No. 66465 

FILED 

JAN 22 2016 

ACIE K. I MANT 

F E COU 

Y Lhfe 

C2-ba33_ (0) 1947A )4e. 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

JOHN PETER LEE, LTD., A NEVADA 

PROFESSIONAL CORPORATION 

D/B/A F&C COLLECTIONS, INC. A 

NEVADA CORPORATION; JOHN 

PETER LEE, AN INDIVIDUAL; PAUL 

C. RAY, CHTD., A NEVADA 

CORPORATION; AND PAUL RAY, AN 

INDIVIDUAL; 

Petitioners, 

vs. 

THE EIGHTH JUDICIAL DISTRICT 

COURT OF THE STATE OF NEVADA, 

IN AND FOR THE COUNTY OF 

CLARK; AND THE HONORABLE 

MARK R. DENTON, DISTRICT JUDGE, 

Respondents, 

and 

70 LIMITED PARTNERSHIP; AND 

TERTIA DVORCHAK, AS SPEICAL 

ADMINISTRATIX OF THE ESTATE OF 

THOMAS T. BEAM, DECEASED, 

Real Parties in Interest. 

ORDER DENYING PETITION FOR 

WRIT OF MANDAMUS OR PROHIBITION 

This is an original petition for a writ of mandamus or 

prohibition challenging a district court's order denying a motion to dismiss 

a legal malpractice action on statute of limitations grounds. Eighth 

Judicial District Court, Clark County; Mark R. Denton, Judge. 

Real parties in interest 70 Limited Partnership and Tertia 

Dvorchak, as special Administratrix of the Estate of Thomas T. Beam, 

deceased (collectively, 70 Ltd.), filed a legal malpractice claim against 

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petitioners John Peter Lee, Ltd.; John Peter Lee; Paul C. Ray, Chtd.; and 

Paul C. Ray (collectively, JPLL), alleging that JPLL breached the 

standard of care during its representation of 70 Ltd. in an underlying 

airspace takings case. JPLL moved to dismiss the complaint pursuant to 

NRS 11.207(1) and the continuous representation rule. The district court 

denied JPLL's motion.' 

JPLL argues in its writ petition that (1) this court adopted the 

continuous representation rule in Moon v. McDonald, Carano & Wilson 

LLP, 129 Nev., Adv. Op. 56, 306 P.3d 406 (2013); (2) the district court 

improperly found that the limitations period was tolled until the 

underlying matter was completely resolved; and (3) the district court 

abused its discretion by failing to grant its motion to dismiss because of 

the expiration of the two-year period of limitations. We conclude that 

these arguments lack merit and therefore deny the petition. 

Writ relief is appropriate 

"A writ of mandamus is available to compel the performance 

of an act that the law requires as a duty resulting from an office, trust, or 

station or to control an arbitrary or capricious exercise of discretion." 

Humphries v. Eighth Judicial Dist. Court, 129 Nev., Adv. Op. 85, 312 P.3d 

484, 486 (2013) (quoting Int'l Game Tech., Inc. v. Second Judicial Dist. 

Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008)); see also NRS 34.160. 

Generally, "[w]rit relief is not available. . . when an adequate and speedy 

legal remedy exists." Intl Game Tech., Inc., 124 Nev. at 197, 179 P.3d at 

558. "While an appeal generally constitutes an adequate and speedy 

"The facts and procedural history are known to the parties and will 

not be recounted further except as is necessary for our disposition. 

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remedy precluding writ relief, we have, nonetheless, exercised our 

discretion to intervene 'under circumstances of urgency or strong 

necessity, or when an important issue of law needs clarification and sound 

judicial economy and administration favor the granting of the petition." 

Cote H. v. Eighth Judicial Dist. Court, 124 Nev. 36, 39, 175 P.3d 906, 908 

(2008) (footnote omitted) (quoting State v. Second Judicial Dist. Court, 118 

Nev. 609, 614, 55 P.3d 420, 423 (2002)). 

We conclude that resolving this writ petition may affect the 

course of the litigation, thus promoting sound judicial economy and 

administration. Moreover, this petition raises important legal issues in 

need of clarification, which could resolve or mitigate related litigation. 

