Until now, Nevada applied the law of the case doctrine only to appellate cases. The Supreme Court has now applied it to matters pending in district court, creating potential difficulties for clients approaching trial.
Background
Litchfield v. Tucson Ridge Homeowners Association concerned two homeowners’ claims against their HOA. The HOA moved to dismiss, citing a Nevada statute it asserted required the homeowners to first mediate before they could file a complaint. The district court denied the motion. The judge later retired so the case was reassigned to a different judge. The HOA then moved for summary judgment on the same basis as its motion to dismiss. The second judge concluded the court was not bound by the prior decision, decided that the statute applied, and granted summary judgment.
The Supreme Court concluded the law of the case doctrine should apply at the district court level even before final judgment is entered. Accordingly, “Judges should be reticent to overrule previous decisions by another judge absent compelling circumstances.” Compelling “circumstances include where (1) subsequent proceedings produce substantially new or different evidence, (2) there has been an intervening change in controlling law, or (3) the prior decision was clearly erroneous and would result in manifest injustice if enforced.” The circumstances in this case did not satisfy any of those three conditions, so the order granting summary judgment was reversed.
Analysis
Litchfield might be concerning. NRCP 54(b) states an order “that adjudicates fewer than all the claims or the rights and liabilities of fewer than all the parties does not end the action as to any of the claims or parties and may be revised at any time before the entry of a judgment adjudicating all the claims and all the parties’ rights and liabilities.” Stated another way, the district court can revise its rulings at any time until final judgment is entered. Litchfield concluded NRCP 54(b)’s language must be applied through the three conditions it provided.
For practical purposes, Litchfield might create problems for orders in limine decided before trial, which are preliminary and subject to revision at trial. Litchfield also might create further difficulties for litigants who add trial or appellate counsel late in a case.