                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                  PUBLIC EMPLOYEES' RETIREMENT                         No. 64987
                  SYSTEM, A/K/A PERS, AN ENTITY;
                  AND CITY OF LAS VEGAS, AN
                  ENTITY,
                  Appellants/Cross-Respondents,
                  vs.                                                     FILED
                  TONI L. HARPER, AS REAL PARTY IN
                  INTEREST IN PLACE OF CURTIS                              JUN 1 0 2016
                  HARPER, AN INDIVIDUAL; STEVEN
                  BREEN, AN INDIVIDUAL; CHARLES
                  PULSIPHER, AN INDIVIDUAL; AND
                  MARK FLEISCHMANN, AN
                  INDIVIDUAL,
                  Respondents/Cross-Appellants.

                        ORDER AFFIRMING IN PART, REVERSING IN PART, AND
                                          REMANDING

                             This is an appeal and cross-appeal from a district court
                  judgment in a tort action concerning public employee retirement benefits.
                  Eighth Judicial District Court, Clark County; Gloria Sturman, Judge.
                             Respondents were employed by the City of Las Vegas
                  Department of Fire and Rescue and are members of the Public Employees'
                  Retirement System of Nevada (PERS). PERS provides retirement
                  information and counseling to all PERS members. PERS also provides
                  calculations and estimates for various retirement scenarios based on the
                  amount of eligible compensation reported by public employers on behalf of
                  PERS members.
                              Statutorily, "call-back" pay is not compensable while overtime
                  pay is compensable. The City of Las Vegas (the City) and PERS
                  maintained differing definitions of "call-back" pay. As a result, the City
                  sent inaccurate compensation information to PERS and made excess
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                contributions to PERS on behalf of respondents while they were employed
                by the City.
                               PERS conducted an initial audit of the City, which revealed
                the inaccurate reporting of "call-back" pay. PERS conducted a subsequent
                audit directed at the Department of Fire and Rescue that revealed the
                City's overpayments and misreporting of "call-back" time on behalf of
                respondents. PERS instructed the City to make adjustments to the
                compensation reports from July 2004 forward.
                               Prior to and during the audit, PERS counseled respondents
                regarding their projected retirement benefits and provided written
                retirement estimates to respondents. These estimates were based on the
                inaccurate compensation information and overpayments provided by the
                City. PERS did not inform respondents of the ongoing and pending audits.
                As a result of the audits, PERS reduced respondents' retirement benefits
                to compensate for the City's inaccurate compensation reporting.
                               Respondents initiated this action alleging breach of contract,
                negligent misrepresentation, breach of fiduciary duty, and statutory
                claims against PERS. Respondents also alleged negligent
                misrepresentation claims and statutory claims against the City. As the
                parties are familiar with the facts, we do not recount them further except
                as necessary to our disposition.
                               The district court determined that PERS was liable under
                NRS 286.288 and for negligent misrepresentation and breach of fiduciary
                duty. Additionally, the district court concluded that the City was liable for
                negligent misrepresentation. •The City and PERS timely appealed and
                respondents cross-appealed the district court's judgment.
                               On appeal, PERS argues that the district court: (1) erred in
                finding that PERS is liable to respondents under NRS 286.288, (2) erred in
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                  concluding that PERS is liable to respondents for negligent
                  misrepresentation, (3) erred in concluding that PERS is liable for breach of
                  fiduciary duty, and (4) abused its discretion by awarding speculative
                  future damages. Additionally, the City argues the district court erred in
                  finding that the City was liable for negligent misrepresentation. On cross-
                  appeal, respondents argue that the district court erred in determining that
                  NRS 286.460(7) cannot be applied retroactively to the City's inaccurate
                  reporting and overpayments on their behalf and that PERS is not liable
                  for breach of contract.
                                 For the reasons stated below, we reverse the district court's
                  order as to PERS's liability and affirm it as to the City's liability. We
                  further conclude that the district court abused its discretion by awarding
                  speculative future damages.
                  The district court erred in concluding that PERS is liable under NRS
                  286.288
                             •   PERS first argues the district court erred in finding PERS
                  liable under NRS 286.288. We agree. "We review questions of statutory
                  construction de novo, and we will not disturb the lower court's findings of
                  fact when those findings are supported by substantial evidence."     Ransdell

