Walker v. Second Judicial Dist. Court of Nev.

• Citation: 476 P.3d 1194
• Decision Date: 10 December 2020
• Docket Number: No. 80358,80358
• Parties: John S. WALKER ; and Ralph Ortega, Petitioners, v. The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF WASHOE; and the Honorable Barry L. Breslow, District Judge, Respondents, and Sheila Michaels ; and Katheryn Fritter, Real Parties in Interest.
• Court: Supreme Court of Nevada

476 P.3d 1194

John S. WALKER ; and Ralph Ortega, Petitioners,

v.The SECOND JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF WASHOE; and the Honorable Barry L. Breslow, District Judge, Respondents,andSheila Michaels ; and Katheryn Fritter, Real Parties in Interest.

No. 80358

Supreme Court of Nevada.

FILED DECEMBER 10, 2020

William R. Kendall, Reno, for Petitioners.

Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno; Law Office of S. Denise McCurry and Adam P. McMillen, Reno, for Real Parties in Interest.

BEFORE PICKERING, C.J., HARDESTY and STIGLICH, JJ.

OPINION

By the Court, PICKERING, C.J.:

"Extraordinary relief should be extraordinary": real parties in interest, Sheila Michaels and Katheryn Fritter, state the principle aptly. And while the facts of the dual arbitrations underlying this petition are unfortunate, there is nothing in the resulting interlocutory district court decision challenged here which clears that "extraordinary" bar. To the contrary, the petition raises a factual question limited to the practice of one particular attorney of the insurer for both Michaels and Fritter, which will be appealable by the petitioners, John S. Walker and Ralph Ortega, at the conclusion of their respective matters. Accordingly, we deny the instant petition.

I.

Two personal injury disputes join cause in the petition we reject here. One of those underlying matters stems from injuries Walker sustained when Michaels made a right-hand turn in her vehicle and collided with Walker while he rode his bike in the bike lane. The other entirely separate matter centers on the extent of Ortega's damages after Fritter rear-ended his vehicle at an intersection. Both accidents allegedly resulted in injuries, and so Walker sued Michaels, and Ortega sued Fritter. The cases both proceeded to this state's mandatory court-annexed arbitration program. And pursuant to the Nevada Arbitration Rules (NAR), Michaels and Fritter each served offers of judgment in their individual cases, which Walker and Ortega, respectively, rejected. Ultimately, the arbitrators in both Walker's and Ortega's cases found in their favor, awarding damages that substantially exceeded the amount that Michaels and Fritter had each previously offered.

Because Farmers Insurance insured both Michaels and Fritter, the same attorney, Adam McMillen, separately represented the interests of both defendants. Following the arbitrators’ respective decisions, and in light of the hefty differences between the offers of judgment and ultimate awards, McMillen sought trials de novo in both cases. Relying on statistical information purporting to demonstrate the undue frequency of McMillen's requests for trials de novo as a general practice, Walker and Ortega alleged that McMillen had arbitrated in bad faith by using the requests to obstruct and delay. Accordingly, under the representation of the same attorney, Walker and Ortega filed nearly identical motions to strike McMillen's requests for trials de novo in their cases, based on NAR 22 (stating that "the failure of a party or an attorney to either prosecute or defend a case in good faith during the arbitration proceedings shall constitute a waiver of the right to a trial de novo").

The district court consolidated the separate motions to strike and held an evidentiary hearing on the question of McMillen's motivations and the applicability of NAR 22. Ultimately, the court found that the statistical evidence Walker and Ortega had presented was not sufficient to establish that McMillen had arbitrated in bad faith, rejecting their motions to strike. Walker and Ortega subsequently filed this petition, demanding that we reverse the district court's finding and compel it to strike McMillen's requests for trial de novo in each of their cases.

II.

Article 6, Section 4 of the Nevada Constitution grants this court authority "to issue writs of mandamus, certiorari, prohibition, quo warranto and habeas corpus and also all writs necessary or proper to the complete exercise of [its] jurisdiction." The traditional writ of mandamus is a remedy distinguishable from all others listed therein, to the extent "it recognizes legal duty, and compels its performance where there is either no remedy at law or no adequate remedy." Thomas Carl Spelling, A Treatise on Injunctions and Other Extraordinary Remedies 1173 (2d ed. 1901). And while our original jurisdiction to issue this unique remedy resounds in our constitutional powers, the Legislature has also provided guidance for its appropriate administration. See NRS 34.160 (stating that the writ of mandamus may issue "to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station; or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled and from which the party is unlawfully precluded by such inferior tribunal"). This language is consistent with well-established common law rules governing traditional mandamus jurisdiction, and we therefore "presume that ... in prescribing mandamus as a statutory remedy, [the Legislature] had in view the nature and extent of the remedy, as known at the common law." Spelling, supra , at 1170.

