Pierce v. Canyon Gate Med. Grp., LLC ( 2015 )

 Appellant Cheryl Pierce appeals the district court's order
granting respondent Canyon Gate Medical Group, LLC's (CGMG) 1 motion
to dismiss pursuant to NRCP 12(b)(5). The district court dismissed the
declaratory relief action because it found that the case was not
appropriate for declaratory relief. 2 We agree. 3
Standard of review
If matters outside the pleadings are considered in NRCP
12(b)(5) motions, "this court reviews the dismissal order as though it were
an order granting summary judgment." Witherow v. State Bd. of Parole
Commirs, 123 Nev. 305, 307-08, 167 P.3d 408, 409 (2007); see also NRCP
12(b). Summary judgment must be granted when the pleadings and
evidence in the record "demonstrate that no genuine issue as to any
material fact remains and that the moving party is entitled to a judgment
as a matter of law." Witherow, 123 Nev. at 308, 167 P.3d at 409 (internal
quotations omitted). Orders granting summary judgment are reviewed de
novo. Id.
Here, although the district court dismissed the action
pursuant to NRCP 12(b)(5), it held a hearing on the motion, indicating
1 There are multiple respondent parties named in this appeal but
only CGMG filed an answering brief. This appears to be because "CGMG
metamorphosed into various entities" over the years. The parties do not
dispute that CGMG employed Ronald Sparling, M.D. at the time of this
incident. Accordingly, we collectively refer to the respondents as CGMG.
2 Thedistrict court also determined that the claim was barred by the
applicable statute of limitations. Because of our decision regarding
declaratory relief, we do not reach the statute of limitations question.
3 Because both parties are familiar with the facts in this case, we
discuss them only when necessary for the disposition's outcome.
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that matters outside the pleadings were considered. Accordingly, we
review this order as one granting summary judgment.
Declaratory relief is not appropriate
Pierce requested that the district court determine whether
CGMG's liability as an employer under NRS 41.130 for damages in a
separate medical malpractice suit against Dr. Sparling is subject to the
statutory damage cap of $350,000 under NRS 41A.035. Declaratory relief
is available pursuant to NRS 30.040, which states in relevant part that
[a]ny person interested under a deed, written
contract or other writings constituting a contract,
or whose rights, status or other legal relations are
affected by a statute, municipal ordinance,
contract or franchise, may have determined any
question of construction or validity arising under
the instrument, statute, ordinance, contract or
franchise and obtain a declaration of rights, status
or other legal relations thereunder.
NRS 30.040(1). While Pierce's request is arguably a determination of
statutory construction, declaratory relief is also subject to NRS 30.080 and
this court's previous jurisprudence.
Under NRS 30.080, a district court may refuse to enter a
declaratory judgment if it "would not terminate the uncertainty or
controversy giving rise to the proceeding." This court has also held that
declaratory relief is only available when
(1) a justiciable controversy exists between
persons with adverse interests, (2) the party
seeking declaratory relief has a legally protectable
interest in the controversy, and (3) the issue is ripe
for judicial determination. Knittle v. Progressive
Cas1-1 Ins. Co., 112 Nev. 8, 10, 908 P.2d 724, 725
(1996). However, whether a determination in an
action for declaratory judgment is proper is a
matter for the district court's discretion and will
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not be disturbed on appeal unless the district court
abused that discretion.
Cty. of Clark, ex rel., Univ. Med. Ctr. v. Upchurch, 114 Nev. 749, 752, 961
P.2d 754, 756 (1998) (emphases added).
The question before this court is whether "the issue is ripe for
judicial determination." Id. In Upchurch, we concluded that a declaratory
relief action was appropriate because "resolution of the [damages] issue
may end the controversy between the parties and could save them from
undergoing a lengthy and expensive trial." Id. at 753, 961 P.2d at 757.
Here, Pierce brought a medical malpractice suit against Dr. Sparling.
CGMG was not named as a tortfeasor in that lawsuit, and Pierce makes it
clear that she does not intend to bring a tort claim against CGMG.
Instead, Pierce filed a separate declaratory relief action against CGMG,
arguing that CGMG is vicariously liable to Pierce for all damages awarded
in Dr. Sparling's negligence case, and the damages cap of $350,000 under
NRS 41A.035 is not applicable to CGMG. We find that unlike Upchurch,
where this court determined that "resolution of the issue will likely end
the controversy," 114 Nev. at 752, 961 P.2d at 757, resolution of the
declaratory relief sought against CGMG will not end the controversy
between Pierce and CGMG.
Additionally, in Knittle, this court determined that if a
plaintiffs rights against a defendant in a declaratory relief action are
"contingent on her successful litigation of a pending tort suit," a plaintiff
cannot assert a "legally protectable interestS creating a justiciable
controversy ripe for declaratory relief." 112 Nev. at 11, 908 P.2d at 726.
Here, Pierce's rights against CGMG are contingent on her suit against Dr.
Sparling. Accordingly, we agree with the district court's conclusion that
this issue is not ripe for judicial determination. Any such declaration
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would constitute an advisory opinion. Id.; cf. Personhood Nev. v. Bristol,
126 Nev. 599, 602, 245 P.3d 572, 574 (2010) ("This court's duty is not to
render advisory opinions but, rather, to resolve actual controversies by an
enforceable judgment.").
We conclude that the district court did not err in determining
that the action should be dismissed because the case was not appropriate
for declaratory relief. Accordingly, there is no genuine issue of material
fact, and CGMG is entitled to judgment as a matter of law. We therefore
ORDER the judgment of the district court AFFIRMED.
, C.J.
Hardesty
1:2432Mr
Parx:aguirre Doug
Ch Saitta
Le J.
Gibbons Pickering
cc: Hon. Nancy L. Allf, District Judge
Stephen E. Haberfeld, Settlement Judge
Eckley M. Keach, Chtd.
Thomas & Springberg, P.C.
Murdock & Associates, Chtd.
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
Kravitz, Schnitzer & Johnson, Chtd.
Eighth Judicial District Court Clerk
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