                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                JAMES R. AYMANN,                                        No: 65292
                Appellant,
                vs.
                JOHN PETER LEE, LTD.; FREDERICK
                WAID, PERSONAL REPRESENTATIVE
                OF JOHN PETER LEE, DECEASED;
                                                                            FILED
                PAUL C. RAY, PROFESSIONALLY AND                             JUL 1 3 2016
                INDIVIDUALLY; AND YVETTE
                FREEDMAN,
                Respondents.

                                    ORDER AFFIRMING IN PART,
                                REVERSING IN PART AND REMANDING
                            This is a pro se appeal from a district court order granting a
                motion to dismiss an attorney malpractice action. Eighth Judicial District
                Court, Clark County; Kerry Louise Earley, Judge.
                            Appellant James R. Aymann retained respondents as his
                attorneys in previous litigation. The dismissal of that litigation was
                appealed to this court in Docket No. 66774 on October 17, 2014, and the
                appeal was resolved on December 21, 2015.
                            While the underlying litigation was pending, appellant filed
                the instant action against respondents, alleging, among other things,
                malpractice, various other torts and fraud based on the attorney/client
                relationship, and elder abuse. Respondents moved to dismiss the
                malpractice action, and the district court dismissed appellant's first,
                second, fourth, fifth, and sixth causes of action for, respectively, fraudulent
                concealment, fraudulent misrepresentation, tortious breach of the implied
                covenant of good faith and fair dealing, fraud in the inducement, and civil
                conspiracy for failure to state a claim and/or failure to plead fraud with

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                sufficient specificity.    See NRCP 9(b). The district court dismissed the
                remaining causes of action under NRS 11.207(1), the two-year statute of
                limitations governing attorney malpractice actions. This appeal followed.
                The causes of action dismissed for failure to state a claim
                             We review "de novo a district court's order granting a motion
                to dismiss, and such an order will not be upheld unless it appears beyond
                a doubt that the plaintiff could prove no set of facts . . . [that] would entitle
                him [or her] to relief."    Moon v. McDonald, Carano & Wilson LLP, 129
                Nev., Adv. Op. 56, 306 P.3d 406, 408 (2013) (alterations in original,
                quotation marks omitted). We have considered appellant's arguments
                concerning the first, second, fourth, fifth, and sixth causes of action in
                light of this standard, and we affirm the district court's dismissal of those
                causes of action.    See JA. Jones Constr. Co. v. Lehrer McGovern Bovis,
                Inc., 120 Nev. 277, 290-91, 89 P.3d 1009, 1018 (2004) (fraud in the
                inducement); Dow Chem. Co. v. Mahlum, 114 Nev. 1468, 1485, 970 P.2d
                98, 110 (1998) (fraudulent concealment), overruled in part on other
                grounds by GES, Inc. v. Corbitt, 117 Nev. 265, 271, 21 P.3d 11, 15 (2001);
                Consol. Generator—Nev., Inc. v. Cummins Engine Co., 114 Nev. 1304, 1311,
                971 P.2d 1251, 1256 (1998) (civil conspiracy); Barmettler v. Reno Air, Inc.,
                114 Nev. 441, 446-47, 956 P.2d 1382, 1386 (1998) (fraudulent
                misrepresentation); Great Am. Ins. Co. v. Gen. Builders, Inc., 113 Nev.
                346, 354-55, 934 P.2d 257, 263 (1997) (tortious breach of the implied
                covenant of good faith and fair dealing).
                The causes of action dismissed under the attorney malpractice statute of
                limitations
                             As to the district court's dismissal of the remaining causes of
                action under NRS 11.207(1), that statute sets forth the limitations period
                for legal malpractice claims. The limitations period, however, may be
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                  tolled by the litigation malpractice tolling rule, which provides that, in the
                  context of litigation-based malpractice, "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). If an appeal is filed, the action is
                  not deemed resolved until the appeal is decided. Id.
                              The district court, however, implicitly applied the continuous
                  representation rule, under which 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 effect of this rule in the litigation context would be to cut off
                  the tolling period permitted by the litigation malpractice rule. And in
                  practice, malpractice actions brought to comply with the continuous
                  representation rule are often stayed while the underlying litigation
                  proceeds so that damages can be determined.         See VanSickle v. Kohout,
                  599 S.E.2d 856, 861 (W. Va. 2004) (noting that malpractice actions
                  brought before the resolution of the underlying litigation may need to be
                  stayed in order to await a determination of the malpractice plaintiffs
                  damages, if any). To avoid the necessity of filing a malpractice action
                  prior to the determination of damages, we decline to adopt the continuous
                  representation rule in the litigation context and continue to apply the
                  litigation malpractice tolling rule.
                              In this case, appellant's appeal in the underlying action was
                  not resolved until December 21, 2015. Accordingly, the malpractice-based
                  causes of action were tolled until that date, and dismissing those causes of
                  action on April 15, 2014, was premature. We therefore reverse the district
                  court's dismissal of the third, seventh, eighth, and ninth causes of action

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                based on NRS 11.207, and remand this matter to the district court for
                further proceedings.'
                            It is so ORDERED.




                                                            Gibbons




                cc: Hon. Kerry Louise Earley, District Judge
                     James R. Aymann
                     John Peter Lee, Ltd.
                     Paul C. Ray, Chtd.
                     Yvette Y. Freedman
                     Eighth District Court Clerk




                      'Respondent Yvette Freedman argues that appellant's malpractice
                action against her is not based on the underlying litigation, and thus, as to
                her, the malpractice action is time barred or otherwise fails to state a
                claim. Freedman, however, did not raise these arguments in the district
                court and the district court did not baseS its dismissal order on these
                arguments. Accordingly, we decline to consider them on appeal, without
                prejudice to Freedman's ability to raise these arguments in the district
                court. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981,
                983 (1981) (noting that this court generally will not consider on appeal
                arguments that were not made to the district court).


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