Berkson v. LePome

Pickering, J.,

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.

*5051. Res judicata or claim preclusion

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, 125 Nev. 550, 216 P.3d 239 (2009), where we noted that, on the first appeal, the court “reversed” the original judgment, “ruled that because substantial evidence did not support the verdict, LePome deserved judgment as a matter of law,” id. at 552, 216 P.3d at 241, and held: “When this court reverses a judgment on a jury verdict for insufficient evidence and declares the appellant entitled to judgment as a matter of law, the reversal and remittitur comprise the judgment by which the parties and the district court are thereafter bound.” Id. at 553, 216 P.3d at 242 (emphasis added). Because “[a] valid and final personal judgment rendered in favor of the defendant bars another action by the plaintiff on the same claim,” Restatement (Second) of Judgments § 19 (1982), except “[w]hen the judgment is one of dismissal for lack of jurisdiction, for improper venue, for nonjoinder or misjoinder of parties,” or for other non-claims-preclusive reasons, id. § 20, cited with approval in Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1054 n.27, 194 P.3d 709, 713 n.27 (2008), I conclude, as my colleagues do, that (1) the reversal in the first appeal resulted in a final judgment, and (2) the prior appellate judgment commands res judicata or claim-preclusive effect.

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 *506matter jurisdiction?1 In that situation, NRS 11.340 provides relief. It gives a plaintiff who won at trial but lost on appeal on a technical, non-merits-preclusive point a one-year grace period to refile the suit, when otherwise, without NRS 11.340, the statute of limitations would have run. The second suit is subject to whatever other defenses might apply, but the statute of limitations, per NRS 11.340, isn’t one of them.

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 30.2 Just a single sentence, NRS 11.340 has always begun with a reference to limitations periods — “If an action shaü be commenced within the time prescribed therefor . . . .’’ — continuing with, “and a judgment therein for the, plaintiff be reversed on appeal” — and ended with a reference to limitations periods: “the plaintiff . . . may commence a new action within 1 year after the reversal.” Id.; 1912 Revised Laws of Nevada, Vol. 2, § 4980; 1929 Nev. Compiled Laws § 8537; NRS 11.340. And it has always kept company with other sections of its kind, in the chapters comprising statutes of limitation and their tolling exceptions. 1912 Revised Laws of Nevada, Vol. 2, §§ 4974-4985 (denominated as Chapter 5 of the Civil Practice Act); 1929 Nev. Compiled Laws §§ 8532-8542 (denominated as Chapter 5 of the Civil Practice Act); NRS Chapter 11. From this it follows that NRS 11.340 only concerns statutes of limitations, not other broader defenses like claim and issue preclusion. See 2A Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 46:5, at 189-201 (7th ed. 2007) (“A statute is passed as a whole and not in parts or sections .... each part or section should be construed in connection with every other part or section [and] it is not proper to confine interpretation to the one section to be construed.” (footnote omitted)); *507see 2B id. § 51:3 (7th ed. 2008) (statutes passed together should be construed “in pari materia”).

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 Hartford, Conn., 154 P.2d 399, 404 (Cal. 1944), while New York had something similar, Gaines v. City of New York, 109 N.E. 594, 595 (N.Y. 1915) (tracing the New York statute back to 1788), as did Massachusetts, Liberace, 574 N.E.2d at 1012 (tracing the Massachusetts statute back to 1835), Florida, City of Orlando v. Murphy, 94 F.2d 426, 429 n.2 (5th Cir. 1938) (reprinting and applying Florida’s version of NRS 11.340), and other states, see 51 Am. Jur. 2d Limitation of Actions §§ 287-88 (2000). Indeed, these statutes go all the way back to the English Limitation Act of 1623. See Bollinger, 154 P.2d at 404 (“section 355 of the [California] Code of Civil Procedure” — containing language identical to NRS 11.340 — was “copied from section 84 of the New York Code of Procedure, which in turn was based on section 4 of the English Limitation Act of 1623”). Legal thinkers as profound as Cardozo and Traynor have found worth in these savings statutes:

“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, 154 P.2d at 405 (Traynor, J.) (quoting Gaines, 109 N.E. at 596 (Cardozo, J.)).

