Opinion
No. 79331-COA No. 80626-COA
06-28-2021
LORI IRISH, Appellant, v. MICHELE LOBELLO; JOHN D. JONES; AND BLACK & LOBELLO, A PROFESSIONAL LIMITED LIABILITY COMPANY, Respondents.
ORDER OF AFFIRMANCE
Lori Irish appeals from district court orders granting a combined motion to dismiss/motion for summary judgment and awarding attorney fees. Eighth Judicial District Court, Clark County; Rob Bare, Judge.
As part of a post-divorce settlement, Lori's former husband, James Gormley, settled the Colby Gormley Irish Irrevocable Trust (CGIIT) for the benefit of their child, Colby Gormley Irish. Lori served as the initial trustee of the CGIIT until her removal in 2008. Lori's brother, F. Philip Irish (Philip) now serves as the trustee.
In the underlying action, Lori filed a complaint against respondents Michele LoBello, John D. Jones, and their law firm, Black & LoBello (collectively, LoBello), and alleged that LoBello represented Philip in his capacity as trustee of the CGIIT and subsequently neglected to instruct Philip on how to adequately perform his duties as trustee. Accordingly, Lori's complaint contained causes of action for: (1) breach of fiduciary duty; (2) declaratory relief (seeking a declaration that LoBello had a fiduciary and professional duty to advise Philip regarding proper control of trust assets); (3) misappropriation and waste of trust assets; (4) professional negligence; and (5) unjust enrichment.
Shortly after Lori filed her complaint, LoBello filed a "Defendants' Motion to Dismiss and/or for Summary Judgment of Plaintiff's Complaint with Prejudice." In the motion, LoBello alleged that (1) her only connection to Lori is that she previously represented Lori's ex-husband, James Gormley, in matters related to their divorce, and (2) that neither LoBello, her partner Jones, nor her law firm Black & LoBello had ever represented Philip in any capacity, and she requested that the district court dismiss Lori's complaint with prejudice.
In support of the motion, LoBello and Jones submitted sworn affidavits averring that they had never represented Philip. LoBello also included an affidavit from Philip, wherein he avers that he never had an attorney-client relationship with LoBello or any of the respondents, either as trustee or in his personal capacity, and confirmed that Matthew Policastro represented him when the district court appointed him as successor trustee of the CGIIT in 2008.
Lori opposed the motion, arguing generally that the district court should disregard the affidavits filed in support of the motion, alleging that both LoBello and Philip had a long history of dishonesty that affected their credibility, and requesting additional time to conduct discovery under NRCP 56(d). In support of her opposition, Lori attached a minute order from a 2008 hearing where the district court appointed Philip as successor trustee and argued that this minute order demonstrates that the district court awarded LoBello an excess of $10,000 for her representation of the Trust. Lori also attached two affidavits, one from herself and one from Colby, that generally allege that LoBello and Philip are in frequent contact with each other and that Colby recalls visiting LoBello's office with Philip as a teenager.
LoBello filed a reply, and shortly thereafter, the district court decided the motion on its chambers calendar. In its order, the district court granted LoBello's motion to dismiss/motion for summary judgment and dismissed Lori's complaint with prejudice. Specifically, the district court's order granted summary judgment on the basis that Lori "was unable to present any evidence" to rebut LoBello's affidavit and further failed to establish that LoBello ever represented Philip or the CGIIT Trust, and accordingly, no genuine dispute of material fact exists. The order further determined, in dismissing the case, that Lori's complaint failed to state a claim on which relief could be granted.
Following entry of the order dismissing Lori's complaint, LoBello sought attorney fees under NRS 18.010(2)(a) and (b), and, after the parties completed briefing on the motion, the district court awarded LoBello $5,236.50 in fees based on its finding that Lori "brought and maintained the claim without reasonable grounds or to harass" LoBello. Lori now appeals.
On appeal, Lori contends that the district court erred when it granted LoBello's combined motion to dismiss/motion for summary judgment, and further challenges the district court's award of attorney fees under NRCP 18.010(2)(b). In her answering brief, LoBello argues that the district court properly granted summary judgment and awarded attorney fees as Lori failed to present any evidence that would support a genuine dispute of material fact. We first address the district court's order granting summary judgment in favor of LoBello.
As an initial matter, we note that the district court both dismissed Lori's complaint under NRCP 12(b)(5) and granted summary judgment to LoBello under NRCP 56. However, because the district court considered evidence outside of the pleadings, this court reviews the district court's order solely as granting summary judgment. See NRCP 12(d) ("If, on a motion under Rule 12(b)(5) . . . , matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.").
Accordingly, we decline to address the parties' arguments relating to NRCP 12(b)(5).
This court reviews a district court's order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is proper when the pleadings and other evidence in the record establish that no genuine dispute of material fact exists and that the moving party is entitled to a judgment as a matter of law. Id. The nonmoving party "may not rest upon general allegations and conclusions, but must, by affidavit or otherwise, set forth specific facts demonstrating the existence of a genuine factual issue." Id. at 731, 121 P.3d at 1030-31 (internal quotation marks omitted).
