Lead Opinion
By the Court,
For the first time, we consider NRS 11.340, a statute enacted by the Legislature in 19 ll
BACKGROUND AND PROCEDURAL HISTORY
In 2001, respondent Howard Bloom filed a petition in the district court seeking the appointment of special administrators for the estate of Rose Miller. The petition was subsequently opposed by two of Miller’s nieces, appellants Marilyn Berkson and Gertrude Malacky, on the grounds of undue influence and a lack of testamentary capacity. Bloom also filed a separate petition for the appointment of a trustee regarding the Rose Miller Living Trust, which was also opposed by appellants on the same grounds. Berk-son and Malacky subsequently filed a civil complaint in district court against respondent Barbara LePome. These three actions were ultimately consolidated by the district court, which later dismissed Berkson and Malacky’s civil complaint, concluding that the causes of action raised were either not recognized in Nevada or were duplicative of the claims raised in the estate and trust actions. In 2004, the district court dismissed the lack-of-testamentary-capacity claims pending in the estate and trust actions and concluded that the sole issue remaining for trial was the undue influence issue. At the trial, the jury found in favor of Berkson and Malacky, but this court reversed that judgment on appeal, in a July 12, 2006, unpublished order, concluding that the jury’s verdict was not supported by substantial evidence.
Thereafter, in November 2006, Berkson and Malacky filed a new complaint in district court asserting claims for undue influence, breach of contract, fraud, elder abuse and neglect, intentional misstatement of facts, negligence, conspiracy and per se violation of Nevada law, and misconduct. Their complaint also sought attorney fees and costs. This complaint continued the litigation against Barbara LePome and Bloom and added respondents Robert LePome, John Gorman, and Richard Donaldson as additional defendants. Respondents moved the district court to dismiss
DISCUSSION
We begin our discussion of the issues presented in this appeal by addressing Berkson and Malacky’s challenge to the district court’s application of the doctrines of claim and issuе preclusion to their complaint. After concluding that the district court properly dismissed the underlying complaint on this basis, we then turn to Berkson and Malacky’s appellate arguments related to the post-judgment award of attorney fees and costs to respondents, which, for the reasons set forth below, we conclude must be reversed.
Dismissal of Berkson and Malacky’s complaint
On appeal, Berkson and Malacky argue that the district court erred in dismissing their complaint because NRS 11.340 clearly and unambiguously granted them the right to file a new complaint after this court reversed the jury verdict in their favor. NRS 11.340 provides that
[i]f an action shall be commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on appeal, the plaintiff, or if the plaintiff dies and the cause of action survives, the plaintiff’s heirs or representatives, may commence a new action within 1 year after the reversal.
According to Berkson and Malacky, because NRS 11.340 authorizes the filing of a new complaint after the reversal on appeal of a judgment in their favor, that statute necessarily precludes the application of claim and issue preclusion to their new complaint, and thus, the district court’s dismissal of their complaint on such grounds was improper. This court has not previously addressed
Words in a statute will be given their plain meaning unless such an approach would violate the spirit of the act. V & S Railway v. White Pine County,
As Berkson and Malacky correctly point out, the plain language of NRS 11.340 explicitly authorized their filing of a new action after this court reversed the judgment in their favor on appeal. And if NRS 11.340 is to have any real effect, it necessarily follows that the doctrines of claim and issue preclusion could not be applied to bar a new action filed based on that statute. Claim and issue preclusion essentially bar recovery on or prevent relitigation of previously resolved issues. See Five Star Capital Corp. v. Ruby,
This conclusion does not end our analysis, however. In responding to Berkson and Malacky’s appellate contentions, respondents argue that NRS 11.340 violates the separation of powers doctrine and should be struck down as unconstitutional. Specifically,
NRS 11.340 violates separation of powers
Separation of powers
The separation of powers doctrine is the most important foundation for preserving and protecting liberty by preventing the accumulation of power in any one branch of government. Secretary of State v. Nevada State Legislature,
[t]he powers of the Government of the State of Nevada shall be divided into three separate departments, — the Legislative, — the Executive and the Judicial; and no persons charged with the exercise of powers properly belonging to one of these departments shall exercise any functions, appertaining to either of the others, except in the cases expressly directеd or permitted in this constitution.
