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Remittitur, Lawyers, and Malpractice, Oh My!: Branch Banking v. Gerrard

Unsurprisingly, lawyers really hate it when they get sued.  But, fortunately for one lawyer, the NVSC recently ruled that his former client’s legal malpractice claim against him was time-barred In Branch Banking & Trust Company v. Gerard, 134 Nev., Adv. Op. 106, 432 P.3d 736 (Nev. 2018).  In Nevada, when your case involves an appeal, the two year statute of limitations to sue your lawyer for legal malpractice in handling the case does not run until your “damages are no longer contingent on the outcome of the appeal.”  Branch Banking, 432 P.3d at 738.  The question answered by the NVSC in Branch Banking is when that moment occurs.

BRANCH BANKING WAS APPARENTLY UNHAPPY WITH ITS FORMER LAWYER

 In Branch Banking, Branch Banking & Trust hired attorney Gerrard to represent it in litigation.  432 P.3d at 738.  The lawsuit wound up on appeal with the NVSC, and Branch Banking ultimately lost.  Id.  Branch Banking filed a writ of certiorari to the United States Supreme Court, and the United States Supreme Court denied certiorari on October 6, 2014. Id

While the writ of certiorari was pending, the Nevada Supreme Court issued remittitur in March 2014.  Id. Remittitur means that “the appeal [has] conclude[d] and appellate jurisdiction [has] end[ed].”  Id. at 739.

Sometime while all of this was happening, Branch Banking and Gerrard fell out of love.  I don’t know why.  It’s not in the opinion.  All I know is that Branch Banking ultimately wound up suing Gerrard. 

Branch Banking filed its legal malpractice lawsuit against Gerrard on October 5, 2016, just under two years from the date SCOTUS denied the writ of certiorari, and two years and seven months after the NVSC issued remittitur.  Id. at 738.  Gerrard argued that the bank’s lawsuit was time-barred because it was filed seven months after the two year anniversary of the NVSC’s issuance of remittitur.  Id. The NVSC agreed. 

THE LIMITATION PERIOD TO SUE THE LAWYER RUNS FROM THE DATE OF REMITTITUR UNLESS REMITTITUR IS STAYED

According to the NVSC, the purpose of statutes of limitation are to give people some certainty as to when they can no longer be sued.  Id. at 740.  This certainty would not arise if statute of limitations were tolled pending writs of certiorari to SCOTUS.  Id. These writs do not have to be filed until 90 days (3 months) after the opinion or order, and can take months to resolve.  Id. Considering that the majority of these are largely denied, the uncertainty associated with tolling the period during this time is great. 

In contrast, remittitur is a set date.  Id. at 740.  It issues 25 days after the final decision by the NVSC.  NRAP 41(a)(1). 

The NVSC further noted that remittitur can be stayed pending a writ of certiorari to SCOTUS under NRAP 41(b)(3).  Branch Banking, 432 P.3d at 740-41.  To stay remittitur, you simply have to file a motion to stay while the writ of certiorari is pending.  NRAP 41(b).  Remittitur will be stayed for 120 days (4 months).  You can extend the period of time for good cause (i.e., “SCOTUS hasn’t rejected or accepted our writ yet”).  See id. The 120 day period will be indefinitely extended if your writ is accepted, and remittitur will remain stayed until SCOTUS files its disposition of your appeal.  See id.

Branch Banking and Trust never sought to stay remittitur.  432 P.3d at 741.  Once remittitur issued, the limitations period began running for its lawsuit against its former attorney.  Because Branch Banking and Trust filed its legal malpractice action outside of the two-year limitation period, the district court properly dismissed its action.  Id

AND THE MORAL OF THIS STORY IS…

Don’t sue your lawyer.   

Just kidding. Sort of. 

But if you are going to sue your lawyer, pay attention to when that clock starts ticking on the limitations period.  

You Won, Now What? Time Periods for Litigating Upon Remand

In Nevada, a case must be dismissed if it is not brought to trial within five years from the date it was filed.  NRCP 41(e).  Although dismissal is mandatory, the district court has discretion to dismiss with or without prejudice.  See NRCP 41(e); see also Harvey’s Wagon Wheel, Inc. v. Van Blitter, 959 F.2d 153, 156 (9th Cir. 1992).

There is a different timeline to bring a case to trial after an appeal.  When an appeal is taken, and the matter is remanded, the plaintiff has three years to bring the action to trial.  NRCP 41(e).

Three Years from What Date?

The three-year date runs from the date that remittitur is issued, not the date of the order of remand.  NRCP 41(e).

If a stay is in effect pending the appeal, the three-year deadline will not commence if the stay prevents the parties from immediately bringing the action back into active litigation before the district court upon remittitur.  Duke v. Simon, 124 Nev. 1464, 238 P.3d 808 (2008).  For example, in Duke, the appellant won and the matter was remanded.  However, the appellant had obtained a stay pending appeal of a set amount of time.  That stay wound up being in effect 280 days after remittitur was issued.  Once the stay was lifted, the clock on the three-year deadline began ticking.  Id.

Three Years from an Appeal vs. Three Years from a Writ

 A party who successfully takes a matter up on a writ does not get an extra three years to bring the action to trial under Rule 41(e).   The three-year deadline only applies to appeals, not writ petitions.  Monroe v. Columbia Sunrise Hosp. & Med. Ctr., 123 Nev. 96, 102, 158, P.3d 1008, 1011-12 (2007).  NRCP 41(e)’s five-year deadline applies when the matter is taken up on a writ.  Id.   Keep in mind that appellate review of a writ petition can take up to one year (or more).  Additional reasons why you may want to just wait to appeal are listed HERE.

Bring to Trial v. Deciding an Issue

Finally, the Nevada Supreme Court has made it clear that when Rule 41(e) says “trial” it means “TRIAL.”  Sort of.  It means all claims are resolved. Even if one claim is tried or litigated via dispositive motion work within the three-year period, the other claims must still be dismissed.  Allyn v. McDonald, 117 Nev. 907, 910, 34 P.3d 584, 586 (2001).

The Nevada Supreme Court has also made it clear that it will uphold dismissals even if there are equitable circumstances which would otherwise warrant reversal of the district court’s dismissal.  Id.  Rule 41(e) dismissals are mandatory, not discretionary.  The plaintiff, not the district court, is the one who filed the case and the one who assumes the responsibility to ensure that all crucial dates are met.  Id.  

The moral of this story is to remember your deadline for trying the case.  If you went up on appeal, it is three years from the date of remittitur.  If you went up on a writ, you had better get it done five years from the date of filing.