Having considered Lori's arguments and the record on appeal, we conclude that the district court properly granted summary judgment in favor of LoBello as Lori failed to present facts demonstrating the existence of a genuine factual dispute. Lori contends that the affidavits she filed in support of her motion for summary judgment establish that there is a genuine dispute of material fact. However, a review of the record reveals that these affidavits mostly contain conclusory statements alleging that the facts stated in her complaint and opposition are true, and they attack the credibility of LoBello and Philip without factual support in the record. These conclusory statements are insufficient to overcome LoBello's motion for summary judgment. Cf. Clauson v. Lloyd, 103 Nev. 432, 434-35, 743 P.2d 631, 633 (1987) (holding that a conclusory, factually unspecific affidavit was not itself sufficient to support summary judgment); see also Cairone v. 105 Casino Corp., 82 Nev. 166, 171, 414 P.2d 106, 109 (1966) (affidavits are ineffective when they state "conclusion[s] without factual support in the record").
Lori further contends that court minutes from June 3, 2008, which she included as part of her opposition to the motion for summary judgment below, conclusively establish that LoBello represented Philip. Specifically, Lori argues that these minutes show that the district court awarded LoBello an excess of $10,000 in attorney fees for representing the trust at that hearing. But this assertion is belied by the court minutes themselves, which reveal that LoBello represented Lori's ex-husband, Gormley, and that Matthew Policastro represented Philip as trustee during the proceedings. Further, the district court minutes do not demonstrate that the trust paid LoBello in excess of $10,000, nor do they reveal the amount of any fee award. Indeed, the minutes indicate that the district court did not award fees at that hearing, but instead instructed counsel to file a memorandum of fees and costs without specifying which attorneys would file the motion.
Nonetheless, Lori also challenges the district court's order on the grounds that it refused to grant her additional time to conduct discovery under NRCP 56(d). In particular, Lori avers that she would need to subpoena business, home, and cell-phone records from Philip, her ex-husband, and LoBello, along with billing records, emails, and appointment records from Black & LoBello, among other things, to demonstrate that LoBello had an attorney-client relationship with Philip. However, relief under NRCP 56(d) is permissive, not mandatory, and here, Lori failed to adequately demonstrate that this additional discovery was necessary or that it would provide any basis for avoiding summary judgment. See Aviation Ventures, Inc. v. Joan Morris, Inc., 121 Nev. 113, 118, 110 P.3d 59, 62 (2005) (stating that the appellate courts review a denial of a motion for a continuance under (former) NRCP 56(f) for an abuse of discretion and that such a motion "is appropriate only when the movant expresses how further discovery will lead to the creation of a genuine [dispute] of material fact"). Accordingly, we affirm the district court's grant of summary judgment, as Lori failed to set forth sufficient evidence to establish a genuine dispute of material fact concerning LoBello's representation of Philip.
We also note that Lori's reliance on Charleson v. Hardesty, 108 Nev. 878, 882-83, 839 P.2d 1303, 1306-07 (1992) (holding that an attorney for a trustee also owes a fiduciary duty to the trust's beneficiaries), to support her claims regarding breach of fiduciary duty also supports summary judgment in favor of LoBello, as the holding in Charleson has been superseded by statute. See Canarelli v. Eighth Judicial Dist. Court, 136 Nev. 247, 255 n.3, 464 P.3d 114, 122 n.3 (2020) (noting that the holding in Charleson was superseded by NRS 162.310(1) in 2011); see also NRS 162.310(1) ("An attorney who represents a fiduciary does not, solely as a result of such attorney-client relationship, assume a corresponding duty of care or other fiduciary duty to a principal.").
Next, we turn to Lori's arguments against the district court's award of attorney fees under NRS 18.010(2)(b). Here, Lori argues that she brought the action in good faith and that, because the district court improperly granted summary judgment, this court should reverse the award of attorney fees on appeal. NRS 18.010(2)(b) permits a district court to award attorney fees when it finds that a claim "was brought or maintained without reasonable ground or to harass the prevailing party." "[A] claim is frivolous or groundless if there is no credible evidence to support it." Rodriguez v. Primadonna Co., 125 Nev. 578, 588, 216 P.3d 793, 800 (2009).
Here, the district court expressly found that Lori provided no credible evidence to support the allegations in her complaint. And as discussed above, the district court appropriately granted summary judgment in favor of LoBello. Thus, to the extent Lori challenges the fees award on the basis that summary judgment was not properly granted, this argument fails to demonstrate any abuse of discretion in awarding LoBello her attorney fees. See Stubbs v. Strickland, 129 Nev. 146, 152, 297 P.3d 326, 330 (2013) (reviewing an award of attorney fees under NRS 18.010(2)(b) for an abuse of discretion).
Moreover, Lori does not challenge the reasonableness of the requested fees or raise any arguments on appeal relating to Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969) (listing factors for district courts to consider when awarding attorney fees). Thus, those arguments have been waived, and we need not consider them on appeal. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). Nevertheless, the record demonstrates that the district court did consider the Brunzell factors in awarding attorney fees to LoBello. Accordingly, we affirm the district court's award of attorney fees, and in light of the foregoing, we
ORDER the judgment of the district court AFFIRMED.
Insofar as the parties raise arguments that are not specifically addressed in this order, we have considered the same and conclude that they either do not present a basis for relief or need not be reached given the disposition of this appeal.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Bulla cc: Chief Judge, Eighth Judicial District Court
Eighth Judicial District Court, Dept. 32
Lori Irish
Lipson Neilson P.C.
Eighth District Court Clerk