IN THE SUPREME COURT OF THE STATE OF NEVADA
JAMES R. AYMANN, No: 65292
Appellant,
vs.
JOHN PETER LEE, LTD.; FREDERICK
WAID, PERSONAL REPRESENTATIVE
OF JOHN PETER LEE, DECEASED;
FILED
PAUL C. RAY, PROFESSIONALLY AND JUL 1 3 2016
INDIVIDUALLY; AND YVETTE
FREEDMAN,
Respondents.
ORDER AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
This is a pro se appeal from a district court order granting a
motion to dismiss an attorney malpractice action. Eighth Judicial District
Court, Clark County; Kerry Louise Earley, Judge.
Appellant James R. Aymann retained respondents as his
attorneys in previous litigation. The dismissal of that litigation was
appealed to this court in Docket No. 66774 on October 17, 2014, and the
appeal was resolved on December 21, 2015.
While the underlying litigation was pending, appellant filed
the instant action against respondents, alleging, among other things,
malpractice, various other torts and fraud based on the attorney/client
relationship, and elder abuse. Respondents moved to dismiss the
malpractice action, and the district court dismissed appellant's first,
second, fourth, fifth, and sixth causes of action for, respectively, fraudulent
concealment, fraudulent misrepresentation, tortious breach of the implied
covenant of good faith and fair dealing, fraud in the inducement, and civil
conspiracy for failure to state a claim and/or failure to plead fraud with
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sufficient specificity. See NRCP 9(b). The district court dismissed the
remaining causes of action under NRS 11.207(1), the two-year statute of
limitations governing attorney malpractice actions. This appeal followed.
The causes of action dismissed for failure to state a claim
We review "de novo a district court's order granting a motion
to dismiss, and such an order will not be upheld unless it appears beyond
a doubt that the plaintiff could prove no set of facts . . . [that] would entitle
him [or her] to relief." Moon v. McDonald, Carano & Wilson LLP, 129
Nev., Adv. Op. 56, 306 P.3d 406, 408 (2013) (alterations in original,
quotation marks omitted). We have considered appellant's arguments
concerning the first, second, fourth, fifth, and sixth causes of action in
light of this standard, and we affirm the district court's dismissal of those
causes of action. See JA. Jones Constr. Co. v. Lehrer McGovern Bovis,
Inc., 120 Nev. 277, 290-91, 89 P.3d 1009, 1018 (2004) (fraud in the
inducement); Dow Chem. Co. v. Mahlum, 114 Nev. 1468, 1485, 970 P.2d
98, 110 (1998) (fraudulent concealment), overruled in part on other
grounds by GES, Inc. v. Corbitt, 117 Nev. 265, 271, 21 P.3d 11, 15 (2001);
Consol. Generator—Nev., Inc. v. Cummins Engine Co., 114 Nev. 1304, 1311,
971 P.2d 1251, 1256 (1998) (civil conspiracy); Barmettler v. Reno Air, Inc.,
114 Nev. 441, 446-47, 956 P.2d 1382, 1386 (1998) (fraudulent
misrepresentation); Great Am. Ins. Co. v. Gen. Builders, Inc., 113 Nev.
346, 354-55, 934 P.2d 257, 263 (1997) (tortious breach of the implied
covenant of good faith and fair dealing).
The causes of action dismissed under the attorney malpractice statute of
limitations
As to the district court's dismissal of the remaining causes of
action under NRS 11.207(1), that statute sets forth the limitations period
for legal malpractice claims. The limitations period, however, may be
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tolled by the litigation malpractice tolling rule, which provides that, in the
context of litigation-based malpractice, "damages do not begin to accrue
until the underlying legal action has been resolved." Hewitt v. Allen, 118
Nev. 216, 221, 43 P.3d 345, 348 (2002). If an appeal is filed, the action is
not deemed resolved until the appeal is decided. Id.
The district court, however, implicitly applied the continuous
representation rule, under which a legal malpractice cause of action
begins to accrue when "the attorney's representation concerning a
particular transaction is terminated." 3 Ronald E. Mallen & Jeffrey M.
Smith, Legal Malpractice § 23:13, at 508 (2014) (internal quotation marks
omitted). The effect of this rule in the litigation context would be to cut off
the tolling period permitted by the litigation malpractice rule. And in
practice, malpractice actions brought to comply with the continuous
representation rule are often stayed while the underlying litigation
proceeds so that damages can be determined. See VanSickle v. Kohout,
599 S.E.2d 856, 861 (W. Va. 2004) (noting that malpractice actions
brought before the resolution of the underlying litigation may need to be
stayed in order to await a determination of the malpractice plaintiffs
damages, if any). To avoid the necessity of filing a malpractice action
prior to the determination of damages, we decline to adopt the continuous
representation rule in the litigation context and continue to apply the
litigation malpractice tolling rule.
In this case, appellant's appeal in the underlying action was
not resolved until December 21, 2015. Accordingly, the malpractice-based
causes of action were tolled until that date, and dismissing those causes of
action on April 15, 2014, was premature. We therefore reverse the district
court's dismissal of the third, seventh, eighth, and ninth causes of action
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based on NRS 11.207, and remand this matter to the district court for
further proceedings.'
It is so ORDERED.
Gibbons
cc: Hon. Kerry Louise Earley, District Judge
James R. Aymann
John Peter Lee, Ltd.
Paul C. Ray, Chtd.
Yvette Y. Freedman
Eighth District Court Clerk
'Respondent Yvette Freedman argues that appellant's malpractice
action against her is not based on the underlying litigation, and thus, as to
her, the malpractice action is time barred or otherwise fails to state a
claim. Freedman, however, did not raise these arguments in the district
court and the district court did not baseS its dismissal order on these
arguments. Accordingly, we decline to consider them on appeal, without
prejudice to Freedman's ability to raise these arguments in the district
court. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981,
983 (1981) (noting that this court generally will not consider on appeal
arguments that were not made to the district court).
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