Opinion
No. 67903
06-01-2016
RENO DODGE SALES, INC., A NEVADA CORPORATION; AND DONALD E. WEIR, Appellants, v. THE STATE OF NEVADA DEPARTMENT OF MOTOR VEHICLES, AN ADMISTRATIVE AGENCY OF THE STATE OF NEVADA, Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a district court order granting Respondent's Motion to Dismiss Appellant's Petition for Judicial Review. Second Judicial District Court, Washoe County; Patrick Flanagan, Judge.
On or about March 25, 2014, the Department of Motor Vehicles served Reno Dodge with a Notice of Violation asserting three separate violations of NRS 482.554, which prohibits deceptive trade practices. Prior to the administrative hearing, Reno Dodge filed a Motion to Dismiss the violation, asserting the Department does not have jurisdiction to issue the violation under the section cited, NRS 482.554(2)(c). Reno Dodge filed a Petition for Judicial Review with the district court after the Administrative Law Judge denied its Motion to Dismiss the Notice of Violation. In its Petition, Reno Dodge again argued the Department does not have jurisdiction to proceed with the Notice of Violation in this matter. The Department filed a Motion to Dismiss the Petition for Judicial Review arguing the denial of the Motion to Dismiss below was not a final decision. Reno Dodge argued the Petition for Judicial Review was appropriate because, although not a final order, the denial of its Motion to Dismiss was an appealable procedural order pursuant to NRS 233B.130(1) because review of the final decision would not provide Reno Dodge with an adequate remedy. The district court granted the Department's Motion to Dismiss, holding the Petition was not justiciable and Reno Dodge's arguments must be determined by the administrative agency first. The district court noted that it was not sure Reno Dodge demonstrated there was a jurisdictional question in this matter and, while jurisdiction was in dispute, it was not clear that there was a jurisdictional defect. This appeal followed.
We do not recount the facts except as necessary to our disposition.
We review a district court's dismissal of a petition for judicial review for lack of jurisdiction de novo. Benson v. State Engineer, 131 Nev. ___, ___, 358 P.3d 221, 224 (2015) (reh'g denied). We also review a district court's decision regarding subject matter jurisdiction de novo. Am. First Fed. Credit Union v. Soro, 131 Nev. ___, ___, 359 P.3d 105, 106 (2015) (citing Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009)).
See also Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008) (we review the district court's granting a motion to dismiss de novo); Alcantara v. Wal-Mart Stores, Inc., 130 Nev. ___, ___, 321 P.3d 912, 914 (2014) (same); Zohar v. Zbiegien, 130 Nev. ___, ___, 334 P.3d 402, 404 (2014) (same).
The question before us is whether the District Court erred in granting the Motion to Dismiss on the grounds that review of the final decision would provide Reno Dodge an adequate remedy. As noted, NRS 233B.130(1) allows a party to seek judicial review of a preliminary, procedural, or intermediate ruling by an administrative agency if "review of the final decision of the agency would not provide an adequate remedy." The Nevada Supreme Court has held that while normally one must first exhaust the administrative remedies available, that is not required if the agency clearly lacks jurisdiction. Benson, 131 Nev. at ___, 358 P.3d at 225. The Nevada Supreme Court has also explained that if initiation of the administrative proceedings would be futile, exhausting the administrative remedies is not required. Id. (citing State, Nev. Dep't of Taxation v. Scotsman Mfg. Co., 109 Nev. 252, 255, 849 P.2d 317, 319 (1993)). The court went on to note that "when the facts of a particular case prove that the agency is statutorily precluded from granting a party any relief at all, administrative proceedings are futile. Id. However, the court also stated, "we do not consider administrative proceedings to be futile solely because the statute prevents the petitioner from receiving his or her ideal remedy through administrative proceedings." Id. at 226.
In this case, Reno Dodge alleges it does not have an adequate remedy if it is forced to proceed with the administrative hearing because the Department does not have jurisdiction and therefore the administrative proceedings would be futile. However, Reno Dodge asserts the Department does not have jurisdiction to issue the Notice of Violation under NRS 482.554(2)(c) because the alleged conduct did not arise out of a "consumer sales transaction." This does not present a jurisdictional question.