The Constitution further embodies this concept of limited government by specifically delineating the powers granted to the three distinct and coequal branches of government, as set forth in Article 4 (legislative), Article 5 (executive), and Article 6 (judicial). Commission on Ethics v. Hardy,
We have.been especially prudent to keep the powers of the judiciary separate from those of either the legislative or the executive branches. See, e.g., Galloway v. Truesdell,
Here, the conflict is between an act of the Legislature — NRS 11.340 — and the inherent ability of the judiciary to manage litigation and finally resolve cases. Regarding such discord between the legislative and judicial branches of governmеnt, it is well settled that the judiciary retains the authority to “ ‘hear and determine justiciable controversies’ ” as a coequal power to the Legislature’s broad authority to enact, amend, and repeal legislation. Halverson,
In keeping with this theory, “ ‘[t]he judiciary ... has the inherent power to govern its own procedures.’’’ State v. Dist. Ct. [Marshall],
Claim and issue preclusion
This court’s use of the concepts of claim and issue preclusion is well established. See Whitman Mining Co. v. Baker,
The important public policy behind the application of preclusion principles further supports our conclusion that a statute, such as
We therefore hold that NRS 11.340 unconstitutionally interferes with the judiciary’s authority to manage the litigation process and this court’s ability to provide finality through the resolution of a matter on appeal. Consequently, we strike NRS 11.340 as unconstitutional on separation of powers grounds.
Because we strike the statute, Berkson and Malacky’s refiled complaint is subject to preclusion principles. Berkson and Malacky, however, have provided no analysis or discussion in their briefs to explain how their claims would survive the application of preclusion principles with regard to any of the respondents, including those named as defendants for the first time below. It is well established that this court need not consider issues not supported by cogent argument and citation to relevant authority. See
Although concurring in the result, our dissenting colleague would leave NRS 11.340 at peace by offering an alternative interpretation to the statute that renders it only applying to circumstances in which a plaintiff’s case has been reversed on appeal, unlike the situation here, on “technical” grounds. We disagree that such an approach should guide our analysis.
First, the interpretation of NRS 11.340 advocated by the dissent violates the plain reading of that statute by reading in language that is not there and fundamentally altering the text when neither appellants nor respondents ever argue that NRS 11.340 is ambiguous. Second, our esteemed colleague effectively argues for the approach taken by California courts that read the “on the merits” element into that state’s version of NRS 11.340, section 355 of the California Code of Civil Procedure, even though, at the time of these California decisions, section 355 contained no such language. See, e.g., Bollinger v. National Fire Ins. Co. of Hartford, Conn.,
[i]f an action is commenced within the time limited therefor, and a judgment therein is reversed on appeal, without awarding a new trial, or the action is terminated in any other manner than by a voluntary discontinuance, a dismissal of the complaint for neglect to prosecute the action, or a final judgment upon the merits; the plaintiff, or, if he dies, and the cause of action survives, his representative, may commence a new action for the same cause, after the expiration of the time so limited, and within one year after such a reversal or termination.
Finally, while the California Legislature has subsequently amended the section 355 language to adopt the “on the merits” element historically read in by the California courts, see 1992 Cal. Stat. 887; see also Cal. Civ. Proc. Code § 355 (West 2006) (noting that the amended section 355 provides “[i]f an аction is commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on appeal other than on the merits, a new action may be commenced within one year after the reversal”), our Legislature has, to date, not similarly adopted this amendment. We should not supply judicial meaning to a statute that is plain and unambiguous. Rather, this court should leave this decision to the Legislature if it wants to extend statute-of-limitations periods for judgments that have been reversed on appeal for “technical” reasons. Further, if this court were instead to proceed to recognize the “on the merits” element discussed in the dissent, we, and not the Legislature, would also hereafter be called
Accordingly, for the above listed reasons, we are not persuaded by the dissent’s suggestion that NRS 11.340 should be saved through interpretation rather than struck down on separation of powers grounds.
