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Whipple Supreme Court Motion

Whipple fought one of his disciplinary cases all the way to the state Supreme Court but lost.

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280 views42 pages

Whipple Supreme Court Motion

Whipple fought one of his disciplinary cases all the way to the state Supreme Court but lost.

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Las Vegas Review-Journal
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© © All Rights Reserved
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IN THE SUPREME COURT OF THE STATE OF NEVADA BRET O. WHIPPLE, ESQ, AN INDIVIDUAL; AND JUSTICE LAW CENTER, LLC, A NEVADA CORPORATION Petitioners, vs. THE SECOND JUDICIAL DISTRICT COURT FOR THE STATE OF NEVADA IN AND FOR, THE COUNTY OF WASHOE AND THE HONORABLE JUDGE FRANCES DOHERTY, Respondents, K, BETH LUNA, an individual, LUNA LAW FIRM, PA, a Corporation, Real Parties in Interest. Electronically Filed Aug 21 2015 08:52 a.m Tracie K. Lindeman Supreme Court Case Sleek of Supreme Court trict Court Case No.: FV13-02473 BRET O, WHIPPLE, ESQ. K. BETH LUNA, ESQ. JUSTICE LAW CENTER LUNA LAW FIRM, PA 1100 South 10° Street 301 W. Bay Street, #14141 Las Vegas, NV, 89104 Jacksonville, FL 32202 702-731-0000, Fax — 702- Real Party in Interest 974-4008 ATTORNEYS FOR PETITIONER Docket 68668 Document 2015-25282 THE SECOND JUDICIAL DISTRICT COURT FOR THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE; JUDGE FRANCES DOHERTY 75 Court Street Reno, NV 89501 (775)328-3110 PETITION FOR WRIT OF MANDAMUS, OR ALTERNATIVELY, FOR WRIT OF PROHIBTION TABLE OF CONTENTS TABLE OF AUTHORITIES..... 1 INTRODUCTIO! 2 ISSUES PRESENTED..... 3. RELIEF REQUESTED... 4, | FACTUAL BACKGROUND AND PROCEDURAL, HISTORY... 5. LEGAL ARGUMENTS. 6. CONCLUSION.. TABLE OF AUTHORITIES Bahena v. Goodyear Tire & Rubber Co., 235 P.3d 592, 596 (Nev. 2010)... Marshall v. Eighth Judicial Dist. Court, 108 Nev. 459, 465, 836 P.2d 47, 52 (1992)... Office of the Washoe Cnty. DA v. Second Judicial Dist. Court, 116 Nev. 629, 636, 5 P.3d 562, 566 (2000). o14 Other Jurisd: Accord Lawson y. Sec’y, Dep't of Corr., 2014 U.S. App. LEXTS 7199 (11th Cir. wal 9, 28 Apr. 17, 2014). ... Harding Univ. v. Consulting Servs. Grp., L.P., 48 F. Supp. 2d 765, 769 (N.D. Ill. 1999)... cece cee AS Kelter v. Associated Financial Group, 382 Fed. Appx. 632, 2010 U.S. App. LEXIS T1661 5 (oth Cir 2010) serene MetLife Bank, N.A. v, Badostain, 2010 U.S. Dist. LEXIS 138261, *21-22, 2010 WL 5559693 (D. Idaho Dec. 30, 2010). ..... 18 Operating Engineers Pension Trust v. A-C Co., 859 F.2d 1336, 1344 (9th Cir. fae! Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 388 (2d Cir. 2003).......... 19, 28 [TRODUCTION Petitioner asks this Court to restrain the District Courts of this state from imposing sanctions which would act to hinder the zealous advocacy of attorneys on behalf of their clients. Specifically, the District Court in this case sanctioned attorney Bret Whipple, Esq. in a manifest abuse of that Court’s discretion. ‘Mr. Whipple represented a mother (Tarah Stampfli) in a custody dispute. During the case below, the Court erroneously interpreted a custody schedule. The Court claimed that Mrs. Stampfli, at the parenting plan meeting, agreed to joint physical custody with every-weekend visitation. Through his conversations with Mrs. Stampfli, Mr. Whipple discerned that Mrs. Stampfli had not agreed to modify custody. Furthermore, Mr. Whipple’s review of the pleadings revealed inconsistencies in the Court’s orders. Mr. Whipple filed a motion for clarification of the Court's orders, and requesting cessation of the father’s visitation due to safety concerns which are not at issue here. Eventually, the Court issued an order granting sanctions against Mr. Whipple, holding that he was incorrect in regards to the custody order, and that if he had done his due diligence, he would have realized his error and refrained from filing his motion. Petitioner asks this Court to reject the District Court’s findings as manifest abuse of discretion. For the reasons expressed herein, the Motion (for which Mr. Whipple was sanctioned) was reasonable and its allegations regarding the existence (or non-existence) of an every-weekend custody order were not only legally plausible, but correct. 2. ISSUES PRESENTED (1) Whether the District Court abused its discretion when it found that Mr. Whipple violated NRCP 11 and ordered him to pay a $500.00 sanction and over eleven-thousand dollars in attorney’s fees, (2) Whether it is an abuse of discretion to impose Rule 11 Sanctions on an attorney based on minor factual inaccuracies in a Motion where, overall, there is a good-faith basis for the substance of that Motion, and there are sound legal reasons for filing the Motion, notwithstanding minor factual inaccuracies; 3. RELIEF REQUESTED Petitioner requests that a Writ of Mandamus (or, alternatively, Prohibition) issue to the Respondent Judge Doherty of the Second Judicial District Court directing her to withdraw the Order Granting Rule 11 Sanctions, on the basis that the Order was issued in manifest abuse of the District Court’s discretion; further, ue an Order Petitioner requests that the District Court be commanded to is 6 indicating that Mr. Whipple is not required to pay Sanctions in the amount of $500.00 to Washoe County Law Library or attorney’s fees in the amount of $11,620.75 to Luna Law Firm. 4. FACTUAL BACKGROUND AND PROCEDURAL HISTORY Tarah Stampfli and Bradey K. Royle became involved in a dispute over the custody of their minor child Bailey in 2013. Tarah Stampfli retained Justice Law Center and Bret O. Whipple, Esq., to represent her in that custody dispute. Mrs. Stampfli was familiar with Mr. Whipple, as Mr. Whipple had successfully represented her husband John Stampfli in a previous case. Mr. Royle filed a Petition to Establish Paternity, Child Custody, Visitation and Support on August 7°, 2013. Mr. Whipple then filed an answer to that petition on September 23, 2013. On December 3, 2013, the patties stipulated to a custody arrangement. Pursuant to that custody agreement, Mrs. Stampfli “will have temporary. primary custody” subject to Mr. Royle’s visitation. The custody schedule was specifically defined: “Bailey will also visit with Mr. Royle