Kern, Esq. v. The Eighth Jud. Dist. Ct. ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
ROBERT KERN, No. 83636
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
COURT OF THE STATE OF NEVADA,
FILED
IN AND FOR THE COUNTY OF MAY 1 6 2022
CLARK; AND THE HONORABLE
NANCY L. ALLF, DISTRICT JUDGE,
Res e ondents.
ORDER GRANTING PETITION
This original petition for a writ of mandamus challenges a
district order sanctioning petitioner for attorney misconduct. The
underlying case is a business dispute between co-owners of a company. One
co-owner filed an emergency motion seeking access to a company warehouse
and requested a same-day hearing. Petitioner Robert Kern, counsel for the
opposing party, filed a brief opposition less than an hour after the motion
was filed. In addition to substantively opposing the emergency motion,
Kern explained that he could not attend a same-day hearing as he had a
previously scheduled moot argument with eight attorneys to prepare for
oral argument before this court in a different case the following day. Kern
was concurrently communicating this information to opposing counsel via
email. At some point, district court staff also attempted to contact Kern
regarding the hearing but was told that Kern was unavailable.
The district court scheduled a hearing for that same afternoon.
Kern did not attend. The district court continued the hearing but
1The petition alternatively requests a writ of prohibition. As we grant
relief based on grounds other than the district court exceeding its
jurisdiction, we need not address the alternative request. See NRS 34.320
(defining writs of prohibition).
sanctioned Kern for his failure to appear after providing Kern with a brief
opportunity to explain his earlier absence. In its order, the district court
found that "Mr. Kern emailed the Court and counsel 'protesting any
hearing being held without his presence," and that its "staff attempted to
contact Mr. Kern prior to the hearing, but was informed that Mr. Kern was
unavailable." It further found that "failure to appear at the June 10,•2020
hearing or respond to the Court's staff was unexcused, inappropriate, and
demeaned the Court." Based on these findings, and its "inherent and broad
discretion to impose sanctions for professional misconduct," the district
court ordered that Kern "make a mandatory charitable donation in the
amount of $100." Kern now seeks a writ of mandamus directing the district
court to vacate the sanctions order.2
Kern correctly notes that mandamus is the appropriate way for
a sanctioned attorney to seek review of a sanctions order, see Watson
Rounds, P.C. v. Eighth Judicial Dist. Court, 131 Nev. 783, 786-87, 358 P.3d
228, 231 (2015) (Sanctioned attorneys do not have standing to appeal
because they are not parties in the underlying action; therefore,
extraordinary writs are a proper avenue for attorneys to seek review of
sanctions."), and argues that our extraordinary intervention is warranted
because no misconduct justified the sanctions order. Where, as here, the
district court is entrusted with discretion on an issue, Kern must
demonstrate that "the law [was] overridden or misapplied, or [that] the
judgment exercised is manifestly unreasonable or the result of partiality,
prejudice, bias or ill will," to be entitled to writ relief. Walker v. Second
2This court dismissed Kern's previous challenge to the sanctions order
in an appeal from the final district court judgment for a lack of jurisdiction.
See Muney v. Arnould, Nos. 81354, 81355, 81356, 2021 WL 4238755 (Nev.
Sept. 16, 2021) (Order Dismissing Appeals).
2
Judicial Dist. Court, 136 Nev. 678, 680-81, 476 P.3d 1194, 1197 (2020)
(quoting State v. Eighth Judicial Dist. Court, 127 Nev. 927, 932, 267 P.3d
777, 780 (2011)); see also Young v. Johnny Ribeiro Bldg., Inc., 106 Nev. 88,
92, 787 P.2d 777, 779 (1990) (recognizing that a district court may, in its
discretion, sanction attorneys under its inherent power to control attorney
misconduct).
Based on the record before us, we agree with Kern and conclude
that mandamus relief is warranted because the district court's sanctions
order was manifestly unreasonable. Indeed, Kern timely notified the
district court and opposing counsel of his significant prior commitments and
provided a substantive opposition to the emergency motion before the court
scheduled the hearing.3 The respondent district court cites to Wyssbrod v.
Wittjen, 798 So. 2d 352, 358 (Miss. 2001), for its apparent proposition that
an attorney's nonappearance alone is sufficient to warrant sanctions.4
However, Wyssbrod is distinguishable. The attorney in that case had
advance notice about the status conference for which he failed to appear and
also had advance notice that "the court would not recognize as valid his
explanation for not attending the hearing." 798 So. 2d at 357-60.
And to the extent the district court based its sanctions on Kern's
alleged instructions to his staff to rebuff the district court's staff s attempts
3We also note that EDCR 2.26 provides that "Din no event may the
notice of the hearing of a motion be shortened to less than 1 day."
4The respondent district court also relies on NRCP 16(f)(1)(A), which
provides that district courts may sanction attorneys for failure "to appear
at a scheduling or other pretrial conference," as an example of when a court
may impose sanctions for an attorney's nonappearance. But that rule only
applies to "scheduling or other pretrial conference[s]." Id. And,
presumably, the parties would have advance notice of any such conferences,
which would support sanctions for nonappearance.
3
to reach Kern, the record contains no evidence supporting this finding. See
Valley Health Sys., LLC v. Est. of Doe, 134 Nev. 634, 641, 427 P.3d 1021,
1028 (2018) (reviewing district court findings supporting a sanctions order
for substantial evidence). Based on the foregoing, we conclude that the
district court's sanctions order is manifestly unreasonable.5 Accordingly,
we
ORDER the petition GRANTED AND DIRECT THE CLERK
OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the
district court to vacate its June 12, 2020, order imposing sanctions against
petitioner.6
litamt,„
J.
Herndon
GIBBONS, Sr. J., concurring:
I concur in the result only.
Gibbons
•oerL , Sr. J.
cc: Hon. Nancy L. Allf, District Judge
Kern Law, Ltd.
Attorney General/Las Vegas
Eighth District Court Clerk
5Because we grant relief on this ground, we need not address Kern's
additional arguments about the standard of review, due process, and the
respondent district court's alleged NRAP 28(e)(1) violation.
6The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
4