                                                   130 Nev., Advance Opinion        SO
                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                RENOWN REGIONAL MEDICAL                                No. 62666
                CENTER, A NEVADA CORPORATION,
                Petitioner,
                vs.
                THE SECOND JUDICIAL DISTRICT                                 FILED
                COURT OF THE STATE OF NEVADA,
                IN AND FOR THE COUNTY OF
                                                                              OCT 0 2 20i4
                WASHOE; AND THE HONORABLE
                BRENT T. ADAMS, DISTRICT JUDGE,
                                                                        CL

                                                                       BY
                                                                                       7313:1
                                                                             TRACE K. UNDEmArq
                                                                                                 (



                Respondents,
                and
                MICHAEL WILEY, AN INDIVIDUAL,
                Real Party in Interest.



                             Original petition for a writ of mandamus challenging a district
                court order granting partial summary judgment in an action regarding a
                hospital lien.
                             Petition granted in part and denied in part.

                Holland & Hart, LLP, and Jeremy J. Nork, Frank Z. LaForge, and
                Stephan J. Hollandsworth, Reno,
                for Petitioner.

                Snell & Wilmer, LLP, and William E. Peterson and Janine C. Prupas,
                Reno; Leverty & Associates and Vernon Eugene Leverty and Patrick R.
                Leverty, Reno,
                for Real Party in Interest.

                Matthew L. Sharp, Ltd., and Matthew L. Sharp, Reno,
                for Amicus Curiae Nevada Justice Association.




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                 BEFORE THE COURT EN BANC.'

                                                  OPINION


                 By the Court, CHERRY, J.:
                             A district court may grant summary judgment sua sponte if it
                 gives the defending party notice and an opportunity to defend. In this
                 case, the district court granted summary judgment to the plaintiff on two
                 claims for relief that were not argued in the summary judgment briefing
                 or in oral argument. The district court did not give notice to the defendant
                 that it intended to do so. We conclude that the district court erred by
                 granting summary judgment on those two causes of action and grant, in
                 part, this petition for a writ of mandamus. We decline to consider the
                 other issues and arguments raised by the parties and therefore deny the
                 remainder of the petition.
                                  FACTS AND PROCEDURAL HISTORY
                             Real party in interest Michael Wiley was injured in a
                 motorcycle accident for which he was not at fault. Wiley was treated for
                 his injuries at Renown Regional Medical Center. Renown did not bill
                 Wiley's health insurance plan administrator, Cigna, for the treatment.
                 Instead, it recorded a hospital lien against Wiley's potential tort recovery.
                 Nevertheless, Wiley sent his medical bills to Cigna. Cigna sent payment
                 to Renown in the amount of the special, discounted rates that Cigna had
                 previously negotiated with Renown. Cigna's discounted rates were set by
                 its provider agreement with Renown in which Cigna agreed to send

                       'The Honorable Kristina Pickering, Justice, did not participate in
                 the decision of this matter.



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                patients to Renown and Renown agreed to provide Cigna and its members
                with discounted rates. Renown did not accept this payment because it
                believed that Cigna did not actually cover injuries caused by a third
                party's negligence.
                            Wiley and the tortfeasor's insurer subsequently reached a
                settlement. The insurer delivered two checks to Wiley. The first was
                made out to Wiley. The second was made out to Renown in the amount of
                Renown's standard, nondiscounted rates in order to satisfy Renown's
                hospital lien. Wiley refused to give the check made out to Renown to
                Renown. He believed that he was entitled to the full settlement payment
                and that Renown should have accepted Cigna's payment as full and final
                instead of recovering via the hospital lien. Because Wiley did not deliver
                the check, Renown did not release its lien. Wiley was later refused a loan
                on account of the outstanding lien.
                            Wiley brought a putative class action against Renown
                regarding its lien practices. Wiley alleged, among other thing's, that
                Renown's lien violated Nevada's hospital lien statutes, NRS 108.590 and
                NRS 449.757, that Renown breached its provider agreement with Cigna,
                and that Renown intentionally interfered with Wiley's policy with Cigna.
                Renown moved for summary judgment, arguing that Wiley's Cigna policy
                did not cover Wiley's treatments, that Wiley could not assert breach of the
                provider agreement because he was not a third-party beneficiary to the
                agreement, and that Renown did not violate NRS 108.590 or NRS 449.757.
                            The district court initially held that there were issues of
                material fact and therefore denied the motion. Renown's arguments,
                however, appear to have concerned entirely legal issues, not factual ones.
                Renown requested a status conference, which the district court granted.

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                      At the status conference, the district court asked that the parties stipulate
                      to the facts relevant to the legal issues raised in Renown's initial motion
                      for summary judgment and then resubmit those issues in cross-motions
                      for summary judgment. 2 The district court wished to resolve, before class
                      discovery, the dispositive, preliminary legal issues, including whether
                      Wiley was a third-party beneficiary who could enforce the provider
                      agreement and whether Wiley's policy covered his injuries. The full
                      merits of Wiley's claims for breach of the provider agreement and
                      intentional interference with his Cigna policy were not at issue in the
                      summary judgment proceedings.
                                    In accordance with the district court's request, Renown filed a
                      second motion for summary judgment, again arguing that Wiley's Cigna
                      policy did not cover Wiley's treatments, that Wiley was not a third-party
                      beneficiary to the provider agreement, and that Renown did not violate
                      MRS 108.590 or NRS 449.757. Wiley also filed a motion for summary
                      judgment, arguing that Renown violated NRS 108.590 and MRS 449.757.
                                    The district court held a hearing on the summary judgment
                      motions and subsequently denied Renown's motion and granted Wiley's
                      motion. The court found, among other things, that Renown's lien practices
                      violated NRS 108.590 and MRS 449.757, that Wiley was a third-party
                      beneficiary to the provider agreement, and that Renown was not
                      permitted to decide whether Wiley's injuries were covered by his Cigna
                      policy. Notably, the court also found in favor of Wiley on his breach of