Accordingly, we exercise our discretion to entertain JPLL's petition for 

mandamus. 2 

The district court properly concluded that the statute of limitations period 

was tolled until the underlying matter was completely resolved despite the 

previous termination of the attorney-client relationship 

NRS 11.207(1) sets forth the statute of limitations for a 

professional malpractice claim: "An action against an attorney . . . to 

recover damages for malpractice . . . must be commenced . . . within 2 

21n the alternative, JPLL seeks a writ of prohibition. A writ of 

prohibition is appropriate when a district court acts "without or in excess 

of [its] jurisdiction." NRS 34.320; see also Club Vista Fin. Servs., LLC v. 

Eighth Judicial Dist. Court, 128 Nev., Adv. Op. 21, 276 P.3d 246, 249 

(2012). A writ of prohibition is improper in this case because the district 

court had jurisdiction to hear and determine the outcome of the motion to 

dismiss. See Goicoechea v. Fourth Judicial Dist. Court, 96 Nev. 287, 289, 

607 P.2d 1140, 1141 (1980) (stating that we will not issue a writ of 

prohibition "if the court sought to be restrained had jurisdiction to hear 

and determine the matter under consideration"). 

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years after the plaintiff discovers or . . . should have discovered the 

material facts which constitute the cause of action . . ." A professional 

malpractice claim may be subject to the litigation malpractice tolling rule, 

which provides that "damages do not begin to accrue until the underlying 

legal action has been resolved." Hewitt v. Allen, 118 Nev. 216, 221, 43 

P.3d 345, 348 (2002). The rule only applies "[i]n the context of litigation 

malpractice, that is, legal malpractice committed in the representation of 

a party to a lawsuit." Id. The district court applied the litigation 

malpractice tolling rule and determined that the statute of limitations had 

not expired on 70 Ltd.'s legal malpractice claim. "We review the district 

court's legal conclusions de novo." Buzz Stew, LLC v. City of N. Las Vegas, 

124 Nev. 224, 228, 181 P.3d 670, 672 (2008). 

JPLL argues that the district court disregarded recent Nevada 

caselaw regarding the continuous representation rule. JPLL contends 

that had the continuous representation rule been applied, the statute of 

limitations would have run in March 2013 and the district court 

improperly tolled the limitations period. 

The continuous representation rule 

According to the continuous representation rule, a legal 

malpractice cause of action begins to accrue when "the attorney's 

representation concerning a particular transaction is terminated." 3 

Ronald E. Mallen & Jeffrey M. Smith, Legal Malpractice § 23:13, at 508 

(2014) (internal quotation marks omitted). The rule requires: "(1) ongoing 

representation by the lawyer; (2) on the same subject matter; (3) that is 

continuous." Id. at 509 (internal quotation marks omitted). JPLL asserts 

that this court adopted the continuous representation rule in Moon v. 

McDonald, Carano & Wilson LLP, 129 Nev., Adv. Op. 56, 306 P.3d 406 

(2013). We disagree. 

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In Moon, a client brought a legal malpractice action against 

his attorney stemming from the attorney's representation of the client as a 

creditor in a bankruptcy proceeding. Id. at 407-08. We determined that 

the litigation malpractice tolling rule did not apply because the 

bankruptcy action was not an adversarial proceeding. Id. at 410. Thus, 

we concluded that the district court appropriately granted the attorney's 

motion to dismiss. Id. The language JPLL relies upon comes at the end of 

Moon: "Appellants' professional malpractice claim would therefore not be 

tolled by the litigation malpractice tolling rule after February 2003 [the 

date representation ended], even if this court were to conclude that the 

bankruptcy proceeding in this case qualified as litigation." Id. Because 

our determination in Moon was based on the conclusion that nonadversarial parts of a bankruptcy proceeding do not constitute litigation, 

our observation regarding the continuous representation rule was mere 

dicta. See Dictum, Black's Law Dictionary (6th ed. 1990) (defining 

"[d]ictum" as "an observation or remark. . . not necessarily involved in the 

case or essential to its determination"). 

