Gonor v. Dale
Gonor v. Dale
Opinion of the Court
*724In this appeal, we address whether the deceased party's actual date of death, or the suggestion of death filed on the record, triggers the 90-day time limitation prescribed in NRCP 25(a)(1) under which a motion to substitute the proper party in place of the deceased party must be filed in order to preclude dismissal. We hold that the latter triggers the 90-day limitation period. In this case, the plaintiff's attorney in the underlying proceeding filed two motions seeking to substitute for the deceased plaintiff after the defendant filed the suggestion of death on the record. Although both motions were filed within the 90-day period, the motions failed to identify the proper party for substitution under NRS 41.100. Accordingly, we affirm the district court's order dismissing the underlying complaint.
FACTS AND PROCEDURAL HISTORY
Irwin Gonor initiated the underlying intentional interference of contractual relations action against respondents Richard J. Dale; Kelly Mayer; Rick's Restorations, Inc.; Kiki T's LLC; Making History LLC; and Bookin' It LLC. During the pendency of the suit, Gonor passed away on June 2, 2016. Shortly after Gonor's death, Gonor's attorney
On October 26, 2016, respondents filed a suggestion of death with the district court and served it on Gonor's attorney. On November 19, 2016, Gonor's attorney filed a motion to amend the complaint, which sought to designate Hoffner as plaintiff on the basis that she was Gonor's sole heir, or in the alternative, to allow an additional 120 days under NRCP 6(b) to open the estate of Irwin Gonor. Respondents filed an opposition and a countermotion to dismiss the case as untimely pursuant to NRCP 25(a)(1), and for failure to identify the proper party for substitution under NRS 41.100. After a hearing, the district court denied the motion to amend and granted respondents' motion to dismiss, finding that Gonor's attorney had not filed a motion to substitute within 90 days of Gonor's actual date of death.
On January 24, 2017, Gonor's attorney filed a second motion to amend the complaint, requesting to substitute appellant, the estate of Irvin Gonor, as plaintiff. On February 27, 2017, the probate court appointed appellant Robert Womble as special administrator for Gonor's estate. At a hearing held on March 28, 2017, the district court noted that it considered the second motion to amend to be a motion for reconsideration. The district court denied the second motion to amend and dismissed the case with prejudice. This appeal followed.
DISCUSSION
Standard of review
This appeal requires statutory interpretation of NRCP 25 and NRS 41.100, which are questions of law that we review de novo. See J.D. Constr., Inc. v. IBEX Int'l Grp., LLC ,
*725Zohar v. Zbiegien ,
The suggestion of death filed on the record by service triggers the 90-day time period under NRCP 25
Appellants contend that the district court erred in concluding that Gonor's date of death triggered the 90-day period; rather, the 90-day period was not triggered until the suggestion of death was filed on the record. We agree.
Pursuant to NRCP 25(a)(1),
[i]f a party dies and the claim is not thereby extinguished, the court may order substitution of the proper parties. The motion for substitution may be made by any party or by the successors or representatives of the deceased party and, together with the notice of hearing, shall be served on the parties as provided in Rule 5 and upon persons not parties in the manner provided in Rule 4 for the service of a summons. Unless the motion for substitution is made not later than 90 days after the death is suggested upon the record by service of a statement of the fact of the death as provided herein for the service of the motion , the action shall be dismissed as to the deceased party.
(Emphasis added.) A plain reading of NRCP 25(a)(1) mandates that the suggestion of death be filed on the record in order to trigger the 90-day period. Moseley v. Eighth Judicial Dist. Court ,
In addition, a plain reading of NRCP 25(a)(1) requires that the suggestion of death also be served on parties and/or nonparties before the 90-day period is triggered. In regards to nonparties, this court has already clarified that there is a difference between situations where a suggestion of death emanating from the deceased party fails to identify a successor or personal representative as opposed to situations where a plaintiff dies and the defendant files the suggestion of death. Moseley ,
NRCP 25(a)(1) is nearly identical to its federal counterpart, FRCP 25(a)(1), and federal courts have plainly interpreted the rule in a similar fashion. See, e.g., Barlow v. Ground,
Here, the 90-day time period commenced once the defendants filed the suggestion of death upon the record and served it on Gonor's attorney on October 26, 2016. Gonor's attorney then filed two motions to amend-the first on November 19, 2016, and the second on January 24, 2017-both of which sought to substitute a plaintiff for the deceased Gonor. While Gonor's attorney filed the motions before the expiration of the 90-day limitation, the issue remains as to whether the motions to amend sought to substitute the proper party under NRS 41.000.
A survival action may be maintained by or against the decedent's executor or special administrator under NRS 41.100
Appellants contend that the motions to amend identified the proper party under NRS 41.100. Conversely, respondents argue that the motions to amend failed to indicate the proper party under NRS 41.100. We concur with respondents.
*726NRCP 25(a)(1) provides, "the court may order substitution of the proper parties." Pursuant to NRS 41.100(1), a survival action can be maintained by or against the decedent's executor or special administrator. See also Jones v. Las Vegas Metro. Police Dep't ,
In this case, the motions to amend failed to identify the proper party. Gonor died intestate, thus the proper party would be a special administrator appointed by the court. The first motion sought to substitute Gonor's sole heir, his mother, as a plaintiff, and also admitted that a special administrator had not yet been appointed. The second motion sought to substitute the estate of Irvin Gonor. Problematically, an estate is not a proper party; rather, the administrator of the estate must be named in the complaint. See Jones ,
CONCLUSION
In sum, the district court improperly held that the motions to amend were untimely based on Gonor's actual date of death. Nonetheless, the district court's dismissal was proper because appellants failed to timely move to substitute the proper party. Thus, we affirm the district court's holding as it reached the right result, albeit for the wrong reason. Saavedra-Sandoval v. Wal-Mart Stores, Inc. ,
We concur:
Cherry, J.
Gibbons, J.
Pickering, J.
Hardesty, J.
Parraguirre, J.
Stiglich, J.
"Goner's attorney" is used here to identify the attorney who had been retained by Gonor to defend the underlying action.
The 90-day period to file a motion to substitute a proper party under NRCP 25 may be extended under NRCP 6(b)(2) if excusable neglect is shown. Moseley ,
Reference
- Full Case Name
- Irwin GONOR, Deceased the Estate of Irwin Gonor and Robert Womble, Special Administrator v. Richard J. DALE Kelly Mayer Rick's Restorations, Inc. Kiki T's LLC Making History LLC and Bookin' It LLC
- Cited By
- 6 cases
- Status
- Published