                            2 The   parties stipulated to a set of hypothetical facts solely for
                      summary judgment purposes. We do not here opine on the propriety of
                      the district court accepting such stipulations.



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                 contract and intentional interference with contract claims, even though
                 the full merits of these claims were not specifically argued in the cross-
                 motions for summary judgment or at the hearing.
                             The district court stayed the remainder of the case so that
                 Renown could seek writ relief in this court. Renown then filed this
                 petition for mandamus relief challenging the district court's order.
                                                DISCUSSION
                             "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." Inel
                 Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179
                 P.3d 556, 558 (2008) (footnote omitted); see NRS 34.160. "Ultimately, the
                 decision to entertain an extraordinary writ petition lies within our
                 discretion." Davis v. Eighth Judicial Dist. Court, 129 Nev.            , 294
                 P.3d 415, 417 (2013). "Neither a writ of mandamus nor a writ of
                 prohibition will issue if the petitioner has a 'plain, speedy and adequate
                 remedy in the ordinary course of law.' Westpark Owners' Ass'n v. Eighth
                 Judicial Dist, Court, 123 Nev. 349, 356,167 P.3d 421, 426 (2007) (quoting
                 NRS 34.170, NRS 34.330). Generally, the availability of appeal after final
                 judgment is considered an adequate and speedy remedy that precludes
                 mandamus relief from orders granting partial summary judgment.         See id.
                 However, we will exercise our discretion to consider petitions for such writ
                 relief when an important area of law needs clarification and judicial
                 economy is served by considering the writ petition.     See id.; see also Int?
                 Game Tech., 124 Nev. at 197-98, 179 P.3d at 559.
                             In this case, the district court granted partial summary
                 judgment in Wiley's favor on his claims for breach of contract and
                 intentional interference with contract. These claims were nowhere
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                mentioned in the six summary judgment briefs. And Wiley did not argue
                his contract claims in the day-long hearing. Whether the district court
                acted appropriately in granting summary judgment on these claims is an
                important issue of law needing clarification and judicial economy is served
                by our consideration of this petition. Int'l Game Tech., 124 Nev. at 197-98,
                179 P.3d at 559. We therefore exercise our discretion to consider that
                portion of this writ petition that concerns the district court's summary
                judgment on claims for which no party sought summary judgment. We
                consider this issue of law de novo, id. at 198, 179 P.3d at 559, and we
                decline to consider the other issues raised in Renown's writ petition.
                            We have previously held that "[although district courts have
                the inherent power to enter summary judgment sua sponte pursuant to
                [NRCP] 56, that power is contingent upon giving the losing party notice
                that it must defend its claim." Soebbing v. Carpet Barn, Inc., 109 Nev. 78,
                83, 847 P.2d 731, 735 (1993). And we have called it "troubling" when a
                district court grants summary judgment sua sponte without having taken
                evidence in the form of affidavits or other documents.           Sierra Nev.
                Stagelines, Inc. v. Rossi, 111 Nev. 360, 364, 892 P.2d 592, 594-95 (1995). A
                district court must not elevate "promptness and efficiency" over fairness
                and due process by entering summary judgment before claims are properly
                before it for decision. Id. at 364, 892 P.2d at 595. Thus, we take this
                opportunity to reiterate that the defending party must be given notice and
                an opportunity to defend itself before a court may grant summary
                judgment sua sponte. See Soebbing, 109 Nev. at 83, 847 P.2d at 735; see
                also Celotex Corp. v. Catrett, 477 U.S. 317, 326 (1986) ("[Dlistrict courts
                are widely acknowledged to possess the power to enter summary
                judgments sua sponte, so long as the losing party was on notice that she

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                    had to come forward with all of her evidence."); Norse v. City of Santa
                    Cruz, 629 F.3d 966, 971-72 (9th Cir. 2010) (same)
                                 Here, without briefing, argument, or even notice, the district
                    court granted summary judgment in favor of Wiley on his contract claims.
                    This amounts to the type of sua sponte summary judgment of which this
                    court and federal courts have disapproved. We therefore conclude that the
                    district court erred in granting summary judgment on Wiley's fifth and
                    eighth causes of action for breach of contract and intentional interference
                    with contract, respectively. Accordingly, we grant Renown's petition, in
                    part, and order the clerk of this court to issue a writ of mandamus
                    directing the district court to vacate that portion of its order granting
                    summary judgment to Wiley on his fifth and eighth causes of action. We
                    decline to consider the other issues and arguments presented in Renown's
                    writ petition and therefore deny the remainder of the petition. Davis, 129
                    Nev. at , 294 P.3d at 417.




                    We concur:


                                                C.J.                    cc,t   441\
                                                              Hardesty


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