every other weekend starting with on [sic] October 25, 2013 and continuing every weekend thereafter.” (Petitioner’s Appendix (“PA”) 00001-00004). This Stipulation was drafted by Luna Law Firm, Id. ‘A Case Management Conference was held on December 9, 2013, at which attorney Steve Stucker (Bar No. 34) appeared for Justice Law Center. The Court then filed an Interim Order re-affirming the custody schedule set forth in the stipulated agreement: “visitation with the minor child shall continue as set forth in the parties’ stipulation and order dated December 3, 2013.” (P.A, 00005-00006). On January 22, 2014, a Parenting Plan was filed which affirmed the existing custody order (“This agreement affirms [that the custody schedule] continues as a temporary order.”) However, the Parenting Plan also indicated that: “father will-have Bailey in his care from Thursday [...] until Sunday.” (P.A. 00010-00012). Despite that language, the Parenting Plan also said: “[if civil holidays) happen to be [on] father’s weekend, his weekend extends to Monday at 5:00 PM.” Id, emphasis added. The Court filed an “Order Re: Approval of Memorandum of Agreement Parenting Plan” on February 21, 2014. (P.A. 00013- 00015). The Parties were then scheduled to attend a Case Settlement Conference on February 28, 2014. On the date of that hearing, Mr. Whipple called the Court to inform them that counsel (Mr. Stucker) for Mrs. Stampfli was sick with a migraine and requested that he (Mr. Whipple) be allowed to appear telephonically in his place. The Court denied any remedy, refused to continue the hearing, and refused to allow Mr. Whipple to appear telephonically. (P.A. 00016-00022). That Non-Appearance is not related to the eventual Sanctions against Mr. Whipple, except that, at that Settlement Conference, attorney Luna (for Mr. Royle) argued to the Court that Mr. Royle was not receiving his custodial time. Mrs, Luna argued that custodial visitation was supposed to be every weekend. As the Court had not allowed Mr. Whipple to appear telephonically, there was no opposition argument to that interpretation of the custody schedule. Mr. Whipple would have argued that the custody schedule was still every other weekend. The Court’s order as a result of that hearing stated as follows: “This Court mandates that Defendant comply with the visitation as ordered in the February 21, 2014 Order and attached parenting plan or she will be held in contempt.” Id. Between February 28, 2014 and March 4, 2014, Justice Law Center and Mr. Whipple became aware of numerous new allegations regarding potential safety- of-the-child issues regarding Bailey. Additionally, Mr. Royle, in that time, attempted to exercise every-weekend visitation with Bailey. On March 4, 2014, Mr. Whipple filed a Motion for Immediate Discontinuation of Visitations, and a Motion to have Bailey interviewed by the Court in regards to safety-of-the-child concerns. (P.A. 00023-00029). On March 6, 2014, Mrs. Luna apparently sent a letter to Justice Law Center, indicating that they believed the March 4, 2014 Discontinuation Motion was filed in violation of NRCP 11. The letter asserted that the Discontinuation Motion contained factual inaccuracies, and that the Parenting Plan required every weekend visitation, not every-other weekend visitation. (P.A. 00030-00031). After receiving that letter, Mr. Whipple withdrew the March 4" Discontinuation Motion, so that it could be reviewed as to its content, given Luna’s Rule 11 concems. After reviewing the contents of that Motion, Mr. Whipple made minor changes. Otherwise, Mr. Whipple believed, based on his review of the original December 3, 2013 Custody Stipulation (which the other Order’s incorporated), and based on the representations made by Mrs. Stampfli, that the allegations contained therein were accurate to the best of his knowledge. See Affidavit of Bret Whipple (to be supplemented). Mr. Whipple then, on March 11, 2014, filed a Re-Notice Motion which was substantially similar to the March 4, 2014 Discontinuation Motion. (P.A. 00031-00040). On March 28, 2014, Luna filed an Opposition to Re-Notice Motion, once again alleging that the Re-Notice Motion contained factual inaccuracies. (P.A. 00041-00072). In this Motion, Luna indicated that it would seek a Motion for Rule 11 Sanctions, once the required safe-harbor notice window (giving an 10 opportunity to withdraw the Re-Notice Motion) expired. Mr. Whipple did not withdraw this Match 11 Motion at that time, as he believed it had substantial merit to (1) clarify the ambiguous visitation schedule, and (2) have the child interviewed regarding the safety concerns. Unrelated to the ongoing dispute over those motions, Mr. Whipple moved to withdraw as counsel of record on April 9, 2014. Mr. Whipple attempted to withdraw as the client (Stampfli) could no longer afford to pay for additional legal work on her matter. On April 13, 2014, Luna filed a Motion for Rule 11 Sanctions, again alleging factual inaccuracies in the Re-Notice (Discontinuation) Motion from March 11, 2014. (P.A. 00073-00102). On April 23, 2014, Luna filed an Opposition to Motion to Withdraw as Counsel. On that same date, Mr. Whipple filed for a withdrawal of the Re-Notice Motion, as he was in the process of withdrawing from the case, and believed it was appropriate to withdraw the motion at that time, as he could no longer argue in favor of it on its merits without being paid by the client. In hindsight, Mr. Whipple believes he should not have attempted to withdraw the Re-Notice Motion, but rather, remained on the case to argue the issues on the merits. (Affidavit of Bret O. Whipple, Esq. to be supplemented). Stampfli retained a different attorney and the custody issues in the case were resolved on May 28, 2014. The Court ordered Mr. Whipple to appear in regards to the Motion for Sanctions, on October 22, 2014. Jd. The Court then received briefings for and against the sanctions, and took oral argument on the Motion for Sanctions. Mr. Whipple argued that the substantial majority of facts in the Re-Notice motion were correct, that the custody order(s) in the case were ambiguous, and that he reasonably acted as a zealous advocate of his client. Luna argued that the facts were inaccurate, that the order was not ambiguous, and that Mr. Whipple failed to do due