Opinion
No. 58779
12-18-2013
WACKENHUT OF NEVADA, INC., Appellant, v. MICHAEL SMITH, ADMINISTRATOR FOR THE ESTATE OF MICHAEL BORN, DECEASED; PETER BORN; STEFAN BORN; SUSAN PRESTON, ON BEHALF OF THE MINOR CHILD, MATHIAS BORN; AND WAL-MART STORES, INC., Respondents.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER VACATING IN PART AND REMANDING
This is an appeal from a district court's entry of judgment following a jury trial and a post-trial order denying a motion for a new trial. Eighth Judicial District Court, Clark County; Mark R. Denton, Judge.
After considering the arguments raised on appeal, we conclude that one issue warrants discussion: whether the district court abused its discretion in denying Wackenhut's NRCP 59(a)(2) motion for a new trial, wherein Wackenhut alleged that counsel for the plaintiffs engaged in acts of attorney misconduct. As explained below, we are unable to determine whether the district court abused its discretion because it failed to state specific findings about the alleged acts of misconduct under the distinct standards for evaluating attorney misconduct. See Lioce v. Cohen, 124 Nev. 1, 19-20, 174 P.3d 970, 982 (2008) (concluding that the district court must make explicit findings about attorney misconduct under the specific standards set out within Lioce).
The district court's denial of Wackenhut's motion
Wackenhut contends that the district court abused its discretion when it denied Wackenhut's NRCP 59(a)(2) motion for a new trial. In so asserting, Wackenhut alleges that counsel for the plaintiffs engaged in multiple acts of misconduct that were prejudicial to the extent of warranting a new trial,
A district court's denial of a motion for a new trial is reviewed for abuse of discretion. See Lioce, 124 Nev. at 20, 174 P.3d at 982. When a party has been unduly prejudiced by a prevailing party's misconduct, NRCP 59(a)(2) permits a district court to grant a new trial. However, in deciding whether to grant a new trial, the district court must evaluate the alleged acts of attorney misconduct pursuant to the distinct standards for assessing the effect of different types of misconduct. Lioce, 124 Nev. at 1920, 174 P.3d at 982. The standards vary depending on whether the "misconduct was objected to and admonished, objected to and unadmonished, . . . repeated or persistent, or unobjected to." Id. at 14, 174 P.3d at 978.
"[F]or objected-to and admonished misconduct, a party moving for a new trial bears the burden of demonstrating that the misconduct is so extreme that the objection and admonishment could not remove the misconduct's effect." Id. at 17, 174 P.3d at 981. A new trial is warranted if the district court "finds that the objection and admonishment were insufficient to remove the attorney misconduct's effect." Id. at 17-18, 174 P.3d at 981.
For objected-to conduct that was not admonished by the district court, the moving party "must first demonstrate that the district court erred by overruling the party's objection." Id. at 18, 174 P.3d at 981. If the district court determines that it erred when it overruled the objection, it "must evaluate the evidence and the parties' and the attorneys' demeanor to determine whether a party's substantial rights were affected by the court's failure to sustain the objection and admonish the jury." Id. at 18, 174 P.3d at 981.
When evaluating "repeated or persistent objected-to misconduct, the district court shall factor into its analysis the notion that, by engaging in continued misconduct, the offending attorney has accepted the risk that the jury will be influenced by his misconduct." Id. at 18-19, 174 P.3d at 981. Thus, "the district court shall give great weight to the fact that single instances of improper conduct that could have been cured by objection and admonishment might not be curable when that improper conduct is repeated or persistent." Id. at 19, 174 P.3d at 981.
For unobjected-to attorney misconduct, the district court "must treat the attorney misconduct issue as having been waived, unless plain error exists." Id. at 19, 174 P.3d at 982. Determining whether plain error exists requires the district court to ascertain "whether the complaining party met its burden of demonstrating that its case is a rare circumstance in which the attorney misconduct amounted to irreparable and fundamental error." Id.
In applying the standards above, "the district court must make specific findings, both on the record during oral proceedings and in its order, with regard to its application of the standards described above to the facts of the case[] before it." Id. at 19-20, 174 P.3d at 982 (emphasis added). When a district court's order fails to specifically articulate the application of the standards above to the alleged misconduct, we cannot make a determination about whether the district court abused its discretion in denying the motion for a new trial. Id. at 24-25, 174 P.3d at 985.
Here, Wackenhut's motion for a new trial concerned multiple incidents of purported attorney misconduct. These incidents triggered the different standards that the Lioce court set forth for evaluating attorney misconduct. But in its order, the district court concluded in one paragraph that the misconduct was primarily directed at Wal-Mart and that the verdict in favor of Wal-Mart showed that the misconduct did not affect the jury to the extent of materially affecting Wackenhut's substantial rights. The order's terse analysis does not comport with Lioce 's requirement that a district court explicitly state its findings under the different standards for assessing whether attorney misconduct warrants a new trial. See id. at 24-25, 174 P.3d at 985. Without the specific findings that Lioce requires, we are unable to conclude whether the district court abused its discretion in denying Wackenhut's NRCP 59(a)(2) motion for a new trial. The district court must revisit the issue of attorney misconduct
The district court must revisit Wackenhut's NRCP 59(a)(2) motion for a new trial and, in so doing, make specific findings about the alleged attorney misconduct under the distinct standards set forth in Lioce. For the foregoing reasons, we
We have considered the remaining contentions on appeal, including whether the district court erred in denying Wackenhut's motion for summary judgment and whether sufficient evidence supported the jury's verdict. Because of our determinations above, we need not reach these issues at this time.
ORDER the post-trial order of the district court VACATED IN PART AND REMAND this matter to the district court for proceedings consistent with this order.
___________________, J.
Gibbons
___________________, J.
Douglas
___________________, J.
Saitta
cc: Hon. Mark R. Denton, District Judge
Craig A. Hoppe, Settlement Judge
Thorndal Armstrong Delk Balkenbush & Eisinger/Las Vegas
Hutchison & Steffen, LLC
Mont E. Tanner
Phillips, Spallas & Angstadt, LLC
Eighth District Court Clerk