Towbin Dodge, LLC v. Dist. Ct., No. 43750.

Docket NºNo. 43750.
Citation112 P.3d 1063
Case DateJune 09, 2005
CourtSupreme Court of Nevada
112 P.3d 1063
TOWBIN DODGE, LLC, a Nevada Limited Liability Company; Towbin Jeep Eagle, LLC, a Nevada Limited Liability Company; Towbin Nissan, Inc., a Nevada Corporation; and Towbin Automotive, Inc., Doing Business as Towbin Infinity, Petitioners,
v.
The EIGHTH JUDICIAL DISTRICT COURT OF the STATE of Nevada, IN AND FOR THE COUNTY OF CLARK, and the Honorable Kathy A. Hardcastle, District Judge, Respondents, and
Overland Financial Services, LLC, an Arizona Corporation; MAPFS Corp., a Suspended California Corporation; Michael Mackenzie, Trustee of MAPFS, a Suspended California Corporation; Federated Funding, Inc., an Unknown Entity; Robert Dixon, Individually; and Heller Financial, Inc., a Delaware Corporation, Real Parties in Interest.
No. 43750.
Supreme Court of Nevada.
June 9, 2005.

Page 1064

R. Clay Hendrix, Las Vegas, for Petitioners.

Allf, Paustain & Szostek and Nancy L. Allf and Timothy P. Thomas, Las Vegas, for Real Parties in Interest Overland Financial Services, LLC, MAPFS Corp., and Michael MacKenzie.

Santoro, Driggs, Walch, Kearney, Johnson & Thompson and Richard F. Holley and

Page 1065

Oliver J. Pancheri, Las Vegas, for Real Party in Interest Heller Financial, Inc.

Before the Court en Banc.

OPINION

PER CURIAM.


In this petition, we consider whether an affidavit to disqualify a district judge, filed after contested pretrial matters were heard but almost immediately after the alleged basis for disqualification was discovered, was timely. NRS 1.235 sets forth the procedure for disqualifying district judges and requires that an affidavit be filed at least twenty days before trial or at least three days before any contested pretrial matter is heard. We conclude that the statute must be enforced as written. But when new grounds for disqualification are discovered after the statutory time has passed, the Nevada Code of Judicial Conduct provides an additional, independent basis for seeking disqualification through a motion under the governing court rules. Accordingly, since petitioners filed a statutory affidavit, not a motion under the Nevada Code of Judicial Conduct, their affidavit was untimely, and we deny the petition.

FACTS

Attorney R. Clay Hendrix represents the petitioners, plaintiffs in the underlying district court case, Towbin Dodge, LLC, et al. v. Overland Financial Services, LLC, et al. (the Towbin case). The Towbin case is assigned to respondent Chief Judge Kathy A. Hardcastle. Petitioners concede that Judge Hardcastle heard and ruled upon several pretrial motions in the Towbin case before they moved to disqualify the judge on August 3, 2004.

Hendrix also represented a plaintiff in another case before Judge Hardcastle, styled Benoy v. Fitzgeralds Las Vegas, Inc. (the Benoy case). The Benoy case involved different parties and was unrelated to the Towbin case. Hendrix began working on the Benoy case while employed at the Law Offices of Richard McKnight, P.C. Hendrix then left to start his own firm, and he states that the termination of his relationship with McKnight was "less than cordial." McKnight filed an attorney's lien in the Benoy case.

Upon learning that the Benoy case had settled, McKnight filed a motion to adjudicate the attorney's lien. The hearing on this motion took place before Judge Hardcastle on August 2, 2004. At the hearing, McKnight represented that when Hendrix left McKnight's employ, they had orally agreed to equally split any contingency fees on files Hendrix took with him. Hendrix disputed McKnight's representation and stated that no agreement had been reached. Hendrix further contended that the only work he performed on the Benoy case while employed with McKnight was drafting one demand letter and a simple complaint. According to Hendrix, he performed virtually all of the work on the matter after terminating his relationship with McKnight. At the hearing, Judge Hardcastle ruled that the contingency fee in the Benoy case should be split equally between Hendrix and McKnight.

