Opinion
83609-COA
04-20-2023
OSWALDO PORTILLO, Appellant, v. CAROL A. PETERSON, SUCCESSOR TRUSTEE OF THE NICK DORSANO FAMILY TRUST OF JUNE 21, 2012, Respondent.
UNPUBLISHED OPINION
ORDER OF AFFIRMANCE
Appellant Oswaldo Portillo appeals from a district court order dismissing his complaint for negligence with prejudice pursuant to NRCP 16(f)(1). Eighth Judicial District Court, Clark County; Eric Johnson, Judge.
In March 2016, respondent Nick Dorsano rear-ended the vehicle in front of him, driven by Eric Hall, who in turn rear-ended Portillo's vehicle. Portillo filed a complaint almost two years later, alleging negligence and negligence per se. Over the next two years, Portillo was represented by three separate attorneys, who in turn withdrew as counsel, resulting in Portillo proceeding pro se in mid-2020. Discovery closed on April 17, 2020.
Upon Dorsano's death in early 2021, Carol Peterson, successor of the Nick Dorsano Family Trust, was substituted in place of Dorsano as the defendant in the proceedings below and as respondent on appeal.
Hall was initially named as a defendant, but the district court dismissed him from the case in June 2020.
Beginning in July 2021, and at several hearings through September 2021, the district court reset the trial date and repeatedly ordered Portillo to provide respondent with a list of witnesses he intended to call at trial and a list of medical records he intended to introduce. The court further ordered Portillo to appear in person at various pretrial hearings and present proof of service of subpoenas on his witnesses and written confirmation from his physicians of the payment of fees required to appear or their intent to appear as witnesses without payment. Portillo initially provided respondent with a partial list of witnesses, but largely failed to comply with the court's orders. In particular, he repeatedly failed to appear at hearings or turn over any further discovery to respondent, although he did file a motion to reopen discovery, which the district court denied. Based on Portillo's failure to provide the various pretrial disclosures, respondent orally moved the court to dismiss the case on several occasions.
During a hearing on September 22, 2021, Portillo informed the court that he "had nothing to work with to put on a solid case" and was not prepared to proceed to trial. The court noted that discovery had been closed for over a year and a half and found that Portillo did not act in good faith in preparing for trial.
The district court thereafter entered a written order dismissing Portillo's complaint with prejudice pursuant to NRCP 37(b)(1)(E) and NRCP 16(f)(1) and outlining Portillo's repeated failure to comply with multiple court orders. Relying on NRCP 16(f)(1), the court reasoned that it could "issue any just orders, including those authorized by Rule 37(b)(1)," if a party failed to appear at a pretrial conference, was substantially unprepared to participate or did not participate in good faith in a pretrial conference, or failed to obey a pretrial order. It found Portillo "failed to comply" with NRCP 16(f)(1) "and did not participate in good faith" in pretrial hearings. Additionally, the court noted that he failed to provide medical records or otherwise demonstrate he was ready for trial. This appeal followed.
Although the district court's order cites to Portillo's failure to comply with NRCP 16.1(f) (authorizing the court to waive certain mandatory pretrial disclosures in cases of complex litigation), it uses language from NRCP 16(f). Accordingly, we treat the district court's order as if it proceeded under NRCP 16(f)(1).
On appeal, Portillo challenges the district court's order dismissing his complaint.
In this case, Portillo has failed to make any cogent argument on appeal. While it is clear he is challenging the order dismissing his complaint with prejudice, he merely asks that this court review his case and asserts that the district court should have made a "proper" ruling in his favor due to the "stress, damage and trauma" resulting from his injury. In so doing, he wholly fails to address the district court's conclusion that dismissal was warranted under NRCP 16(f)(1) based on his failure to appear at pretrial conferences, his failure to be prepared to participate in those conferences or participate in good faith, and his failure to obey pretrial orders, including the directive that he "illustrate his trial readiness" and provide respondents with various materials prior to the hearings. Portillo likewise fails to address the fact that, at the hearing resulting in the court's dismissal of his case, he made a clear admission that he had "nothing to work with to put on a solid case," despite multiple orders detailing what was required of him.
Because Portillo has neglected to address any specific contention of error in his brief or otherwise address the grounds the district court relied on to dismiss his case, and has failed to set forth any cogent argument in support of his appellate concerns, we need not consider his bare allegations. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (holding that the court need not consider claims not cogently argued). Accordingly, we necessarily
ORDER the judgment of the district court AFFIRMED.
Gibbons, C.J., Bulla J., Westbrook JJ.
Hon. Eric Johnson, District Judge