134 Nev., Advance Opinion 101
IN THE SUPREME COURT OF THE STATE OF NEVADA
IRWIN GONOR, DECEASED; THE No. 72949
ESTATE OF IRWIN GONOR; AND
ROBERT WOMBLE, SPECIAL
ADMINISTRATOR,
Appellants,
vs.
RICHARD J. DALE; KELLY MAYER;
RICK'S RESTORATIONS, INC.; KIM
T'S LLC; MAKING HISTORY LLC; AND
BOOKIN' IT LLC,
Respondents.
Appeal from a district court order dismissing a tort action.
Eighth Judicial District Court, Clark County; William D. Kephart, Judge.
Affirmed.
Ryan Alexander, Chtd., and Ryan E. Alexander, Las Vegas,
for Appellants.
Morris Sullivan & Lemkul, LLP, and Christopher A. Turtzo, Las Vegas,
for Respondents.
BEFORE THE COURT EN BANC.
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OPINION
By the Court, DOUGLAS, C.J.:
In 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 plaintiffs 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' engaged in
settlement negotiations with respondents, at the direction of Gonor's
mother and sole heir, Shirley Hoffner. The parties reached an agreement,
and respondents forwarded a proposed settlement agreement to Gonor's
attorney, which was returned to respondents with Hoffner's signature.
1 "Gonor's attorney" is used here to identify the attorney who had been
retained by Gonor to defend the underlying action.
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Respondents first learned of Gonor's passing after questioning Hoffner's
signature on the agreement.
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? Grp., LLC, 126 Nev. 366, 375,
240 P.3d 1033, 1039
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(2010). This court has repeatedly stated that we will not look beyond a
rule's plain language when it is clear on its face. Zohar v. Zbiegien, 130
Nev. 733, 737,
334 P.3d 402, 405 (2014).
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),
NI' 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 actionS 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, 124 Nev. 654, 659,
188 P.3d
1136, 1140 (2008) ("[G]enerally, once a suggestion of death has been filed in
the district court, a motion for substitution must be made within 90 days of
the date the death was suggested on the record.").
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
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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, 124 Nev. at 660-61,
188 P.3d at 1141. In the latter situation, we stated that "a suggestion of a
plaintiffs death filed by a defendant is generally sufficient to trigger the 90-
day limitation period within which. . . the deceased party's successor or
personal representative are required to move for substitution." Id. at 657,
188 P.3d at 1139. The rationale behind this is that "requiring a defendant
to speculatively identify a successor or personal representative for a
deceased plaintiff incorrectly shifts the burden of locating a successor or
personal representative to the defending party." Id. at 661,
188 P.3d at
1141.
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, 39 F.3d 231, 233 (9th. Cir.
1994). Upon a party's death, FRCP 25(a)(1) also provides that "the motion
for substitution is made not later than 90 days after the death is suggested
upon the record. . . , [otherwise] the action shall be dismissed as to the
deceased party." The Barlow court recognized that "fallthough Rule
25(a)(1) could be clearer," the 90-day period is triggered by two affirmative
actions: (1) "a party must formally suggest the death of the party upon the
record," and (2) "the suggesting party must serve other parties and
nonparty successors or representatives of the deceased with a suggestion of
death." 39 F.3d at 233.
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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.
NRCP 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, 873 F.3d 1123, 1128 (9th
Cir. 2017) (providing that "Nevada authorizes survival actions by the
executor or administrator of the decedent's estate" (internal quotation
marks and citation omitted)); Morrison v. Quest Diagnostics Inc., 139 F.
Supp. 3d 1182, 1185-86 (D. Nev. 2015) (noting the same). An "executor" is
defined as "a person nominated in a will and appointed by the court to
execute the provisions of the will and administer the estate of the decedent."
NRS 132.130. An "administrator" is defined as "a person not designated in
a will who is appointed by the court to administer an estate." NRS 132.040.
Thus, the proper party who may take the place of the deceased party within
the meaning of NRCP 25(a)(1) includes either an individual named in the
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will of the deceased party and appointed by the court to administer the
estate or an individual appointed by the court to do the same.
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, 873 F.3d at 1128. And, it was not until after the 90-
day period expired that a special administrator was appointed for Gonor's
estate. 2 Accordingly, appellants did not timely seek to substitute the proper
party under NRS 41.100(1).
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.
2The 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, 124 Nev. at 665,
188 P.3d at 1144. Because appellants
neglected to address this argument on appeal, we need not consider this
issue. See Edwards u. Emperor's Garden Rest., 122 Nev. 317, 330 n.38,
130
P.3d 1280, 1288 n.38 (2006) (this court need not consider claims that are
not cogently argued or supported by relevant authority). In addition,
appellants raised, but failed to cogently argue, that a motion to substitute
the proper party should relate back to the date of the original complaint
pursuant to NRCP 15(c).
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Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 599,
245 P.3d
1198, 1202 (2010).
C JObLI
/QA , C.J.
Douglas
We concur:
J.
J.
Gibbons
4\61.4
( J.
Pickering
J.
Hardesty
Parraguirre
_A lfrjht--L.C.
Stiglich
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