                  v. Clark Cty., 124 Nev. 847, 854, 192 P.3d 756, 761 (2008).
                                 NRS 286.288 states:
                                 Each participating public employer or group of
                                 such employers shall select an employee as liaison
                                 officer to certify records and coordinate matters
                                 pertaining to retirement between the System and
                                 members or participating public employers. The
                                 System is responsible for any inaccurate or
                                 misleading information provided to any person or
                                 agency by an officer or employee of the System but
                                 is not responsible for inaccurate or misleading
                                 information provided by an officer or employee of a
                                 participating public employer or any other person.
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                (Emphasis added.)
                            Here, the district court found that PERS failed to inform
                respondents of the potential benefits decrease in counseling sessions and
                in the benefits estimates. The district court determined that NRS 286.288
                expressly holds PERS liable for its own misleading information and
                omissions. Under the plain language of NRS 286.288, PERS is not
                responsible for the inaccurate or misleading information provided by the
                City or for failing to inform respondents of the pending audit. Thus, we
                conclude that the district court erred in holding that PERS is liable for the
                City's inaccurate reporting under NRS 286.288.
                The district court erred in finding PERS               liable for negligent
                misrepresentation
                            PERS next argues that the district court erred in concluding
                that PERS is liable for negligent misrepresentation. We agree. Whether
                PERS made false misrepresentations and respondents justifiably relied on
                them are questions of fact. See Epperson v. Roloff, 102 Nev. 206, 210-11,
                719 P.2d 799, 802 (1986). "[T]he district court's findings of fact will not be
                disturbed on appeal if they are supported by substantial evidence. The
                district court's conclusions of law, however, are reviewed de novo." Bedore
                v. Familian, 122 Nev. 5, 9-10, 125 P.3d 1168, 1171 (2006).
                            Here, the district court concluded that respondents justifiably
                relied on the estimates and information PERS provided, that PERS's
                estimates are factual in nature, and that employees may reasonably rely
                on PERS's estimates under Nevada Public Employees Retirement Board v.
                Byrne, 96 Nev. 276, 607 P.2d 1351 (1980).' We conclude that respondents


                      'The district court's reliance on Byrne is misplaced. First, the
                district court attributes to this court the statement that reliance on
                                                                continued on next page . . .
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                did not justifiably rely on PERS's estimates and that PERS had no duty to
                inform respondents of ongoing or pending audits. Nelson v. Heer, 123 Nev.
                217, 225, 163 P.3d 420, 426 (2007) C[T]he suppression or omission of a
                material fact which a party is bound in good faith to disclose is equivalent
                to a false representation." (internal quotation marks omitted));    see also
                Collins v. Burns, 103 Nev. 394, 397, 741 P.2d 819, 821 (1987) (stating that
                "[a] Mack of justifiable reliance bars recovery" for misrepresentation).
                Therefore, we reverse the district court's conclusion that PERS was liable
                for negligent misrepresentation.
                The district court erred in concluding that PERS was liable for breach of
                fiduciary duty
                             PERS argues that the district court erred in concluding that
                PERS was liable for breach of fiduciary duty. We agree. This court will
                not set aside a district court' factual findings unless they are clearly
                erroneous or not supported by substantial evidence. Sowers v. Forest Hills
                Subdivision, 129 Nev., Adv. Op. 9, 294 P.3d 427, 432 (2013). Substantial
                evidence is evidence that a reasonable mind might accept as adequate to

                . . . continued

                PERS's representations is both detrimental and reasonable. However,
                that statement was a mere recitation of the lower court's findings in
                Byrne. 96 Nev. at 279, 607 P.2d at 1353. Further, in Byrne, PERS
                mistakenly overestimated an employee's retirement benefit after
                providing benefit estimates expressly to "enable [the employee] to plan
                [his] future retirement." Id. at 278, 607 P.2d at 1352. Here, PERS
                provided accurate estimates based on the inaccurate information provided
                by the City. Additionally, in Byrne, this court merely rejected PERS's
                argument that an employee could not reasonably rely on the PERS Board's
                representations because they were estimates or opinions and because
                PERS had inherent statutory authority to correct its mistakes. Id. at 279,
                607 P.2d at 1353.


