In re Estate of Black , 2016 NV 7 ( 2016 )

132 Nev., Advance Opinion 7
IN THE SUPREME COURT OF THE STATE OF NEVADA
IN THE MATTER OF ESTATE OF No. 63960
LEROY G. BLACK, DECEASED.
WILLIAM FINK, A/K/A BILL FINK, FILED
Appellant,
vs.
FEB 0 4 2016
E K. LINDEMAN
PHILLIP MARKOWITZ, AS EXECUTOR CLE i'
LaF S M• * RTI
OF THE ESTATE OF LEROY G. fuE Alt
tei DE CLERK
BLACK,
Respondent.
Appeal from a district court order dismissing a will contest.
Eighth Judicial District Court, Clark County; Gloria Sturman, Judge.
Vacated and remanded.
Goodsell & Olsen, LLP, and Michael A. Olsen and Thomas R. Grover, Las
Vegas,
for Appellant.
Clear Counsel Law Group and Jonathan W. Barlow and Amy K. Crighton,
Henderson,
for Respondent.
BEFORE PARRAGUIRRE, C.J., DOUGLAS and CHERRY, JJ.
OPINION
By the Court, PARRAGUIRRE, C .J.:
Under NRS 137.090, an individual filing a petition to contest
the validity of a will must issue citations to the estate's personal
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representative and the will's devisees within three months of the will being
admitted to probate. In this appeal, we are asked to determine whether a
failure to timely issue citations results in dismissal of the will contest and
whether a petitioner can move to enlarge the time to issue citations
pursuant to NRCP 6(b) or EDCR 2.25. We hold that a failure to timely
issue citations deprives the court of personal jurisdiction over those to
whom the citations are to be issued. Additionally, we hold that NRCP 6(b)
does not apply to statutory time limits. However, we further hold that the
district court erred in failing to determine whether petitioner demonstrated
excusable neglect under EDCR 2.25 when requesting an enlargement of
time to issue the citations. Accordingly, we vacate the district court's order
and remand the matter for further proceedings. 1
FACTS AND PROCEDURAL HISTORY
Appellant William Fink filed a post-probate will contest within
days of the statute of limitations expiring but failed to timely issue a
citation to Phillip Markowitz, respondent and executor of the estate, in
accordance with NRS 137.090. Fink filed a petition to enlarge time for
issuing citations, and the probate commissioner recommended the petition
be granted, concluding that (1) NRCP 6(b) and EDCR 2.25 granted the
court discretion to extend the time limit for issuing citations, and (2) Fink
demonstrated excusable neglect as required by both rules. Upon
Markowitz's objection, the district court dismissed the will contest,
explaining that NRCP 6(b) does not apply to statutory time limits. The
district court did not address whether EDCR 2.25 applied in this matter.
Fink now appeals.
'Pursuant to NRAP 34(0(1), we have determined that oral argument
is not warranted in this appeal.
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DISCUSSION
On appeal, Fink argues the district court erred by:
1) concluding his failure to timely issue citations as required under NRS
137.090 justified dismissing the will contest, (2) holding NRCP 6(b) did not
apply to the statutory time limits imposed by NRS Chapter 137, and
(3) failing to extend time under EDCR 2.25.
This court reviews a district court's interpretation of a statute
de novo. D.R. Horton, Inc. v. Eighth Judicial Dist. Court, 123 Nev. 468,
476, 168 P.3d 731, 737 (2007). Language in a statute must be given its
plain meaning if it is clear and unambiguous. Id. "A statute is ambiguous
if it is capable of being understood in two or more senses by reasonably
ell-informed persons." Id.
failure to issue citations in accord with NRS 137.090 constitutes grounds
or dismissal of a will contest
Fink argues his failure to timely issue citations pursuant to
NRS 137.090 does not require dismissal of his will contest. We disagree
and hold that a failure to timely issue citations deprives the court of
personal jurisdiction over adverse parties.
"After a will has been admitted to probate, any interested
person. . . may, at any time within 3 months after the order is entered
admitting the will to probate, contest the admission or the validity of the
ill" by filing a petition with the court. NRS 137.080. NRS 137.090 states
hat a citation "must be issued" "within the time allowed for filing the
Is etition." (Emphasis added.)
"'Must' is mandatory, as distinguished from the permissive
may?" In it Nev. State Eng'r Ruling No. 5823, 128 Nev., Adv. Op. 22, 277
l• .3d 449, 454 (2012). Therefore, the statute's clear and unambiguous
I anguage requires citations to be issued within three months after the will
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is admitted to probate. However, these statutes do not specify what
happens in the event one fails to timely issue citations.
A citation in a will contest is equivalent to a civil summons in
other civil matters. See In re Estate of Kordon, 137 P.3d 16, 18 (Wash.
2006). As defective service of process deprives a court of personal
jurisdiction, see Gassett v. Snappy Car Rental, 111 Nev. 1416, 1419, 906
P.2d 258, 261 (1995), superseded by rule on other grounds as stated in Fritz
Hansen A I S v. Eighth Judicial Dist. Court, 116 Nev. 650, 654-56, 6 P.3d
982, 984-85 (2000), so too does a failure to issue citations in a will contest,
see In re Estate of Kordon, 137 P.3d at 18 (holding that a "failure to issue a
citation deprives the court of personal jurisdiction over the party denied
process"); see also 95 C.J.S. Wills § 578 (2011) ("A court acquires personal
jurisdiction over an adverse party to a will contest by issuance of a citation.