diligence on the Re-Notice motion. On February 10, 2015, the District Court issued an Order Granting Motion for NRCP 11 Sanctions. (00174-00185). The Order granted a sanction of $500.00 and attorney’s fees in the amount of $11,620.75. The Court identified two roughly-drawn areas where it found a Rule 11 violation: (1) that the Re-Notice Motion claimed that Mr. Whipple did not have access to filings in the case prior to March, 2014 due to problems with the e-flex filing system (the Court found that Mr. Whipple had access from February 28, 2014); and (2) Mr. Whipple stated that no order had been produced and no minutes had been filed establishing every-week custody (the Court found that they had filed an Order establishing every-week custody, and that Mr. Whipple did or should have reviewed that Order). The Court additionally commented on potential other errors on which it took evidence (e.g., whether or not Mr. Whipple was aware or should have been aware that Mr. Royle was going to pick Bailey up from school), but this issue does not appear in the Findings and Order issued by the Court, Mr, Whipple appealed this Order to the Supreme Court of Nevada. (Case No. 67508). That Appeal was dismissed as both Mrs. Stampfli and Mr. Whipple lacked standing to appeal the Order. The Court indicated that the correct remedy for Mr. Whipple would be a writ petition challenging the Court’s Order. This Petition for Original Writ of Mandamus (or alternatively, Prohibition) now follows. 5. LEGAL ARGUMENTS (1). Standard of Review In reviewing sanctions, on direct appeal, the standard of review is whether the district court abused its discretion in granting sanctions. Bahena v. Goodyear Tire & Rubber Co., 235 P.3d 592, 596 (Nev. 2010). However, because mandamus will not lie to control discretionary action, unless discretion is manifestly abused or is exercised arbitrarily or capriciously, the standard of review in this case is whether the District Court manifestly abused its discretion. Office of the Washoe Cnty. DA v. Second Judicial Dist. Court, 116 Nev. 629, 636, 5 P.3d 562, 566 (2000). (2). NRCP LL NRCP 11, in pertinent part, dictates as follows: “By presenting to the Court [...] a pleading, written motion, or other paper, an attorney is certifying that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, [...] the denial of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based ona lack of information or belief” and “it is not being presented for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation” and “the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” See NRCP 11(a)-(b)(4). a. NRCP (b)(1). NRCP (b)(1) requires that an attorney filing a motion certifies that it is not being presented for any improper purpose such as to harass or to cause unnecessary delay or needless increase in the cost of litigation. See NRCP 11(b)(1). The District Court cited NRCP (b)(1)(a) when finding that “Mr. Whipple filed such Motion without performing a reasonable inquiry into the factional allegations, information, and argument contained therein.” There is no (b)(1)(a) in Rule 11; there is only (b)(1). We assume the Court intended to cite NRCP 11 (b)(1) when it referred to (b)(1)(a). However, the Court does not, at any point in its Findings and Order, comment on whether it found that Mr. Whipple had filed the Re-Notice Motion for the purposes of harassment or delay. Thus, it is unclear whether or not the Court made a finding that Mr. Whipple violated 11(b)(1). ‘Assuming, arguendo, that the Court did make such a finding, that finding was made in manifest abuse of discretion. There was no evidence on the record, and no evidence cited in the District Court's Order, indicating that Mr. Whipple intended to file a motion for “any improper purpose” such as to harass or to cause delay. In fact, during all the testimony taken, Mr. Whipple consistently maintained he believed he had a duty to file the Motion, that he believed the custody order was ambiguous, and that he had a duty to defend his client. Even if the Court is correct that Mr. Whipple failed to do his due diligence in regards to fact-checking there was never any evidence of an improper motive or bad faith on his part. Furthermore, even in hindsight, there are good reasons for the Re-Notice motion to have been filed. Specifically, Mr. Whipple reasonably believed that the custody order of the court was for every-other-weekend visitation. Id. Thus, based on the ambiguity in the Court’s Order Granting Sanctions in its citation to NRCP 11(b)(1) or (b)(1)(a), the lack of any specific reference to the language of that section in that order, and the inapplicability of Section 11(b)(1) to these facts, any finding that Mr. Whipple violated 11(b)(1) was made with manifest abuse of discretion by the District Court, and the sanctions should be stricken on that basis. b. NRCP (b)(3), NRCP (b)(4) NRCP (b)(3) states that an attorney certifies that: “‘the allegations and other factual contentions have evidentiary support or, if specifically so identified, are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” NRCP (b)(4) states that the attorney warrants that “the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on a lack of information or belief.” Taken together, (b)(3) and (4) impose a duty on the filing attorney to ensure that all factual claims and factual denials have evidentiary support, are warranted on the evidence, or are likely to have evidentiary support after a reasonable opportunity for further investigation or discovery. In this case, the District Court found that Mr. Whipple violated this rule by certifying that the claims made in the Re-Notice Motion had evidentiary support. The Court found that Mr. Whipple had claimed that there was no every-weekend custody order, claimed he did not have access to the pleadings, but that “[this] was not the case.” Specifically, the Court found that “The Parenting Plan granted the Parties joint physical custody and gave Plaintiff custody from Thursday afternoon, to Sunday afternoon.” (pg. 9) and that Mr. Whipple would have known about this if he had properly reviewed the Settlement Conference Statement, the JAVS video, the Court minutes, or letters from Plaintiff’s counsel. Id. Thus, the Court’s only justifications for its sanctions, contained