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                     support a conclusion.   Mason-McDuffie Real Estate, Inc. v. Villa Fiore
                     Dev., LLC, 130 Nev., Adv. Op. 83, 335 P.3d 211, 214 (2014). However, this
                     court reviews a district court's conclusions of law de novo.    Grosjean v.
                     Imperial Palace, Inc., 125 Nev. 349, 359, 212 P.3d 1068, 1075 (2009).
                                  Here, PERS had no duty to disclose the active or pending
                     audits to respondents and took adequate steps to provide accurate
                     estimates.   Byrne, 96 Nev. at 280, 607 P,2d at 1353 CIA] governmental
                     body, charged with as important a functionS as the administration of a
                     public employees retirement system, bears a most stringent duty to
                     abstain from giving inaccurate or misleading advice."). Additionally,
                     PERS did not commit tortious conduct such that it breached a fiduciary
                     duty to respondents. Stalk v. Mush/gin, 125 Nev. 21, 28, 199 P.3d 838, 843
                     (2009) ("[A] breach of fiduciary duty claim seeks damages for injuries that
                     result from the tortious conduct of one who owes a duty to another by
                     virtue of the fiduciary relationship."). Therefore, we reverse the district
                     court's determination that PERS was liable for breach of fiduciary duty.
                     The district court did not err in finding the City liable for negligent
                     misrepresentation
                                  The City argues that its overpayment of PERS contributions
                     and misreporting of "call-back" time are not sufficient to support
                     respondents' claim of negligent misrepresentation. We disagree.
                                  The district court's finding that the City negligently
                     misrepresented information when it misreported "call-back" time and
                     made overpayments to PERS on behalf of respondents is supported by
                     substantial evidence. The district court did not find that the City made
                     any direct misrepresentation to the respondents. However, the district
                     court correctly determined that the relationship between the City and
                     PERS is sufficient to trigger liability for negligent misrepresentation for
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                   misreporting "call-back" time to PERS on behalf of respondents.
                   Epperson, 102 Nev. at 212, 719 P.2d at 803 (IA] party may be held liable
                   for misrepresentation where he communicates misinformation to his
                   agent, intending or having reason to believe •that the agent would
                   communicate the misinformation to a third party."). Additionally, the City
                   provided this information in the course of its business and had a pecuniary
                   interest in respondents' retirement and employment decisions sufficient to
                   trigger liability for negligent misrepresentation.        See   Restatement
                   (Second) of Torts § 552(1) (Am Law Inst. 1977) ("One who, in the course of
                   his business . . . or in any transaction in which he has a pecuniary
                   interest, supplies false information for the guidance of others in their
                   business transactions, is subject to liability for pecuniary loss caused to
                   them by their justifiable reliance upon the information, if he fails to
                   exercise reasonable care or competence in obtaining or communicating the
                   information."). Therefore, we affirm the district court's determination that
                   the City is liable for negligent misrepresentation.
                   The district court abused its discretion in awarding future damages
                               The City argues that the district court erred by awarding
                   future damages because respondents failed to provide the court with an
                   adequate evidentiary basis to properly determine the amount of damages.
                   The City contends that, because respondents failed to present evidence of
                   the present value of their lifetime benefits and their relative life
                   expectancies, there was insufficient evidence for the district court to make
                   its determination regarding future damages. We agree.
                               A district court is given wide discretion in calculating an
                   award of damages and an award will not be disturbed on appeal absent an
                   abuse of discretion. Flamingo Realty, Inc. v. Midwest Dev., Inc., 110 Nev.
                   984, 987, 879 P.2d 69, 71 (1994).
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                                    The plaintiff has the burden to prove the amount of damages
                      it is seeking. Clark Cty. Sch. Din. v. Richardson Constr., Inc., 123 Nev.
                      382, 397, 168 P.3d 87, 97 (2007). The plaintiff must provide the court with
                      "an evidentiary basis for determining a reasonably accurate amount of
                      damages." Mort Wallin of Lake Tahoe, Inc. v. Commercial Cabinet Co.,
                      105 Nev. 855, 857, 784 P.2d 954, 955 (1989).
                                    We conclude that the district court's determination of damages
                      is not supported by substantial evidence. We further conclude that the
                      district court abused its discretion by failing to consider mortality tables
                      when awarding damages based on the life expectancies of respondents. To
                      determine damages, the district court merely considered respondents'
                      alleged past damages and the monthly amount of future damages when
                      concluding that each of the respondents' damages "will exceed the
                      statutory cap of $75,000" under NRS 41.035. 2 It is important to note that
                      because the district court determined that each of the respondents is
                      entitled to receive the full $75,000 statutory cap from both PERS and the
                      City, the district court implicitly concluded that each respondent's
                      damages exceed $150,000. 3 Other than the birth dates listed on the PERS



                            2 The•version of NRS 41.035 in existence at the time of the
                      misreporting provided for a maximum damages award of $75,000 per
                      claimant. The current version provides for a maximum damages award of
                      $100,000 per claimant. 2007 Nev. Stat., ch. 512, §§ 3.3, 3.5 at 3024-25.

                            3 0nappeal PERS argued that the district court erred by awarding
                      damages in excess of the statutory cap under NRS 41.035 because the
                      statutory cap applies on a per person per claim basis, regardless of the
                      number of government actors involved. However, the statutory cap in
                      NRS 41.035 is no longer implicated against multiple government actors,
                      as we have reversed the district court's findings of liability as to PERS.


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                estimates provided to respondents, there is nothing in the record
                discussing the relative probability that each of the respondents will live
                long enough to reach the statutory cap of $75,000 per claim. We therefore
                conclude that the district court's award of future damages is not supported
                by substantial evidence. 4
                             Accordingly, we
                             ORDER the judgment of the district court AFFIRMED IN
                PART AND REVERSED IN PART AND REMAND this matter to the
                district court for proceedings consistent with this order. 5




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                      4 0n remand, we instruct the district court to develop an adequate
                evidentiary basis for the respondents' award of future damages consistent
                with this order.

                      5 We have considered the parties' remaining arguments and conclude
                that they are without merit.


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                cc: Hon. Gloria Sturman, District Judge
                     Lansford W. Levitt, Settlement Judge
                     Las Vegas City Attorney
                     Woodburn & Wedge
                     Garman Turner Gordon
                     Eighth Judicial District Court Clerk




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