IN THE SUPREME COURT OF THE STATE OF NEVADA
DAWN D. POSTEL, No. 81658
Appellant,
vs.
THE STATE OF NEVADA,
FILED
Respondent.
MAY 2 7 2021
ELIZABETH A. BROWN
ORDER OF AFFIRMANCE CLERK OF SUPREME COURT
C.V
BY .
DEPUTY
'r <
This is an appeal from a district court order granting a motion
to dismiss in an escheat proceeding. First Judicial District Court, Carson
City; James Todd Russell, Judge.
Dawn Postel, a second cousin thrice-removed of William
Melton, seeks a share of Melton's substantial escheated estate. On motion
under NRCP 12(b)(5), the district court dismissed Postel's NRS 154.120(1)
petition/claim, deeming it precluded by this court's decision in the probate
matter of the same estate. In re Estate of Melton, 128 Nev. 34, 40, 55,
272
P.3d 668, 671-72, 681 (2012) (holding that Melton validly disinherited all
his relatives by stating in his will that, "I do not want my brother[, my
daughter] or any of my other relatives to have one penny of my estate," and
that his estate therefore escheated to the State). Our review is de novo,
Aicantara v. Wal-Mart Stores, Inc., 130 Nev. 252, 256,
321 P.3d 912, 914
(2014) (reviewing application of claim and issue preclusion de novo); Buzz
Stew, LLC v. City of North Las Vegas, 124 Nev. 224, 227-28,
181 P.3d 670,
672 (2008) (reviewing grant of motion to dismiss de novo), and we affirm.
Issue preclusion bars Postel's claim. For issue preclusion to
apply, the proponent must demonstrate that:
(1) the issue decided in the prior litigation must be
identical to the issue presented in the current
action; (2) the initial ruling must have been on the
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OF
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merits and have become final; (3) the party against
whom the judgment is asserted must have been a
party or in privity with a party to the prior
litigation; and (4) the issue was actually and
necessarily litigated.
Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1055,
194 P.3d 709, 713
(2008) (internal quotation marks, footnotes, and alterations omitted). Issue
preclusion can apply "even though the causes of action are substantially
different, if the same fact issue is presented." LaForge v. State, Univ. &
Cmty. Coll. Sys. of Nev.,
116 Nev. 415, 420,
997 P.2d 130, 134 (2000)
(internal quotation marks omitted).
First, the same issue is presented, to wit: Did William Melton
validly disinherit all his relatives? Compare NRS 154.120(1) (requiring an
escheated estate claimant to demonstrate the "nature of the claim"), with
Melton, 128 Nev. at 54,
272 P.3d at 680-81 (holding in the probate action
that "when a disinheritance clause is enforceable . . . a disinherited heir is
treated, as a matter of law, to have predeceased the testator," requiring
escheat). Second, Melton is final and reached the merits, requiring escheat
and rejecting claims on the estate from relatives—like Postel. Third, any
relative, like Postel, had privity with every other relative, because any
relative's claim to the estate necessitated attacking Melton's disinheritance
clause, which the relatives did in Melton. See
128 Nev. at 39-40,
272 P.3d
at 671-72; Bergeron v. Loeb,
100 Nev. 54, 58,
675 P.2d 397, 400 (1984)
(holding that "the action of the probate court is conclusive as to all creditors
and others interested in the estate and that the proceeding is an action in
rem) (emphasis added); see also 50 CAS. Judgments § 1359 (2021 update)
(noting that courts have allowed issue preclusion to be asserted against nonparties when prior action is in rein); W. Union Tel. Co. v. Pennsylvania,
368
U.S. 71, 75 (1961) (recognizing that an escheat operates in rem). Finally,
2
Melton leaves little doubt that the validity of the disinheritance clause issue
was actually and necessarily litigated.
PosteFs argument regarding the proper scope of NRS
154.120(1) cannot overcome the issue preclusion Melton establishes. As
Melton holds, 128 Nev. at 54,
272 P.3d at 680-81, upholding the validity of
the disinheritance clause resulted in all relatives of Melton's being treated,
as a matter of law, as having predeceased the decedent, requiring escheat.
This defeats Postel's NRS 154.120 claim as a matter of law. Accordingly,
we
ORDER the judgment of the district court AFFIRMED.
J.
Cadish
Pickering
t=z;
,
J.
Herndon
cc: Hon. James Todd Russell, District Judge
Day R. Williams, Attorney at Law
Clouser Hempen Wasick Law Group, Ltd.
Attorney General/Carson City
Carson City Clerk
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