"The jurisdiction of a court depends upon its right to decide a case, and never upon the merits of its decision." State v. Second Judicial Dist. Ct. of Nevada, in and for Washoe Cty., 48 Nev. 198, 228 P. 617, 618 (1924) (citing Holbrook v. James H. Prichard Motor Co., 27 Ga. App. 480, 109 S.E. 164 (1921)); see also Luc v. Oceanic S. S. Co., 84 Nev. 576, 445 P.2d 870 (1968) (stating whether the court erred in striking a complaint goes to the merits of the case and not to the court's jurisdiction to act). Subject matter jurisdiction is the court's authority to hear a particular type of case; this is different from the issue of whether the essential elements of a claim are satisfied. See Arbaugh v. Y&H Corp., 546 U.S. 500, 514 (2006) (internal quotations and citations omitted).
Instructively, the United States Supreme Court has stated, "On the subject-matter jurisdiction/ingredient-of-claim-for-relief dichotomy, this Court and others have been less than meticulous. Subject matter jurisdiction . . . is sometimes erroneously conflated with a plaintiff's need and ability to prove the defendant bound by the federal law asserted as the predicate for relief—a merits-related determination. Judicial opinions . . . often obscure the issue by stating that the court is dismissing 'for lack of jurisdiction' when some threshold fact has not been established, without explicitly considering whether the dismissal should be for lack of subject matter jurisdiction or for failure to state a claim." Id.at 511 (internal quotations and citations omitted).
Whether Reno Dodge's commercial violated NRS 482.554(2)(c) goes to the elements of the claim, not to the Department's jurisdiction to issue notices of violations and impose fines. In essence, Reno Dodge is arguing that the allegations are not true, not that the allegations are being heard in the wrong forum. Its argument goes to the merits of the allegations, not to whether the Department has the power to determine the merits.
NRS 482.554(1) gives the Department authority to issue the subject fine; it states, in pertinent part, "The Department may impose an administrative fine . . . against any person who engages in a deceptive trade practice." Thus, pursuant to NRS 482.554, the Department has jurisdiction to issues fines against any person who engages in a deceptive trade practice, as defined by that statute. The Department's jurisdictional authority to issue fines for deceptive trade practices involving motor vehicles is unrelated to whether, in this case, Reno Dodge's conduct constituted a deceptive trade practice as defined by NRS 482.554. Therefore, Reno Dodge's argument - that it does not have an adequate remedy because the Department lacks jurisdiction - is erroneous because the Department has the power and authority to issue fines like the one here. Consequently, this does not present a jurisdictional issue and Reno Dodge has an adequate remedy.
We are similarly un-persuaded by Reno Dodge's argument that the administrative law judge found that the "alleged violations did not arise from a consumer sales transaction, involving the purchase and sale or lease of a motor vehicle, but rather from an advertisement." This statement, read in context, appears to be the administrative law judge simply reciting Reno Dodge's argument, followed by his statement that he disagrees with said position. Even assuming arguendo that the administrative law judge made a finding that the alleged violation did not arise from a consumer sales transaction, again, this is not a jurisdictional issue, it is a factual question that goes to the merits of the violation and should be determined in the administrative proceeding; at the administrative hearing the judge could then rule against the DMV, concluding it failed to prove that element of the statute. --------
Within its section entitled "Requiring Reno Dodge to await a final decision from the Department will not provide an adequate remedy" Reno Dodge also cites a Montana Supreme Court case (and references NRS 233B.121, which requires that notice be given, in a footnote) for the proposition that a party does not have an adequate remedy when the record does not contain the specific rule or statute allegedly violated and where it appears, cumulatively, that the agency failed to afford fundamental fairness and due process. We note that Reno Dodge does not cogently argue this point in its briefing and we need not consider it. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (we need not consider claims not cogently argued nor supported by relevant authority). However, considering this argument on its merits, we disagree with Reno Dodge.
NRS 233B.121(2)(b)-(c) requires DMV to give notice that includes the legal authority and jurisdiction under which the hearing is to be held and that references the particular sections of the statutes and regulations involved. Reno Dodge argues the administrative law judge held as a matter of law that NRS 482.554(2)(d) constituted the legal basis upon which the DMV had jurisdiction, but the notice here failed to cite NRS 482.554(2)(d) with any particularity as required by NRS 233B.121(2)(b)-(c), causing a jurisdictional defect. Presumably Reno Dodge argues the notice "failed to reference NRS 482.554(2)(d) with any particularity" because it was not underlined, while NRS 482.554(2)(c) was underlined, but this is not the requirement. NRS 233B.121(2)(c) states the notice must include a "reference to the particular sections of the statute and regulations involved." It does not state the notice must cite the sections of the statute with particularity as Reno Dodge contends.
