a physician or a qualified individual demonstrating need for a guardianship. We conclude that this certificate is required for the district court to consider the petition but the certificate does not need to be based on an in-person examination of the proposed protected person. Furthermore, whether the petition and certificate warrant the need for a guardianship or further proceedings is within the sound discretion of the district court. In this case, we conclude that although the district court relied on the wrong reasoning, the district court ultimately did not abuse its discretion when it dismissed the guardianship petition because the petition did not demonstrate that the proposed protected person was incapacitated.

FACTS AND PROCEDURAL HISTORY

Appellant Jason Rubin filed a petition for appointment of temporary guardian and to establish a general permanent guardianship over his mother, respondent Ida Rubin.¹ Jason's petition requested a guardianship over Ida's estate and her person.² In his petition, Jason alleged that Ida suffered from paranoid schizophrenia

and that her mental health was declining. Jason attached to his petition call logs from the Las Vegas Metropolitan Police Department (LVMPD), as well as incident reports from the security team at Ida's residence, Securitas USA, which detailed events where Ida would ask the officers to perform nonsensical acts.³ Ida objected to Jason's petition for guardianship, attesting that she was "competent enough to handle [her] own medical and financial affairs." Respondent Mark Rubin, Ida's son and Jason's brother, joined Ida's objection to Jason's petition for guardianship. The district court held a hearing and denied the petition without prejudice, finding that under NRS 159.044(2)(i)(1) a guardianship over an adult proposed protected person cannot be granted without a physician's certificate. The district court ordered that Jason could refile the petition if he was able to obtain a physician's certificate.

Thereafter, Jason filed a "Petition for Rehearing and Reconsideration of Petition for Appointment of Guardians of the Person and Estate of Ida Rubin." The petition for rehearing incorporated the first guardianship petition, alleging the same facts, but it also included a physician's certificate prepared by Dr. Gregory P. Brown. Dr. Brown reviewed the LVMPD's call logs, the original petition for appointment of guardianship, and email correspondence from Securitas USA to make his evaluation. Dr. Brown did not personally evaluate Ida. However, based upon his review of the information provided to him, Dr. Brown opined in the certificate that the "series of events [reviewed] ... strongly suggest[s] the presence of psychosis

[a substantial break in the perception of consensual reality]." (Third alteration in original.) Dr. Brown further stated that he believed that Ida's "delusional beliefs ... placed her at risk of harm [either to self or others]." (Alteration in original.) Dr. Brown recommended that Ida "receive a complete neurological evaluation and a complete psychiatric evaluation to assess her mental functioning and possible need for treatment... [, which] could also provide further data to support [a] need for [a] guardianship."

At a hearing on the rehearing petition, the district court entertained arguments from both parties’ counsel, but no evidence was offered or admitted. Despite the physician's certificate, the district court denied the petition and did not appoint a guardian over Ida or her estate. The district court reasoned that the physician's certificate Jason attached to his petition for rehearing was insufficient because it "was based on hearsay and double hearsay" and "was made without having seen [Ida]." The district court also found that, although "there is a concern for [Ida]’s well being and safety, ... [the] guardianship may not be necessary because there are less restrictive means in place," referring to the fact that Mark is listed as Ida's attorney-in-fact in her power of attorney. In declining to reconsider the guardianship petition, the district court ordered that it would "not open discovery or require a[ medical] evaluation of... I[da] ... as it is an inappropriate shifting of the burden." Jason appealed.

DISCUSSION

This court has jurisdiction over the appeal

As an initial matter, we must decide whether Jason's appeal was timely filed. Ida argues that the district court's first order, which denied the guardianship petition, was the final, appealable judgment. Because Jason filed an appeal only from the district court's second order, which denied the rehearing petition, Ida contends that his appeal was untimely filed. Conversely, Jason argues that the first order denying his petition for guardianship was not a final order and was therefore not appealable.

We conclude that the district court's first order essentially dismissed the guardianship petition with leave to amend, making it an interlocutory, nonappealable order. See Bergenfield v. BAC Home Loans Servicing, LP , 131 Nev. 683, 685, 354 P.3d 1282, 1284 (2015) (holding that "a district court order dismissing a complaint with leave to amend is not final and appealable"). At the guardianship petition hearing, Jason asked the district court if it could give him time to obtain a physician's certificate before dismissing the petition. The district court responded that it was not dismissing the petition, but rather, was denying it until Jason could refile with a physician's certificate. The written order expressly stated that the denial was without prejudice and Jason could refile the petition if he obtained a physician's certificate. Although the district court did not explicitly characterize its order as one allowing leave to amend, it can be implied from the effect of the order and from the district court's reasoning at the hearing on the guardianship petition. See id . at 684, 354 P.3d at 1283 (stating that "[t]his court determines the finality of an order or judgment by looking to what the order or judgment actually does , not what it is called" (internal quotation marks omitted)). This makes the first order an interlocutory order that is not appealable.

By contrast, the order on rehearing disposed of all the issues in the case and left nothing for the district court to consider in the future. See Barbara Ann Hollier Tr. v. Shack, 131 Nev. 582, 590, 356 P.3d 1085, 1090 (2015) (stating that "a final judgment is one that disposes of all the issues presented in the case, and leaves nothing for the future consideration of the court, except for post-judgment issues such as attorney[ ] fees and costs" (internal quotation marks omitted)). The fact that Jason misnamed his amended petition as a "[p]etition for [r]ehearing and [r]econsideration" is of no consequence because it was, in effect, an amended petition that incorporated the first petition and also included a physician's certificate. See Bergenfield, 131 Nev. at 684, 354 P.3d at 1283. Therefore, we conclude that we have jurisdiction over this appeal because Jason timely filed a notice of appeal from the district court's final order.⁴ NRAP 3A(b)(1).

The district court did not abuse its discretion by denying the guardianship petition

Jason argues that the district court erred when it concluded that a physician's certificate is required for a guardianship petition. And, he argues, even if one is required, the district court erred in finding that his physician's certificate was insufficient. Additionally, Jason argues that the district court erred when it denied the petition without allowing discovery or holding an evidentiary hearing.

"Absent a showing of abuse, we will not disturb the district court's exercise of discretion concerning guardianship determinations. However, we must be satisfied that the district court's decision was based upon appropriate reasons." In re Guardianship of L.S. & H.S. , 120 Nev. 157, 163, 87 P.3d 521, 525 (2004) (footnote omitted) (internal quotation marks omitted). Moreover, "[t]his court reviews questions of statutory construction de novo."

Chur v. Eighth Judicial Dist. Court , 136 Nev. 68, 71, 458 P.3d 336, 339 (2020). "If the plain meaning of a statute is clear on its face, then [this court] will not go beyond the language of the statute to determine its meaning." Id. (alteration in original) (internal quotation marks omitted).

The statute at issue here, NRS 159.044, sets forth the requirements for a guardianship petition. NRS 159.044(2) provides that "[t]o the extent the petitioner knows or reasonably may ascertain or obtain, the petition must include, without limitation " certain information and documents. (Emphasis added.) Such information and documents include "[a] certificate signed by a physician" or other qualified person that states (1) "[t]he need for a guardian;" (2) "[w]hether the proposed protected person presents a danger to himself or herself or others;" (3) "[w]hether the attendance of the proposed protected person at a hearing would be detrimental to the proposed protected person;" (4) "[w]hether the proposed protected person would comprehend the reason for a hearing or contribute to the proceeding; and" (5) "[w]hether the proposed protected person is capable of living independently with or without assistance." NRS...