within its Findings and Order, are (1) that Mr. Whipple claimed there was no Order when there was an Order; and (2) that Mr. Whipple should have been aware of correspondence from opposing counsel regarding Mr. Royle picking Bailey up from school. The Court discussed other allegations on which it took evidence, but these do not appear in the Courts findings. Thus, the violation found by the Court is that Mr, Whipple’s claims regarding the existing (or non-existing) custody order lacked evidentiary support pursuant to NRCP 11(b)(3)-(4), and that Mr. Whipple ” claimed to have lacked access to the e-flex system for a greater length of time than he actually lacked it. The Federal Rule of Civil Procedure 11(b)(3) is substantially similar to Nevada’s rule. In the Federal context, Courts have indicated that: “A sanction will not be imposed unless a specific allegation is utterly void of support.” Harding Univ. v. Consulting Servs. Grp., L.P., 48 F. Supp. 2d 765, 769 (N.D. Ill. 1999) The Rule requires only that an attorney conduct an inquiry reasonable under the circumstances into whether factual contentions have evidentiary support. Fed. R. Civ. P. 11(b) and (b)(3). Id:The Ninth Circuit has repeatedly stated that Rule 11 sanctions are "an extraordinary remedy, one to be exercised with extreme caution" and only in rare and exceptional cases. Operating Engineers Pension Trust v. A-C Co., 859 F.2d 1336, 1344 (9th Cir. 1988); see also, Kelter v. Associated Financial Group, 382 Fed, Appx. 632, 2010 U.S. App. LEXIS 11661, *5 (9th Cir. 2010). MetLife Bank, N.A. v. Badostain, 2010 U.S. Dist. LEXIS 138261, *21-22, 2010 WL 5559693 (D. Idaho Dec. 30, 2010). Other courts have held that: “with regard to factual contentions, sanctions may not be imposed unless a particular allegation is utterly lacking in support.” Storey v, Cello Holdings, L.L.C., 347 F.3d 370, 388 (2d Cir. 2003). A factual claim is frivolous if no reasonably competent attorney could conclude that 18 it has a reasonable evidentiary basis. Accord Lawson v, Sec’y, Dep’t of Corr., 2014 U.S. App. LEXIS 7199 (11th Cir. Apt. 17, 2014). Thus, where no evidence or only patently frivolous evidence is offered to support factual contentions, sanctions can be imposed. Id. The issue is whether the moving party has provided any evidence supporting his claims, See 1-2 Sanc. Fed. Law of Lit. Abuse § 9. While this federal law is not precedential on this Court, it should be persuasive. The policy of this State is supported by following the same lines-of- thought pursued in the federal circuits. Furthermore, this Court has explicitly declared: “we do not wish to discourage attorneys from exercising imagination and perseverance on behalf of their clients, particularly where a client has appeared to have been victimized.” Marshall v. Eighth Judicial Dist. Court, 108 Nev. 459, 465, 836 P.2d 47, 52 (1992). Thus, the policies of Nevada and the federal circuits are analogous, and weigh against the imposition of sanctions. The _substance_of Mr. Whipple’s allegations were accurate, and_the District Court abused its discretion when it held that he was wrong. In this case there is one central fact which was ignored by the District Court which should operate to preclude sanctions from resting against Mr. Whipple. In the case below, there were several custody documents, beginning with a December 3, 2014 Stipulation and Order establishing every-other-weekend visitation. That Order was explicitly incorporated by each subsequent Order in a “chain of incorporation.” Mr, Whipple was correct in asserting that there was no Order for every week visitation, and the District Court’s findings are a manifest abuse of discretion. Just as you cannot squeeze water from a stone, the District Court cannot squeeze every-weekend visitation out of (unmodified) every-other-weekend visitation, The initial custody agreement indicated that: “Bailey will visit with Mr. Royle every other weekend starting with on [sic] Friday, October 25, 2013 and continuing every weekend thereafter.” (P.A. 00001-00004). This one little sentence --- drafted by Luna Law Firm --- caused all the trouble and confusion which followed. The sentence clearly indicates every other weekend, but one could argue that the language “continuing every weekend thereafter” is confusing, as it should say “every other weekend thereafter.” Id. Any ambiguity is resolved by a closer analysis of the language. If “every weekend thereafter” were taken literally to mean every weekend instead of every other weekend, then the sentence becomes non-sense. For, if Mr. Royle started “every other weekend” visitation on Friday, October 25, 2013, and then exercised every weekend visitation from then on (starting with November 1, 2013) then it would mean the same thing as saying “Mr. Royle will exercise visitation every 20 weekend beginning on Friday, October 25, 2013.” And since the drafter took the trouble of making the sentence more complicated, we can reasonably assume that the “every other weekend” portion of that sentence is what matters. The best way to read the agreement is as stating that Mr. Royle was to have every-other weekend custody beginning October 25, 2013, and continuing every other weekend thereafter. The parties own conduct re-enforces that interpretation, as they exercised every-other weekend visitation from October 2013, until February, 2013. The next custody order was the Interim Order after the Case Management Conference, filed six days after the stipulated order, on December 9, 2013. That Order incorporated the earlier Stipulation: “Father’s visitation with the minor child shall continue as set forth in the parties’ Stipulation order dated December 3, 2013.” (P.A. 00006). Furthermore, this Interim Order re-enforces the initial every- other weekend understanding, as it specifically declares that “Mr. Royle shall also have additional visitation on Friday, December 27, 2013 ... [through that weekend]” (emphasis added). Jd. If Mr. Royle already had every-weekend visitation, this “additional” visitation declaration is redundant. Thus, the Interim Order ratifies every-other-weekend visitation. au The next pleading of relevance was the January 22, 2014 Parenting Plan. (P.A. 00010-00012). That document explicitly rests itself on the December 3, 2013 