A will contestant's failure to issue a citation on the decedent's personal
representative deprives the court of personal jurisdiction over the personal
representative."). Therefore, we hold that a failure to issue citations in
accord with NRS 137.090 constitutes proper grounds for dismissal.
However, just as Nevada district courts have discretion to
enlarge time for service of process upon a showing of good cause, see
Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 596, 245 P.3d
1198, 1200 (2010); see also NRCP 4(i), we see no reason to prohibit a district
court from enlarging time to issue citations if such discretion is permitted
under a procedural rule. Therefore, we now address Fink's claim that
NRCP 6(b) or EDCR 2.25 should have been applied to enlarge time to issue
the citations.
RCP 6(b) does not apply to statutory time limits
Fink contends NRCP 6(b) grants district courts the discretion to
enlarge time to issue citations under NRS 137.090. We disagree.
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This court reviews a district court's legal conclusions regarding
court rules de novo. Casey v. Wells Fargo Bank, N.A., 128 Nev., Adv. Op.
64, 290 P.3d 265, 267 (2012). "[T]he rules of statutory interpretation apply
to Nevada's Rules of Civil Procedure." Webb ex rel. Webb v. Clark Cty. Sch.
Dist., 125 Nev. 611, 618, 218 P.3d 1239, 1244 (2009). Furthermore, in
interpreting the language of a rule or statute, this court has repeatedly held
that "the expression of one thing is the exclusion of another." Galloway v.
Truesdell, 83 Nev. 13, 26, 422 P.2d 237, 246 (1967).
NRCP 6(b) provides, in relevant part, as follows:
When by these rules or by a notice given thereunder
or by order of court an act is required or allowed to
be done at or within a specified time, • . the court
for cause shown may at any time in its
discretion ... upon motion made after the
expiration of the specified period permit the act to
be done where the failure to act was the result of
excusable neglect, .
(Emphasis added.) Under the rule's plain language, a court has discretion
to enlarge time when an act is "required ... to be done at or within a
specified time" under "these rules or by a notice given thereunder or by
order of court." NRCP 6(b). The rule does not mention acts to be done
pursuant to statutes, and thus, we conclude NRCP 6(b) unambiguously
does not apply to statutory time limits 2 See Galloway, 83 Nev. at 26, 422
2Although NRS 155.180 states "the Nevada Rules of Civil
Procedure ... apply in matters of probate, when appropriate," we hold it
would be inappropriate to apply NRCP 6(b) to statutory time limits where
subsection (b) omits any reference to statutes, in marked contrast to
subsection (a). Cf. NRCP 6(a) ("In computing any period of time prescribed
or allowed by these rules, by the local rules of any district court, by order of
court, or by any applicable statute, the day of the act. . . shall not be
included." (emphasis added)). Furthermore, we conclude such a
construction best harmonizes NRS 155.180 with NRCP 6(a) and (b). See
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P.2d at 246; cf. Romaine v. State Farm Mitt. Auto. Ins. Co., 87 Nev. 257,
258-59 & n.2, 485 P.2d 102, 103 & n.2 (1971) (holding NRCP 6(a) applied to
a statute of limitations period under NRS 11.190 where the rule, by its
plain terms, applied to statutory time limits). Therefore, the district court
did not err when it held that NRCP 6(b) did not apply to NRS 137.090's
time limit.
The district court erred in failing to consider whether to extend time
ursuant to EDCR 2.25
Fink also argues that the district court should have considered
whether to extend time to issue citations pursuant to EDCR 2.25. We
agree.
EDCR 2.25 governs the form of a motion to extend time and
states "[al request for extension made after the expiration of the specified
period shall not be granted unless the moving party. . . demonstrates that
the failure to act was the result of excusable neglect." EDCR 2.25(a).
Further, EDCR 2.25 expressly applies to will contests. EDCR 2.01 ("The
rules in Part II govern the practice and procedure of. . . all contested
proceedings under Titles 12 and 13 of NRS.").
Unlike NRCP 6(b), EDCR 2.25 does not contain any implicit
limitation on the rule's application. Furthermore, Eighth District Court
...continued
State, Div. of Ins. v. State Farm Mitt. Auto. Ins. Co., 116 Nev. 290, 295, 995
P.2d 482, 486 (2000) (stating this court seeks to harmonize rules and
statutes). However, we note that NRS 155.180 may still apply NRCP 6(b)
to probate matters where the action in question is made pursuant to rule,
rather than statute.
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293, 295 (1963). In light of these principles, we conclude the district court
erred by failing to consider whether to extend the time to issue the citations
pursuant to EDCR 2.25. Whether extending time is appropriate based on
excusable neglect is a factual inquiry that the district court must
undertake. See Moseley v. Eighth Judicial Dist. Court, 124 Nev. 654, 668,
188 P.3d 1136, 1146 (2008).
CONCLUSION
We conclude that failing to issue citations in a will contest
deprives the court of personal jurisdiction over the parties denied process.
Furthermore, we hold that the district court properly concluded NRCP 6(b)
does not apply to statutory time limits. However, the district court erred in
failing to consider whether to enlarge the time to issue the citations
pursuant to EDCR 2.25. Accordingly, we vacate the order of the district
court and remand for further proceedings.
Parraguirre
We concur:
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