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, 94 F.2d 426 (5th Cir. 1938), Murphy, who lost on a prior appeal, invoked a Florida statute like NRS 11.340 to argue he could start his case all over again, despite the appellate court judgment against him. The court made short work of Murphy’s argument (and case). “[T]he statute under which [Murphy] claims the right to file does not enlarge or affect, indeed, it has nothing whatever to do with, the right of a person after reversal to retry his case, either in the same *508action or by a new suit, when the law of the case, as settled by the reversing decision and opinion, leaves nothing to retry.” Id. at 429. Accord Liberace, 574 N.E.2d at 1013 (“As to a case adjudicated on the merits [on a prior appeal], principles of res judicata apply and the renewal statute [comparable to NRS 11.340] has no pertinence.”); see 51 Am. Jur. 2d Limitation of Actions § 288 (2000) (observing that “[t]he rule that a savings statute [like NRS 11.340] is inapplicable if the prior action was dismissed on the merits is essentially a corollary of the principle of res judicata that once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred”).3

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, 118 Nev. 115, 120-21, 40 P.3d 436, 439 (2002), or that invalidates a statute on separation of powers grounds when another, more limited reading would not. Waite v. Burgess, 69 Nev. 230, 232-33, 245 P.2d 994, 996 (1952).

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 constitutional 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, 245 P.2d at 996 (citing Nev. Const. art. 3, § 1). Waite’s circumspect approach seems especially appropriate here, where the statute challenged as unconstitutional was passed in 1861, three years before the Nevada Constitution was adopted, Debates & Proceedings of the Nevada State Constitutional Convention of 1864, at 779 (Andrew J. Marsh off. rep. 1866), and has been *509reenacted many times since, see supra note 2. See also Zamora v. Price, 125 Nev. 388, 392, 213 P.3d 490, 492-93 (2009) (“statutes are presumed to be valid” and will be upheld unless “the constitution is clearly violated” (citing Universal Electric v. Labor Comm’r, 109 Nev. 127, 129, 847 P.2d 1372, 1373-74 (1993)); 2A Sutherland Statutory Construction, supra, § 45:11, at 81-83 (“statutory provisions should be construed to avoid unconstitutionality .... If [a] law is reasonably open to two constructions, one that renders it unconstitutional and one that does not, the court must adopt the interpretation that upholds [its] constitutionality.” (footnote omitted)).

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.4

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 *510untested and as yet unimagined ways. Cf. Arceo v. Tolliver, 19 So. 3d 67, 75 (Miss. 2009) (Mississippi’s analogous savings statute, which dates back to 1848, could have saved the plaintiff’s second malpractice suit after the first was dismissed for lack of the pre-suit notice required) (dictum). For this reason, I would not invalidate NRS 11.340 on separation of powers grounds but leave it intact for another litigant another day. While I thus concur in the decision to affirm the dismissal below, I respectfully dissent from the majority’s interpretation and invalidation of NRS 11.340 on separation of powers grounds and its reversal of the district court’s decision awarding attorney fees to LePome.

The example in the text is based on Liberace v. Conway, 574 N.E.2d 1010, 1012 (Mass. App. Ct. 1991), which used a statute like NRS 11.340 to save pendent state law claims in a federal case dismissed for want of subject matter jurisdiction after the statute of limitations had run.

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., 34 Cal. Rptr. 2d 175, 178 (Ct. App. 1994) (reprinting amended version of Cal. Civ. Proc. Code § 355). This eliminates ambiguity by making express the otherwise implicit restriction that such statutes only apply to a statute-of-limitations defense, not res judicata or claim preclusion. See Yonkers Contracting v. Port Authority, 712 N.E.2d 678, 681 (N.Y. 1999) (New York’s carve-out of “final judgment upon the merits” from its prior-proceedings tolling statute is “essentially a corollary of the principle of res judicata”). These amendments reinforce the argument that statutes like NRS 11.340 have no pretensions of subverting final appellate judgments.

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, 89 Nev. 320, 322-23, 511 P.2d 1043, 1045 (1973) (repeals by implication are disfavored).