Garvey, M.D. v. Dist. Ct. (Schwartz) ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
DAVID GARVEY, M.D., AN No. 83533
INDIVIDUAL,
Petitioner,
vs.
THE FOURTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
IN AND FOR THE COUNTY OF ELKO; FILE
AND THE HONORABLE KRISTON N.
HILL, DISTRICT JUDGE, MAY 1 2 2022
Respondents, ELIZABETH A. BROWN
CLERK OFNPRENE COURT
and BY 5.Y
DEPU7Y
ci--C41:
4RK
E
DIANE SCHWARTZ, INDIVIDUALLY
AND AS SPECIAL ADMINISTRATOR
OF THE ESTATE OF DOUGLAS R.
SCHWARTZ,
Real Party in Interest.
ORDER DENYING PETITION FOR WRIT OF MANDAMUS
This is an original petition for a writ of mandamus challenging
a district court order denying partial summary judgment in a tort action
and denying two motions to strike.
Petitioner David Garvey, M.D. challenges a district court order
denying his motion for partial summary judgment and denying motions to
strike two of real-party-in-interest Diane Schwartz's opposing declarations
in a wrongful death and professional negligence action. After considering
petitioner's arguments and supporting documents, we conclude that the
issues raised do not merit our discretionary and extraordinary intervention
at this time. NRS 34.160; Pan v. Eighth Judicial Dist. Court, 120 Nev. 222,
224-25, 88 P.3d 840, 841 (2004). This court generally declines to entertain
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writ petitions seeking interlocutory review of a district court's non-
dispositive summary judgment rulings. State ex rel. Dep't of Transp. v.
Thompson, 99 Nev. 358, 362, 662 P.2d 1338, 1340 (1983); see also NRCP
54(b) (specifying a certification procedure for interlocutory review of certain
summary judgment rulings). And although an exception to this general
prohibition exists where an important legal issue requires clarification,
supervisory writ relief is inappropriate where factual issues remain. See
Anse, Inc. v. Eighth Judicial Dist. Court, 124 Nev. 862, 867, 192 P.3d 738,
742 (2008) (noting that the existence of factual issues weighs against writ
intervention).
Garvey and amici fashion the petition's issue presented—
whether the $50,000 cap on civil damages in NRS 41.503 applies to Diane's
claims—as one of law. But NRS 41.503s application in this case appears
fact dependent, and the parties heavily contest those underlying facts. That
is not to say that NRS 41.503s cap may not apply at a later stage in the
case, but on this record and at this point in the proceeding, extraordinary
writ relief is not appropriate. See Thompson, 99 Nev. at 360, 662 P.2d at
1339. Further, Garvey fails to demonstrate that the district court
manifestly abused its discretion by concluding that the declarations
underlying his motions to strike were irrelevant to its summary judgment
decision and accordingly moot. Walker v. Second Judicial Dist. Court, 136
Nev. 678, 680, 476 P.3d 1194, 1196 (2020) (Where a district court is
entrusted with discretion on an issue . . . we can issue traditional
mandamus only where the lower court has manifestly abused that
discretion or acted arbitrarily or capriciously." (emphases in original)); see
also Thomas v. Hardwick, 126 Nev. 142, 152-53, 231 P.3d 1111, 1118 (2010)
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(reviewing a district court's denial of a motion to strike for an abuse of
discretion). We therefore,
ORDER the petition DENIED.
LIZ6,„g0 J.
Silver
Cadish
Pickering
cc: Hon. Kriston N. Hill, District Judge
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
Claggett & Sykes Law Firm
Greenberg Traurig, LLP/Las Vegas
Elko County Clerk
SUPREME COURT
OF
NEVADA
(0) 1941A 4130)
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