The next day, August 3, 2004, petitioners filed an affidavit of bias and prejudice under NRS 1.235 in the Towbin case, seeking to disqualify Judge Hardcastle. Petitioners assert that by ruling as she did, Judge Hardcastle necessarily found Hendrix to be not credible, and thus she is biased against him.

On August 4, 2004, Judge Hardcastle struck the affidavit as untimely, stating that she had "heard and ruled on many pre-trial motions in this case." But she granted a temporary stay so that petitioners could file a writ petition with this court.

Petitioners filed the instant petition, which challenges Judge Hardcastle's order striking the affidavit. Petitioners also ask this court to consider the merits of their request and to disqualify Judge Hardcastle. We granted a stay and directed the real parties in interest to file an answer to the petition. Real parties in interest Overland Financial, MAPFS Corp., Michael MacKenzie and Heller Financial filed timely answers. The remaining real parties in interest did not respond to our order.

Page 1066

DISCUSSION

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,1 or to control an arbitrary or capricious exercise of discretion.2 A writ of mandamus will not issue, however, if petitioner has a plain, speedy and adequate remedy in the ordinary course of law.3 Further, mandamus is an extraordinary remedy, and it is within the discretion of this court to determine if a petition will be considered.4 We have previously noted that a petition for a writ of mandamus is the appropriate vehicle to seek disqualification of a judge.5

Nevada has two statutes governing disqualification of district court judges. NRS 1.230 lists substantive grounds for disqualification, and NRS 1.235 sets forth a procedure for disqualifying district court judges. Hendrix first argues that Judge Hardcastle lacked authority to consider the affidavit's timeliness. The real parties in interest assert that our case law interpreting SCR 48.1, governing peremptory challenges against judges, supports the district court's exercise of jurisdiction to consider the timeliness of an affidavit of bias and prejudice.

In Jacobson v. Manfredi,6 we approved a district judge's actions in evaluating the timeliness of an affidavit, although we did not explicitly address the judge's authority to do so.7 Similarly, we have expressly held that a district judge may consider the timeliness of a peremptory challenge under SCR 48.1.8 Accordingly, we conclude that Judge Hardcastle properly considered the timeliness issue.

Petitioners and the real parties in interest base their arguments concerning the timeliness of petitioners' affidavit on different parts of NRS 1.235. The statute provides, with emphasis added:

1. Any party to an action or proceeding pending in any court other than the Supreme Court, who seeks to disqualify a judge for actual or implied bias or prejudice must file an affidavit specifying the facts upon which the disqualification is sought. The affidavit of a party represented by an attorney must be accompanied by a certificate of the attorney of record that the affidavit is filed in good faith and not interposed for delay. Except as provided in subsections 2 and 3, the affidavit must be filed:

(a) Not less than 20 days before the date set for trial or hearing of the case; or

(b) Not less than 3 days before the date set for the hearing of any pretrial matter.

2. Except as otherwise provided in this subsection and subsection 3, if a case is not assigned to a judge before the time required under subsection 1 for filing the affidavit, the affidavit must be filed:

(a) Within 10 days after the party or his attorney is notified that the case has been assigned to a judge;

(b) Before the hearing of any pretrial matter; or

(c) Before the jury is empaneled, evidence taken or any ruling made in the trial or hearing, whichever occurs first. If the facts upon which disqualification of the judge is sought are not known to the party before he is notified of the assignment of the judge or before any pretrial hearing is held, the affidavit may be filed not later than the commencement of the trial or hearing of the case.

Hendrix argues that the emphasized language applies to his affidavit. Since his affidavit was based solely on the events that

Page 1067

occurred at the August 2 hearing in the Benoy case and was promptly filed the next day, Hendrix maintains that it was timely. The district court applied subsection 1 of the statute, which provides that an affidavit is untimely if the challenged judge has already ruled on disputed issues.

Hendrix's argument concerning the language in subsection 2 is flawed, because subsection 2 applies only when a judge is not assigned until after subsection 1's time for filing an affidavit has passed. Here, Judge Hardcastle was assigned to the case well within the time required by subsection 1, and so the exception in subsection 2 for newly discovered grounds does not apply. Consequently, Judge Hardcastle correctly concluded that the affidavit was untimely, as she had ruled on contested pretrial matters.9

Subsection 1 provides no remedy for situations such as this one, when grounds for disqualification are discovered only after the time periods in subsection 1 have passed. Here, Hendrix's affidavit was based solely on the events that occurred at the August 2 hearing, and the affidavit was promptly filed the next day. Clearly, then, the alleged...