Stipulation and Order: “Pursuant to [that stipulation] the parties exercise temporary joint physical custody [sic] and mother has temporary physical custody.” Id, This document goes on to set a Physical Custody Schedule, but there is absolutely no evidence that it intended to act as a modification. It states: “During school terms, father will have Bailey [from Thursday to Sunday].” Id. But it also states, in regards to civil holiday visitation: “If that happens to be father’s weekend, his weekend extends to Monday at 5:00 P.M.” Once again, that sentence only makes sense if there is every-other weekend visitation. Furthermore, the Parenting Plan indicated that “this agreement affirms this continues as a temporary order” in reference to the original Stipulation, which was clearly every- other weekend. This interpretation is consistent with what Mr. Whipple learned from speaking with Mrs. Stampfli immediately following the Parenting Plan conference: that she did not agree to any change in the pre-existing agreement. The next Order, continuing this chain of incorporation, is the February 21, 2014 Order. In that Order, the Court “ratified and confirmed” the Parenting Plan. This Order incorporated the Parenting Plan, noting that it “shall remain in full force and effect unless modified by subsequent Order of the Court.” 2 As we discussed previously, the Court then held a Case Settlement Conference, at which Mrs. Stampfli did not appear. Mr. Whipple attempted to appear via telephone [due to a sickness of his Reno counsel, Mr. Steve Stucker] but was denied by the Court; instead, the Court held a hearing in the absence of Mr. Whipple and Mrs. Stampfli. The Court heard argument from one side, without the other side’s presence. This egregious violation of the due process of Stampfli and Mr. Whipple caused additional problems: without anyone there to argue against Attorney Luna, who disingenuously characterized the existing order as every-weekend visitation, the Court declared that: “There are allegations that the temporary visitation ordered on February 21, 2014 is not being complied with by Defendant in that Mr. Royle is not receiving his custodial time from Thursday after School until Sunday each week. This Court mandates that Defendant comply with the visitation in the February 21, 2014 Order and attached parenting plan or she will be held in contempt.” (P-A. 00017). Not only did the Court abusively hold a hearing outside the presence of Mr. Whipple and Mrs. Stampfli, it merely accepted the representations of Royle and Luna on their face, when a closer analysis of the record and pleadings would have, at minimum, required the Court to clarify the existing order. Either way, the February 21 Order incorporated the Parenting Plan which incorporated the December 9 Interim Order which incorporated the December 3, 2014 Stipulation, which provided for every-other weekend visitation. So even 23 when the Court orally orders --- outside the presence of Stampfli and Mr. Whipple --- that the Family Plan is to be enforced or-else contempt will follow, that oral order only serves to incorporate the chain of orders leading back to the original stipulation. The initial stipulation and order, ambiguously drafted by Luna Law Firm, was allowed to slowly snowball, until Luna Law Firm used the ambiguity it created to convince the District Court to enforce an order which never existed in the first place. While there is no allegation here that Luna Law Firm exercised malicious foresight when it ambiguously drafting the initial stipulation, there is a HUGE problem in that this ambiguity was allowed to ground sanctions against Mr. Whipple. Mr. Whipple merely attempted to point out to the Court this nuanced and ambiguous issue, and request clarification. It is manifestly abusive to hold sanctions against Mr. Whipple, especially when he was right all along. The Re-Notice Motion The Re-Notice Motion contains numerous factual allegations. Only a minute portion of those allegations were taken be problematic by the District Court. Briefly, the allegations which were not found to be inaccurate are as follows: (1) that the mother child's mother reported several incidents that included “even more frightening and disturbing” reports by the minor child; (2) that the m4 family experienced a great deal of stress recently; (3) that one of the family dogs was killed by a car; (4) that their house suffered a fire, requiring them to be displaced; (5) that the child was being used as a conduit to report potentially inaccurate commands from the judge to Mrs. Stampfli; (6) that Mr. Royle had been improperly medicating the minor child; (7) that the child had been called a “slut” by Mr. Royle; and (8) that Mr. Royle and/or his girlfriend improperly cut the minor child’s hair without consulting Mrs. Stampfli. These eight allegations, by themselves, reasonably warranted a return to Court, and Mr, Whipple’s belief that he needed to file a Motion was reasonable based on that alone. We turn now to the allegations which the Court found to be untrue, as quoted from the Re-Notice Motion: (1) “Apparently [because JLC was not allowed to be at the Case Settlement Conference] Plaintiff is now entitled to EVERY WEEKEND visitation; even though no order has been produced and no minutes have been filed”; (2) Defendant's Counsel [has not received notices or pleadings} until March, 2014; (3) “Defendant’s counsel only leamed of the Case Settlement Conference on the Monday prior to the scheduled conference”; (4) “[Mr. Royle] did not call anyone to advise he was suddenly interpreting the Parenting Plan in a manner which would give him more time; [Mr. Royle] would not confirm that he had taken the minor child from her school.” 