Alternatively, JPLL argues that should this court determine 

that the continuous representation rule was not adopted in Moon, we 

should do so now. We decline to do so. The continuous representation rule 

and the litigation malpractice tolling rule arrive at similar results. If the 

attorney errs and the client continues to retain the attorney after the 

error, the statute of limitations starts to run at the same time under either 

rule because the case and the attorney-client relationship end 

simultaneously. On the other hand, if the attorney errs and the client 

obtains new counsel, under either rule, the former attorney must sit by 

and hope that the client's new legal representative attempts to remedy the 

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error. Further, under the continuous representation rule, if an attorney 

has been removed from the case prior to its conclusion, estimating 

damages from the alleged malpractice is difficult. In some jurisdictions 

that recognize the continuous representation rule, courts can stay the 

legal malpractice action until the underlying case concludes or the parties 

can enter into a tolling agreement. See, e.g., Beal Bank, SSB u. Arter & 

Hadden, LLP, 167 P.3d 666, 673 (Cal. 2007) (emphasizing that "trial 

courts have inherent authority to stay malpractice suits, holding them in 

abeyance pending resolution of underlying litigation" (internal quotation 

marks omitted)), VanSickle u. Kohout, 599 S.E.2d 856, 861 (W. Va. 2004) 

(indicating that attorneys can "enter into tolling agreements. . . where the 

amount of damages may yet be uncertain" and courts can stay malpractice 

actions "in order to await the conclusion of some other proceeding that 

might establish a client's damages"); see also Mallen & Smith, supra, § 

23:11 at 438. Accordingly, under either rule the underlying litigation 

concludes before the legal malpractice case begins. 

Because the two rules operate in a like manner, we decline to 

adopt the continuous representation rule in the litigation context or to 

revisit our jurisprudence on the litigation malpractice tolling rule. Thus, 

we conclude that the district court did not err in concluding that the 

statute of limitations period was tolled until the underlying matter was 

resolved based on the litigation malpractice tolling rule. 

The district court did not abuse its discretion in denying JPLL's motion to 

dismiss 

As the district court found, the underlying litigation was 

resolved when the settlement was approved on October 15, 2013. Because 

NRS 11.207(1) provides that the statute of limitations for a legal 

malpractice claim shall be commenced within two years, 70 Ltd. had until 

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October 15, 2015, to file its malpractice complaint against JPLL, which it 

did on November 7, 2013. Therefore, we conclude that 70 Ltd.'s 

malpractice complaint was timely filed, and the district court did not 

abuse its discretion in denying JPLL's motion to dismiss. 

Accordingly, we 

ORDER the petition DE 

Parraguirre 

/it u,Ce-1.3; , J. 

Hardesty 

PICKERING, J., concurring: 

I concur in the order denying writ relief but would do so on the 

basis the petition does not qualify for extraordinary writ relief, without 

reaching the merits of the claimed legal error. Compare State ex rel. Dep't 

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J. 

of Transp. v. Thompson, 99 Nev. 358, 361-62, 662 P.2d 1338 1340 (1983) 

(mandamus normally does not lie to review a claim of error in the district 

court's denial of a motion to dismiss or for summary judgment), with Int? 

Union, United Auto., Aerospace & Agr. Implement Workers of Am. (UAW) 

v. Nat'l Caucus of Labor Committees, 525 F.2d 323, 326 (2d Cir. 1975) 

(declining to reach the merits in denying a petition for extraordinary writ 

relief as improperly seeking interlocutory review of asserted legal error); 

see generally Double Diamond v. Second Judicial Dist. Ct., 131 Nev., Adv. 

Op. 57, 354 P.3d 641, 646 (2015) (Pickering, J., concurring) 

cc: Hon. Mark R. Denton, District Judge 

Santoro Whitmire 

John Peter Lee Ltd. 

Lipson Neilson Cole Seltzer & Garin, P.C. 

Olson, Cannon, Gormley, Angulo & Stoberski 

Weinberg, Wheeler, Hudgins, Gunn & Dial, LLC 

Eighth District Court Clerk 

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