Attorney fees and costs award
Finally, Berkson and Malacky challenge the district court’s post-judgment order awarding attorney fees and costs to respondents as a sanction, arguing, among other things, that NRS 11.340 clearly authorized the filing of their dismissed complaint and that it therefore cannot be considered frivolous. Respondents, however, argue that the lawsuit was frivolous and that the district court did not abuse its discretion in awarding sanctions.
This court reviews a district court’s award of attorney fees and-costs, as a sаnction, for an abuse of discretion. See Nevada Power v. Fluor Illinois,
Notes
This statute was initially enacted as section 38 of the Civil Practice Act of 1911. Section 38’s annotation notes that the provision was drawn from California’s Code of Civil Procedure, section 355. Language virtually identical to section 38, however, dates back to Nevada’s territorial laws. See 1861 Laws of the Territory of Nevada, ch. 12, § 25; see also 1 Nev. Compiled Laws § 1040 (1873). The question of whether section 38 of the Civil Practice Act of 1911 was intended to draw from the California code or preexisting Nevada authority does not affect our analysis of NRS 11.340.
As our resolution of Berkson and Malacky’s NRS 11.340 arguments on separation-of-powers and claim- and issue-preclusion grounds controls the disposition of this appeal, we need not address the lengthy discussion in the parties’ briefing regarding Berkson and Malacky’s standing to bring their claims.
It also appears that this court has not ever addressed any prior versions of the NRS 11.340 statutory language.
We note that in Plaut v. Spendthrift Farm, Inc.,
Generally, claim preclusion does not apply when the parties are not the same. See Five Star Capital,
Additionally, having reviewed Berkson and Malacky’s remaining appellate arguments, we conclude that they lack merit.
We deny respondents’ request for attorney fees and costs on appeal.
Concurrence Opinion
concurring in part and dissenting in part:
I would uphold the district court’s dismissal of Berkson’s and Malacky’s second suit based on claim preclusion and leave NRS 11.340 in peace. Though it does not save Berkson and Malacky, NRS 11.340 had useful service left as a statute-of-limitations “savings” or tolling provision and does not deserve to be invalidated on separation of powers grounds. Ironically, the separation of powers offense is ours, in judicially repealing a 150-year-old statute that conventional rules of statutory construction say should survive judicial review.
This is the third time these parties have come before this court. Nobody (except maybe Berkson and Malacky) seriously contends that the first appeal did not produce a final, conclusive judgment in favor of LePome and against Berkson and Malacky. This court so held in the parties’ second appeal, In re Estate of Miller,
2. NRS 11.340
Where we part company is on NRS 11.340. The majority accepts Berkson’s and Malacky’s literal, plain meaning interpretation that NRS 11.340 means to wipe the litigation slate clean, that is: It gives the party who loses on appeal an absolute one-year right to a do-over in a second suit — even though the appeals court just rejected his or her claims as meritless. I do not see that NRS 11.340 has such subversive designs on the conclusiveness of final appellate judgments. In my view, all NRS 11.340 does is grant a one-year extension of an otherwise-expired statute of limitations when a case that was tried to successful judgment is reversed on appeal. If, as here, the appellate reversal finally concludes the case so that claim or issue preclusion applies, those doctrines will defeat the second suit on the same or related claims, wholly apart from any statute-of-limitations defense. But what about an appellate reversal that does not reach the merits and reverses for reasons that make remand back to the same trial court for disposition on the merits improper — for example, a suit tried to judgment in federal' court that is reversed on appeal for want of federal subject
Text, context, and history support the more limited and constitutionally benign reading I offer. NRS 11.340 dates back to 1861, when Nevada, then a territory, convened the First Regular Session of its Legislative Assembly. Using language left virtually untouched to this day, the provision became law on November 21, 1861, enacted as section 25 of Chapter XII, “An Act defining the Time of Commencing Civil Actions,” of Nevada’s first civil practice act. 1861 Laws of the Territory of Nevada, ch. 12, § 25, at 30.