25 These “false” allegations fit into three categories. First, whether or not there was an order setting every-weekend visitation, second, whether or not Justice Law Center had been receiving notices and pleadings, and third, whether or not Justice Law Center had notice of when/where Mr. Royle was going to be picking Bailey up, either from him personally, or from Luna Law Firm; this last “false” allegation was discussed at the evidentiary hearing, but was not referenced in the Courts Findings in the Order granting sanctions. Whether there was an order setting every-weekend visitation. As argued extensively above, Mr. Whipple reasonably believed that there was no order filed establishing every-weekend custody. In fact, even now with over a year of hindsight, we would argue that there was never an order setting every-weekend custody. Yes, there was an Order filed ---- but that Order simply incorporated the Parenting plan, which incorporated the Interim Order, which incorporated the initial Stipulation. Certainly, if Mr. Whipple was correct in arguing that there was no Order setting every-weekend visitation, he cannot be sanctioned on that issue. The Court did find that Mr. Whipple did not do his “due diligence” in reviewing certain pleadings. (P.A. 00174-00185). The Court indicated that, if Mr. Whipple had reviewed the pleadings more closely, he “hopefully would not have filed [the Re-Notice Motion].” Id. But Mr. Whipple would have filed the Re-Notice Motion either way. After reviewing all of the pleadings closely for the purposes of this Petition, Mr. Whipple still would have filed a Motion substantially similar to the Re-Notice Motion, for the same reasons he filed it in the first place. There simply was not an order setting every-weekend custody. Even if the Court thought that it had ordered every-weekend custody, the Court's oral command was ambiguous. It unquestionably required clarification, especially where Mr. Whipple was not given the opportunity to appear telephonically to argue these matters in the first, place. Based on Mrs. Stampfli’s representations regarding what she had agreed (or not agreed) to at the parenting plan meeting, based on the chain-of-incorporation back to the Stipulation, custody still should have been every-other weekend. Applying the case-law to these facts, the District Court’s Order Granting Sanctions was a manifest abuse of discretion, As the federal courts have held: “with regard to factual contentions, sanctions may not be imposed unless a particular allegation is utterly lacking in support.” Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 388 (2d Cir. 2003). “A factual claim is frivolous if no reasonably competent attorney could conclude that it has a reasonable evidentiary basis.” Accord Lawson v. Sec'y, Dep't of Corr., 2014 U.S. App. LEXIS 7199 (1ith Cir. Apr. 17, 2014). If this Court truly believes that there was no “reasonable evidentiary basis” for the claim that there was no every-weekend custody order, and that such a claim was “utterly lacking in support,” then by all means, endorse the sanction. It is clear that the District Court erred in this case, and that it sanctioned Mr. Whipple improperly. At no point was the initial custody Stipulation modified. It was continually incorporated until the District Court forgot its original meaning. The District Court then erroneously interpreted that meaning in a hearing outside the presence of Stampfli and Mr. Whipple. Whether Justice Law Center had been receiving pleadings and notices prior to March, 2014. We concede that there were slight factual errors, considered in hindsight, regarding the timing of the reception of certain notices, pleadings, or access to the e-flex server. For instance, the Re-Notice Motion alleged that Justice Law Center did not have access until March, 2014. The District Court held that Mr. Whipple testified that he had notice and access to documents by roughly February 21, 2014 through February 28, 2014. See Court’s Order, pg. 7. At most, the Re-Notice Motion potentially misstated facts regarding JLC’s receipt and notice of pleadings by at most two weeks. Additionally, it must be noted that Mr. Whipple’s testimony (that he had access to the E-Flex system two weeks earlier than the Re- Notice Motion) was taken approximately six months after the Re-Notice Motion was filed, and it would not be unusual for estimates of time to vary due to the time-gap’s effect on recollection. Regardless, even if the allegation in the Re-Notice Motion might have been literally inaccurate regarding the date on which Mr. Whipple received access to e- flex, it is important to point out that: (1) these factual allegations regarding notice were ultimately immaterial to the substance of the pleading, and (2) the misstating of a particular timeline in a long-running civil case is far from a serious error on the part of Mr. Whipple. We ask whether this Supreme Court of Nevada believes that the policy of this State is to sanction attorney's and have them pay over twelve thousand dollars in legal fees because of misstating immaterial timelines by a period of weeks, That ought not to be the law of this State. Even if this Court is inclined to allow for the District Court’s strict interpretation of factual allegations, it is not even clear that these hindsight false allegations fall within NRCP 11(b)(3). That rule allows for allegations which are “likely to have evidentiary support after a reasonable opportunity for further investigation or discovery.” For reasons related to the safety-issues of the minor child (which were not found to be false or sanctionable) Mr. Whipple had a duty 29 to file the Re-Notice Motion as soon as possible. Mr. Whipple made allegations regarding the time-line that could have been true upon a very focused review of the timeline of the case. An attorney should be allowed to reasonably approximate a timeline in his pleadings, and if he is wrong about an immaterial fact (by only a few weeks approximation) he should not have to pay $12,000.00 in sanctions. The policy of this State would be deeply frustrated by an application of Rule 11 imposes harsh consequences for immaterial, minor errors. 