author: By the Court, SILVER, J.:

text:
    Tae-Si KIM, an Individual; and Jin-Sung Hong, an Individual, Appellants, v. DICKINSON WRIGHT, PLLC, a Nevada Professional Limited Liability Company; Jodi Donetta Lowry, Esq., an Individual; Jonathan M.A. Salls, Esq., an Individual; Eric Dobberstein, Esq., an Individual; and Michael G. Vartanian, Esq., an Individual; Respondents.
    No. 74803
    Supreme Court of Nevada.
    FILED JUNE 13, 2019
    Brandon L. Phillips, Attorney at Law, PLLC, and Brandon L. Phillips, Las Vegas, for Appellants.
    Morris Law Group and Steve L. Morris and Ryan M. Lower, Las Vegas, for Respondents.
    BEFORE THE COURT EN BANC.

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

   By the Court, SILVER, J.:

This case allows us to clarify the interplay between Nevada's litigation malpractice tolling rule and 28 U.S.C. § 1367(d) (2012), a federal tolling statute, on a legal malpractice claim. We first address the application of § 1367(d), which tolls the statute of limitations for a state-law claim joined with a federal claim under supplemental jurisdiction while the state-law claim is pending in federal court, and for at least 30 days after the state-law claim's dismissal from federal court. We clarify that § 1367(d) distinguishes between an "action" and a "claim," and thus, the state-law claim's dismissal is sufficient to end the federal tolling period. Finally, we reaffirm our prior holdings that the litigation malpractice tolling rule does not apply to non-adversarial proceedings.

Because 28 U.S.C. § 1367(d) tolled claims brought by appellants Tae-Si Kim and Jin-Sung Hong (collectively, Kim) only until the claims were dismissed, we hold that the district court erred by finding that Kim's claims against Charles M. Damus, Esq., were tolled until the remaining claims in the federal action were also dismissed. Furthermore, because the litigation malpractice tolling rule does not apply to the claims against Damus, Kim's claims against Damus potentially became barred by the statute of limitations during respondents' representation of Kim. Since the litigation malpractice tolling rule does apply to the claims against respondents, we further hold that the district court erred by finding that Kim's claims against respondents were timed-barred by Nevada's statute of limitations for legal malpractice claims.

FACTS AND PROCEDURAL HISTORY

Kim hired Damus to handle a real property dispute in December 2008. Damus failed to file a complaint to protect Kim's interest in the property, and the property was foreclosed on. Kim fired Damus in September 2009. One month prior to firing Damus, Kim hired the law firm of Gibson Lowry Burris LLP (the Gibson firm) to also pursue claims related to the property dispute. Under the Gibson firm's representation, Kim filed a complaint regarding the property in Nevada's federal district court. Kim later amended the complaint on March 2, 2010, to include claims against Damus for legal malpractice, negligent undertaking to perform services, and unjust enrichment for his failure to file a complaint stopping the foreclosure of the property. During this time, respondent Dickinson Wright, PLLC, absorbed the Gibson firm. Damus filed a motion to dismiss the claims against him for lack of subject matter jurisdiction, which the federal court granted on December 6, 2010.

Kim entered into an amended and restated legal services agreement with Dickinson Wright, during which time Kim's federal action was still ongoing. More than three years later, Kim emailed a Dickinson Wright attorney asking whether the Gibson firm had previously filed Kim's malpractice claims against Damus in state court. The attorney responded that the Gibson firm had not filed a state action against Damus, that Dickinson Wright would not do so because it was terminating its representation of Kim, and that Kim should contact other counsel if they wished to pursue such claims. The federal district court dismissed the remaining federal claims with prejudice on September 4, 2015.

Kim filed a malpractice complaint in state court against Dickinson Wright on June 12, 2017. Kim argued that Dickinson Wright failed to sue Damus in state court and thereafter allowed the statute of limitations on those claims to run. Kim argued that 28 U.S.C. § 1367(d) only tolled the claims against Damus until the federal court dismissed the claims and, therefore, the statute ran during the firm's representation. Kim also argued that Nevada's litigation malpractice tolling rule did not apply to the claims against Damus, such that those claims are now barred, but it did apply to toll the claim against Dickinson Wright during the federal litigation, and therefore, the claim against Dickinson Wright was not time-barred. Conversely, Dickinson Wright argued that § 1367(d) and Nevada's litigation malpractice tolling rule tolled Kim's claims against Damus until the federal action ended and, therefore, Kim had plenty of time to sue the attorney but let the statute of limitations run. Further, Dickinson Wright argued that Kim's malpractice claim against it was time-barred.

The district court granted the motion to dismiss, finding that (1) 28 U.S.C § 1367(d) tolled the statute of limitations on any state action against Damus until September 4, 2015, when the federal action was dismissed, so Kim could have brought suit then as advised by Dickinson Wright; (2) under Nevada's litigation malpractice tolling rule, Kim's legal malpractice claim against Damus did not accrue until the end of the federal action when damages were certain; and (3) Kim's claim against Dickinson Wright was time-barred under NRS 11.207. Kim appealed.