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33 practice notes
  • Bruno v. Donat, Case No. 3:09-cv-00165-RCJ-VPC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • March 24, 2015
    ...pretrial matter. See Valladares v. District Court, 910 P.2d 256, 260 (Nev. 1996); see also Towbin Dodge, LLC v. Eight Judicial Dist. Ct., 112 P.3d 1063 (Nev. 2005). In response to the motion to disqualify, the state district court judge filed an affidavit attesting that he had no recollecti......
  • Ybarra v. State , No. 52167.
    • United States
    • Nevada Supreme Court of Nevada
    • March 3, 2011
    ...Berosini, Ltd., 111 Nev. 431, 435, 894 P.2d 337, 340 (1995), overruled on other grounds by Towbin Dodge, LLC v. Dist. Ct., 121 Nev. 251, 112 P.3d 1063 (2005). Two provisions are relevant here.1 First, NCJC Canon 2A provides that “[a] judge shall respect and comply with the law and shall act......
  • Canarelli v. Eighth Judicial Dist. Court of Nev., 82299
    • United States
    • Nevada Supreme Court of Nevada
    • March 24, 2022
    ...431, 437, 894 P.2d 337, 341 (1995), overruled on other grounds by Towbin Dodge, LLC v. Eighth Judicial Dist. Court, 121 Nev. 251, 260-61, 112 P.3d 1063, 1069-70 (2005). But determining the proper disqualification standard is a question of law that we review de novo. See Cannizzaro v. First ......
  • Bork v. Neven, Case No.: 2:16-cv-01235-APG-VCF
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • February 27, 2020
    ...Bork never moved to disqualify the district court judge, see Towbin Dodge, LLC v. Eighth Judicial Dist. Court, 121 Nev. 251, 260, 112 P.3d 1063, 1069 (2005) ("[I]f new grounds for a judge's disqualification are discovered after the time limits in NRS 1.235(1) have passed, then a party may f......
  • Request a trial to view additional results
33 cases
  • Bruno v. Donat, Case No. 3:09-cv-00165-RCJ-VPC
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • March 24, 2015
    ...pretrial matter. See Valladares v. District Court, 910 P.2d 256, 260 (Nev. 1996); see also Towbin Dodge, LLC v. Eight Judicial Dist. Ct., 112 P.3d 1063 (Nev. 2005). In response to the motion to disqualify, the state district court judge filed an affidavit attesting that he had no recollecti......
  • Ybarra v. State , No. 52167.
    • United States
    • Nevada Supreme Court of Nevada
    • March 3, 2011
    ...Berosini, Ltd., 111 Nev. 431, 435, 894 P.2d 337, 340 (1995), overruled on other grounds by Towbin Dodge, LLC v. Dist. Ct., 121 Nev. 251, 112 P.3d 1063 (2005). Two provisions are relevant here.1 First, NCJC Canon 2A provides that “[a] judge shall respect and comply with the law and shall act......
  • Canarelli v. Eighth Judicial Dist. Court of Nev., 82299
    • United States
    • Nevada Supreme Court of Nevada
    • March 24, 2022
    ...431, 437, 894 P.2d 337, 341 (1995), overruled on other grounds by Towbin Dodge, LLC v. Eighth Judicial Dist. Court, 121 Nev. 251, 260-61, 112 P.3d 1063, 1069-70 (2005). But determining the proper disqualification standard is a question of law that we review de novo. See Cannizzaro v. First ......
  • Bork v. Neven, Case No.: 2:16-cv-01235-APG-VCF
    • United States
    • United States District Courts. 9th Circuit. United States District Courts. 9th Circuit. District of Nevada
    • February 27, 2020
    ...Bork never moved to disqualify the district court judge, see Towbin Dodge, LLC v. Eighth Judicial Dist. Court, 121 Nev. 251, 260, 112 P.3d 1063, 1069 (2005) ("[I]f new grounds for a judge's disqualification are discovered after the time limits in NRS 1.235(1) have passed, then a party ......
  • Request a trial to view additional results

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