6. CONCLUSION This case presents an inappropriate use of sanctions by the district court. The court abused its discretion by sanctioning Mr. Whipple. The Court may not sanction an attomey for making plausible legal allegations in a motion (e.g., that there was no every-week custody order in this case) simply because it has a different legal view of the situation. Furthermore, these problems were created by the district court’s abusive decision to hold a hearing and take argument without allowing Mr. Whipple to appear by phone. The Court's sanctions merely compounded that error. Allowing the district court’s sanctions to remain standing would have the effect of curtailing zealous advocacy in this State. For the numerous reasons 30 discussed in this Petition, this Court should find a manifest abuse of discretion and grant the relied requested herein. DATED this 20" day of August, 2015 /S/ Bret Whipple Bret Whipple. Esq. JUSTICE LAW CENTER Bar No. 6168 1100 South 10" Street Las Vegas, NV 89104 702-731-0000 Fax: 702-974-4008 CERTIFICATE OF SERVICE Thereby certify that I served a copy of the: WRIT OF MANDAMUS providing a copy to the following by virtue of e-filing on August 20, 2015 with the Supreme Court: K. BETH LUNA, ESQ. LUNA LAW FIRM, PA 301 W. Bay Street, #14141 Jacksonville, FL 32202 THE SECOND JUDICIAL DISTRICT COURT FOR THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE; JUDGE FRANCES DOHERTY 75 Court Street Reno, NV 89501 /s{ Bret O, Whipple An employee of Justice Law Center 32 CERTIFICATE OF COMPLIANCE I hereby certify that this brief complies with the formatting requirements of NRAP 32(a)(4), the typeface requirements of NRAP 32(a)(5) and the type style requirements of NRAP32(a)(6) because: This brief has been prepared in proportionally spaced typeface using Word Perfect, Font size 14, Times New Roman. I further certify that this brief complies with the page- or typevolume limitations of NRAP 32(a)(7) because, excluding the parts of the brief exempted by NRAP(a)(7)(C), does not exceed 30 pages. Finally, I hereby certify that I have read this appellate brief, and to the best of my knowledge, information, and belief, it is not frivolous or interposed for any improper purpose. I further certify that this brief complies with all applicable Nevada Rules of Appellate Procedure, in particular NAP 28(e)(1), which requires every assertion in the brief regarding matters in the record to be supported by a reference to the page and volume number, if any, of the transcript or appendix where the matter relied on is to be found. I understand that I may be subject to sanctions in the event that the accompanying brief is not in conformity with the requirements of the Nevada Rules of Appellate Procedure. Dated this 20" day of August, 2015. /s/ Bret O. Whipple, Esq. Nevada Bar # 6168 1100 S. Tenth Street Las Vegas, Nevada 89104 (702) 731-0000 33 Ae ea Aw rT 2 3 14 15 16 7 18 19 20 2 22 23 24 as 26 27 28 CODE: 2040 BRET O, WHIPPLE, ESQ. ‘Nevada Bar No. 6168 JUSTICE LAW CENTER, 1550 South Wells Ave, Ste. 100 Reno, Nevada 89502 (775) 333-1010 Attorneys for Defendant IN THE-FAMILY DIVISION OF THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE BRADLEY ROYLE, > Plaintiff, } Case No: FVI3-02473 ) Dept.No: 12 vs. d ‘TARAH STAMPFLI, ; Defendant. } ee RE-NOTICE OF MOTION FOR IMMEDIATE DISCONTINUATION OF VISITATIONS CHILD INTERVIEW AND OTHER CHILD RELATED MATTERS COMBS NOW, TARAH STAMPPLI (hereinafter, “Defendant”), by and through her atiomeys, JUSTICE LAW CENTER, BRET O. WHIPPLE, ESQ., and moves this Honorable Court for Orders regarding the care, custody and control of the patties’ minor child as follows: 1. Thatall visitation between the minor child atissue herein, namely: BAILEY REGAN HEYING, born: May 17, 2002, and Plaintiff, BRADLEY ROYLE, cease entirely ‘until such time as the minor child may be interviewed by this Honorable Coutt; 2. ‘That the minor child herein named be immediately interviewed by this Honorable Court; ~ 3. That any and all Orders regarding visitation be clarified for all patties, 4. For such other and further relief as the Court may deem just and proper in the Re-Notice of Motion to Discontinue Visitations - 1 0032 ema aneurn 10 ul 12 1B 14 is 16 7 18 19 20 21 22. m 25 26 un 28 premises ‘This motion is made and based on the points and authorities, papers and pleadings on file, any and all affidavits and any oral argument presented at the time of heating this matter, APEIRMATION Pursuant to NRS 2398.030 ‘The undersigned does hereby affirm that this document does not contain the Social Secuity umber of any person DATED this 10" day of March, 2014. JUSTICE LAW CENTER / Bret O, Whipple BRET WAIPPLE, ESQ Nevada Bar No. 6168 1550 South Wells Avenue, Ste, 100 Reno, Nevada 89502 (775) 333-1010 Attomeys for Defendant POINTS'AND AUTHORITIES FACTS ‘The minor child, the issue of this matter, should be allowed to discontinue any and all ‘unsupervised visitations with Plaintiff, immediately due to many disturbing revelations made by the minor child, ‘The minor child’s mother has reported several incidents that have been disclosed in Defendant's Case Settlement Conference Statement; however, siace that time even more frightening ‘and disturbing information has been reported by the minor child which should be confirmed by the Court. The minor child and her entize family have recently experienced a great deal of trauma in their lives. The family’s home erupted in fire in the middle of the night while the family was Re-Notice of Motion to Discontinue Visitations - 2 (00033, ee es 10 W 12 13 14 15 16 7 18 19 20 24 2 23 24 25 26 27 28 sleeping. One of the family dogs was struck by a car in the presence of all of the family members; ‘unfortunately, the dog did not survive, Because ofthe fire, the entire family has been displaced and finally, each member of the family became violently ill the evening prior to the scheduled Case Settlement Conference. Nevertheless, the minor child, pursuant to the order of this Court, was dutifully sent to exercise visitation with Plaintiff, even though she was ill. During the visitation, the minor child was told by Plaintiff to “tell” her parents that “the ‘Indge said [regarding their inability to be in court on Friday, February 28" 2014), ifthey do it again, they will never see her [Bailey] again.” Furthermore, Plaintiffis said to have advised the minor child that he: ‘knows people in the courts and CPS and there is no way they (Defendant and her husband, Purthermore, despite every effort to appear at the hearing this firm was unable to provide Counsel due to illness. Apparently, because of that, the minor child was told to “tell” her parents that Plaintiff is now entitled to EVERY WEEKEND visitations; even though no order has beea produced and no minutes have been filed. Defendant's Attorney has received absolutely no Notices of lectronic Filing (NEF) from the Court regarding any hearing, meeting, conference or other matter concemning this case