Accordingly, under our constitutional authority, as directed and refined by statute and its corresponding common law,

[t]he chief requisites of a petition to warrant the issuance of a [traditional] writ of mandamus are: (1) The petitioner must show a legal right to have the act done which is sought by the writ; (2) it must appear that the act which is to be enforced by the mandate is that which it is the plain legal duty of the respondent to perform, without discretion on his part either to do or refuse; (3) that the writ will be availing as a remedy, and that the petitioner has no other plain, speedy, and adequate remedy.

Id. at 1173; see NRS 34.160 ; Segovia v. Eighth Judicial Dist. Court , 133 Nev. 910, 911-12, 407 P.3d 783, 785 (2017) (holding that a writ of mandamus is available "to compel the performance of an act which the law requires as a duty resulting from an office"). Particularly where, as here, this court is asked to direct its traditional powers of mandamus at a lower court or judicial officer, there is significant overlap between the first and second requirements. That is, the question of whether a petitioner has a legal right to any particular action by the lower court turns, in part, on whether the action at issue is one typically entrusted to that court's discretion, and whether that court has exercised its discretion appropriately. See Martinez Guzman v. Second Judicial Dist. Court , 136 Nev. 103, 106-07, 460 P.3d 443, 446 (2020) ; see also Spelling, supra , at 1230 (noting that "[i]n order to entitle a party to mandamus to compel action by the judge of an inferior court ... it is incumbent upon him to show that it is clearly the duty of such judge to do the act sought to be coerced").

Where a district court is entrusted with discretion on an issue, the petitioner's burden to demonstrate a clear legal right to a particular course of action by that court is substantial; we can issue traditional mandamus only where the lower court has manifestly abused that discretion or acted arbitrarily or capriciously. See Martinez Guzman, 136 Nev. at 105, 460 P.3d at 446 (quoting Redeker v. Eighth Judicial Dist. Court, 122 Nev. 164, 167, 127 P.3d 520, 522 (2006) ). That is, traditional mandamus relief does not lie where a discretionary lower court decision "result[s] from a mere error in judgment"; instead, mandamus is available only where "the law is overridden or misapplied, or when the judgment exercised is manifestly unreasonable or the result of partiality, prejudice, bias or ill will." State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 932, 267 P.3d 777, 780 (2011) (quoting Blair v. Zoning Hearing Bd. of Twp. of Pike, 676 A.2d 760, 761 (Pa. Commw. Ct. 1996) ); see also Segovia, 133 Nev. at 912, 407 P.3d at 785 (holding that a writ of mandamus is available "to control a manifest abuse or an arbitrary or capricious exercise of discretion"). Were we to issue traditional mandamus to "correct" any and every lower court decision, we would substitute our judgment for the district court's, subverting its "right to decide according to its own view of the facts and law of a case which is still pending before it" and ignoring that there would almost always be "an adequate remedy for any wrongs which may be done or errors which may be committed, by appeal or writ of error." Spelling, supra, at 1202.

This leads to the third, related requirement for traditional mandamus relief—namely, the absence of any alternative legal remedy. See Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 224, 88 P.3d 840, 841 (2004). Because mandamus is an extraordinary remedy, this court does not typically employ it where ordinary means, already afforded by law, permit the correction of alleged errors. See Rawson v. Ninth Judicial Dist. Court , 133 Nev. 309, 316, 396 P.3d 842, 847 (2017). And by limiting our interference with ordinary district court decisions, we thereby circumvent the "inconvenience and confusion which would result from allowing litigants to resort to the appellate courts for correction of errors in advance of opportunity on the part of the lower court to correct its errors before final judgment and upon motion for new trial." Spelling, supra, at 1203. Moreover, to the extent that appellate relief is available at the conclusion of a matter, it would typically be preferable to an extraordinary writ proceeding because we can issue a decision after "review[ing] the entire record in the regular way, when [we] can enjoy the advantage of having the whole case before us." Id. at 1203-04. In light of these considerations, "[t]his court has previously pointed out, on several occasions, that the right to appeal is generally an adequate legal remedy that...