Nevada was not alone in making a prior-proceedings savings provision part of its statute-of-limitations scheme. California had an identical tolling statute, 3 Codes of California § 355 (Bender-Moss Company 1909), enacted March 11, 1872, reprinted in Bollinger v. National Fire Ins. Co. of Hаrtford, Conn.,
“whatever verbal differences exist, the purpose and scope of [savings statutes like NRS 11.340] are identical in substance with [their] prototype, the English act of 1623. . . . The statute is designed to insure to the diligent suitor the right to a hearing in court till he reaches a judgment on the merits. Its broad and liberal purpose is not to be frittered away by any narrow construction. The important consideration is that, by invoking judicial aid, a litigant gives timely notice to his adversary of a present purpose to maintain his rights before the courts.”
Bollinger,
If NRS 11.340 has the “plain meaning” the majority discerns, it is surprising that over the past 400 years, no other court has read its jurisdiction’s cognate statute this way. The few courts to have considered Berkson’s and Malacky’s “plain meaning” reading have rejected it. Thus, in City of Orlando v. Murphy,
3. Separation of powers/constitutional conflict
The majority rejects a Murphy-based reading of NRS 11.340 as adding words the statute doesn’t contain, in violation of the ‘ ‘plain meaning” rule. (Plain meaning may be in the eyes of the beholder — the majority’s reading applies NRS 11.340 to claim and issue preclusion when all the statute addresses are limitations periods.) Regardless, the “plain meaning” rule does not justify reading a statute in a way that leads to an absurd result, State v. Friend,
In Waite, the court confronted a statute that, read literally, could have run afoul of the Nevada Constitution’s separation of powers clause. The court declined to read the statute aggressively. “In the light of our cоnstitutional division of the powers of government, it is our view that such an invasion of the sphere of the judicial department could not have been contemplated by the legislature.” Id. at 233,
At most, NRS 11.340 can be read two ways. Its ambiguity lies in its unqualified use of the word “reversal.” A reversal can amount to a final judgment on the merits, as with the parties’ first appeal here; it can involve a reversal and remand for a new trial before the same trial court for remediable error; or a reversal can lead to dismissal on grounds unrelated to the merits, such as improper venue, lack of subject matter jurisdiction, or other defect. Because NRS 11.340 does not differentiate among possible reversáis does not mean that it strips final appellate judgments of their claim- and issue-preclusive effect. Another, equally plausible reading is that NRS 11.340 only applies to statutes-of-limitation defenses raised in cases involving reversals for reasons courts recognize as grounds for avoiding claim and issue preclusion in a later-filed, second suit. This leaves the claim and issue preclusion issue where the majority’s separation of powers analysis says it should remain: With the courts.
This case does not test NRS 11.340’s outer limits, as occurred in Bollinger. It can and should be disposed of based on Berkson and Malacky having sustained a judgment on the merits against them that they now cannot avoid. But I note that because a statute is old does not justify its judicial repeal. See 2 Sutherland Statutory Construction, supra, § 34:5, at 35-36 (7th ed. 2009) (the separation of powers doctrine places “[t]he responsibility to clear dead wood out of the statute books . . . with legislatures, even though legislative bodies are almost exclusively preoccupied with passing new laws”).
Despite what to us moderns is its confusing brevity, I submit that NRS 11.340 still has a legitimate purpose, in varied, perhaps
The example in the text is based on Liberace v. Conway,
The scant changes between NRS 11.340’s original and current form are shown by strike-outs (to show deletions) and bracketed italics (to show additions): “If an action shall be commenced within the time prescribed therefor, and a judgment therein for the plaintiff be reversed on appeal, the plaintiff, or if fee [the plaintiff] diefs] and the cause of action survive^, the plaintiff’s] feie heirs or representatives, may commence a new action within me [1] year after the reversal.”
Some states have statutes that, either originally or by amendment, specify that the reversal must be other than on the merits for tolling to occur. See Hull v. Central Pathol. Serv. Med. Clin.,
Supporting this reading of NRS 11.340 is its companion statute, NRS 11.500, which the Legislature enacted in 2003 to provide for an additional 90 days to refile a suit dismissed for want of subject matter jurisdiction, even at the district court level. 2003 Nev. Stat., ch. 376, § 1, at 2134-35. NRS 11.500 and NRS 11.340 overlap, with the latter only applying to appeals but providing a longer grace period of one year as opposed to 90 days. Thus, NRS 11.500 does not appear to have repealed NRS 11.340 by implication. See also State v. Thompson,