until Match, 2014. Defendant's Counsel’s office has encountered numerous deviations with regard to this case. At the time of attempting to file Defendant’s Case Settlement Conference Statement, Counsel’s office was advised that there was a filing fee required; although, Counsel had previously filed other pleadings, Counsel was NEVER listed as attorney of record. All notifications regarding this case were made to “Tara Heying,” which is not the client’s name AND Counsel was only noticed by mail from Plaintiff's counsel with unfiled documents. Defendant’s Counsel only learned of the Case Seitlement Conference on the Monday prior to the scheduled conference and, only because Defendant advised Counsel’s office that “something is scheduled for Friday...” Defendant's Counsel was NOT noticed of the Case Settlement Conférence, the date or any other specific information regarding this hearing. Prior to Defendant's Re-Notice of Motion to Discontinue Visitations - 3 0034 wey aueon en RBRRPPRRLRke eee eee eee eS TS EBSRSES SERS REE REO Ss Counsel filing his “Notice of Appearance,” Defendant's Counsel could not even access this case on. “flex!” ‘This finn has represented Defendant since August, 2013. When Defendant’s Counsel's office attempted to learn why no notices were being provided and, exactly what was scheduled for Friday, February 28,2014; acall was placed to Department 12's Judicial Assistant, This office was advised that in order to find out why Counsel was not being noticed that they should “tlk to Mr. Whipple.” When the Assistant was advised that Mr. Whipple does not keep the court records, the Assistant responded: “Are you listening to me! You need to talk to Mr, Whipple!” and hung, up. ‘That eall was placed at 4:50 p.m on February 23, 2014, Additionally, after receiving a copy of the proposed parenting plan ftom Plaintiff, this office attempted to verify that the document was indeed correct with the Family Services Program, this office was advised that “no one knew Mr. Whipple was counsel of record...so, that’s why there were no notices.” Defendant should not be punished because her attomey was debilitated by a migraine. Additionally, Defendant’s counsel made every effort to provide a stand-in at the last minute however, the matter was called without the benefit of representation for Defendant. Neitherof those events were Defendant's fault. Prior to the past weekends visitation, in Defendant’s case settlement conference stetement, Defendant requested that the minor child be interviewed by this court due to numerous other statements and situations the minor child has made and been exposed to, now, it is even more imperative then ever. Defendant is frightened for her child’s mental well-being. LEGAL ANALYSIS ‘The minorchild is beingused to transmit messages from Plaintiffto Defendantregarding this very contentious matter when the minor child should not even be aware of the dissension between the parties. Plaintiff should be admonished to discontinne this practice immediately. Additionally, the minor child retumed to Defendant with her hait cut again, and, again Re-Notice of Motion to Discontinue Visitations - 4 00035 ea ae een 10 u 12 13 4 15 16 wy 18 19 20 21 22 23 24 25 26 27 28 without Defendant's knowledge or consent; this must stop. The minor child is caught in the iiiddle, believing her mother has been consulted regarding these cosmetic alterations when in fact she has not. Alll of these matters wherein the child is being tugged in every direction are causing such stress and anxiety for this child that it can only be classified as “mental injury” pursuant to RS 4328.070 which states: NRS 432B.070 “Mental injury” defined. “Mental injury” means an injury to the intellectual or psychological capacity or the emotional condition of a child as evidenced by an observable and substantial impairment of the ability of the child to function within a normal range of performance or bebavior. ‘Unfortunately, Plaintif?’s behaviors are causing the minor child to fear him and his wife, ‘The minor child never knows what to believe. ‘The minor child receives two versions of everything causing her to be paralyzed with doubt and transfixed with fear, The minor child is so eager to gain Plaintiff's approval and acceptance that she has been unable to articulate her own desires, likes and Aislikes; fears and apprehensions. She is eleven. Additionally, NRS 432B.130 Persons responsible for child’s welfare. A person is responsible for a child’s welfare under the provisions of this chapter if the person is the child's parent, guardian, a stepparent with whom the child lives, an adult person continually or regularly found in the same household as the child, or a person directly responsible or serving as a volunteer for or employed in a public or private home, institution or facility where the child actually resides or is receiving child cate outside of the home for a portion of the day. This minor child is being subjected to the whims ofthe adults charged with her daily welfare. ‘There seems to be no limit to what Plaintiff and his wife will tell the minor child or speak about in her presence. She is confitsed and aftaid. The minor child enjoys spending time with PlaintifP's foster daughter who is close to her own age; otherwise, these visits are futile and fiustrating, Until such time as the minor child may be interviewed by this court, Defendant requests that Re-Notice of Motion to Discontinue Visitations - 5 00036 wey aua 10 u 12 13 4 15 16 7 18 19 20 2b 22 23 24 2s 26 27 28 allvisitation be supervised or halted completely. The minor child deserves and opportanityto.advise those who are making decisions regarding her physical and mental well-being what she feels and thinks, CHILD INTERVIEW Defendant requests thatthe court promptly interview the minor child so that she mightrelete {0 the court what she has been told and subjected to without the fear of retribution from Plaintiff ‘The minor child has related several disturbing incidents regarding her care and that of the foster children in PlaitifP's care; she should be allowed to relay this information to the cout without being intimidated by any of the parties involved. This is an urgent request. The miinor child is already

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