The Nevada Supreme Court has stated "NRS 233B.121 requires notice in a contested case, to be 'reasonable' and include a 'short and plain statement of the matters asserted.' Although there are differing views, the modern trend in administrative pleadings is that due process requirements of notice are satisfied where the parties are sufficiently apprised of the nature of the proceedings so that there is no unfair surprise. The crucial element is adequate opportunity to prepare." Nevada State Apprenticeship Council v. Joint Apprenticeship & Training Comm. for Elec. Indus., 94 Nev. 763, 765, 587 P.2d 1315, 1316-17 (1978).
Here, the notice referenced the particular sections of the statute and regulations involved; the notice stated Reno Dodge allegedly violated NRS 482.554 and then proceeded to cite the sections of statute in their entirety. The notice also cited other relevant NRS sections defining deceptive trade practices and the relevant NAC sections. Reno Dodge knew its advertisement was being challenged as was reasonably on notice that the advertisement was an alleged violation of NRS 482.554 as a whole. Additionally, Reno Dodge has not suffered any prejudice because it has not been prevented from introducing evidence due to inadequate notice. Thus, the notice was proper as it included a "reference to the particular sections of the statute and regulations involved" and Reno Dodge's due process rights have not been infringed.
Moreover, whether NRS 482.554(2)(d) was properly noticed is not the relevant inquiry in this case. DMV issued its notice of violation alleging Reno Dodge violated NRS 482.554. Even assuming arguendo that the notice only referenced the particular subsection 2(c) of that section of the statute, that still does not create a jurisdictional defect in this case. Reno Dodge does not contest that DMV properly noticed a violation relating to NRS 482.554(2)(c), it only argues its conduct does not violate NRS 482.554(2)(c), which, again, does not create a jurisdictional question, it goes to the merits of the claim.
Even if Reno Dodge was correct and this matter presented a jurisdictional question, which it does not, the underlying jurisdictional question is irrelevant because Reno Dodge still has an adequate remedy pursuant to Nevada law.
The right to petition for judicial review of an administrative decision constitutes an adequate remedy. Howell v. Ricci, 124 Nev. 1222, 1229, 197 P.3d 1044, 1049 (2008) (citing Kay v. Nunez, 122 Nev. 1100, 1104-05, 146 P.3d 801, 805 (2006). Further, the right to appeal is generally considered an adequate remedy. Pan v. Eight Judicial Dist. Ct., 120 Nev. 222, 224, 88 P.3d 840, 841 (2004). As noted above, administrative proceedings are not futile solely because the party is likely to lose, or might not receive its ideal remedy. Benson, 131 Nev. at ___, 358 P.3d at 226. Moreover, a remedy does not fail to be adequate just because pursuing it through the ordinary course of law is more time consuming. See Cty. of Washoe v. City of Reno, 77 Nev. 152, 156, 360 P.2d 602, 603 (1961) (citing Hubbard v. Justice's Court, 5 Cal.App. 90 (1907)). Additionally, NRS 233B.135(3)(b) states the district court may remand, affirm, or set aside the final agency decision if the decision is in excess of the statutory authority of the agency.
Assuming arguendo that the administrative law judge finds the Department's fine in this case is appropriate and Reno Dodge is then an aggrieved party (pursuant to NRS 233B.130(1)), Reno Dodge has an adequate remedy by petitioning for judicial review from the final decision, and then appealing the petition for judicial review should it be denied. This court cannot say the administrative proceedings in this case are futile simply because exhausting the administrative process is not Reno Dodge's ideal remedy or because the administrative process will take more time.
We therefore,
ORDER the judgment of the district court AFFIRMED.
/s/_________, C.J.
Gibbons
/s/_________, J.
Tao
/s/_________, J.
Silver cc: Hon. Patrick Flanagan, District Judge
Guild, Gallagher & Fuller, Ltd.
Attorney General/Carson City
Washoe District Court Clerk