DISCUSSION

We rigorously review an order granting an NRCP 12(b)(5) motion to dismiss, recognizing all factual allegations in the complaint as true and drawing all inferences in the plaintiffs' favor, and reviewing all legal conclusions de novo. Buzz Stew , LLC v. City of N. Las Vegas , 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008). "A complaint should only be dismissed for failure to state a claim if it appears beyond a doubt that it could prove no set of facts, which, if true, would entitle it to relief." Szymborski v. Spring Mountain Treatment Ctr. , 133 Nev. 638, 641, 403 P.3d 1280, 1283 (2017) (internal quotation marks omitted).

I.

Kim first argues that 28 U.S.C. § 1367(d) does not apply to the claims against Damus, and thus, the statute of limitations ran on those claims during Dickinson Wright's representation. Conversely, Dickinson Wright argues that § 1367(d)"stop[s] the clock," Artis v. District of Columbia , 583 U.S. ----, ----, 138 S. Ct. 594, 598, 199 L.Ed.2d 473 (2018), on a state-law claim's statute of limitations once it is filed in federal court, and that the clock does not begin to run until the entire federal action is dismissed, even if the state-law claim is dismissed earlier in the litigation.

We review statutory construction issues de novo. I. Cox Constr, Co., LLC v. CH2 Invs., LLC , 129 Nev. 139, 142, 296 P.3d 1202, 1203 (2013). In doing so, we will apply a statute's plain language "and construe the statute according to its fair meaning." Id.

28 U.S.C. § 1367(d) states the following:

The period of limitations for any claim asserted under [supplemental jurisdiction], and for any other claim in the same action that is voluntarily dismissed at the same time as or after the dismissal of the claim under [supplemental jurisdiction], shall be tolled while the claim is pending and for a period of 30 days after it is dismissed unless State law provides for a longer tolling period.

The statute's plain language distinguishes between the word "claim" and "action" in the phrase "any other claim in the same action." 28 U.S.C. § 1367(d). Thus, § 1367(d) 's language makes clear that it does not toll the relevant statute of limitations while the action is pending, but instead only tolls the relevant statute of limitations "while the [state-law] claim is pending." Id. (emphasis added). A federal court's dismissal of a state-law claim, rather than dismissal of an entire action, therefore, triggers the running of the relevant statute of limitations. See 2A Norman J. Singer & Shambie Singer, Statutes and Statutory Construction § 46:1 (7th ed. 2014) (providing that courts consider a statute's "natural and ordinary signification and if there is no ambiguity or obscurity in its language, there will usually be no need to look elsewhere to ascertain intent" (internal quotation marks omitted)).

Further, the United States Supreme Court has explained that § 1367(d) tolls the statute of limitations period while a supplemental claim is pending in federal court, see Jinks v. Richland Cty., S.C. , 538 U.S. 456, 459, 123 S.Ct. 1667, 155 L.Ed.2d 631 (2003), and in another case that "it suspends the statute of limitations [both] while the claim is pending in federal court and for 30 days postdismissal," Artis , 583 U.S. at ----, 138 S. Ct. at 603 (emphasis added). Neither case provides that the statute of limitations on a dismissed state-law claim is tolled while the entire action is pending. Therefore, we conclude that, pursuant to § 1367(d), the statute of limitations for a state-law claim filed in federal court stops running only while the claim is pending in federal court and for 30 days after the state-law claim's dismissal.

Kim fired Damus in September 2009 and then filed the claims in federal court against Damus under supplemental jurisdiction on March 2, 2010, and the federal court dismissed these claims on December 6, 2010. Pursuant to 28 U.S.C. § 1367(d), the statute of limitations for Kim's claims against Damus was tolled only from March 2, 2010, until December 6, 2010, plus 30 days. Thereafter, the statute of limitations began running again. Accordingly, the district court erred by finding that the relevant statute of limitations was tolled until September 4, 2015, the date the federal court dismissed the remainder of Kim's federal action.

II.

Next, Kim argues that the district court erred by finding that the litigation malpractice tolling rule applied to the claims against Damus because there was no underlying suit on which to base the tolling. Kim further argues that the rule applies to the claim against Dickinson Wright, and therefore, the district court erred in concluding that the claim was time-barred. Conversely, Dickinson Wright argues that, under Brady, Vorwerck, Ryder & Caspino v. New Albertson's, Inc. , 130 Nev. 632, 333 P.3d 229 (2014), and Semenza v. Nevada Medical Liability Insurance Co. , 104 Nev. 666, 765 P.2d 184 (1988), Kim's malpractice claim against Damus could not be filed until damages were certain, which would occur when the federal action ended. Furthermore, Dickinson Wright argues that Kim's legal malpractice claim against it is time-barred under NRS 11.207(1).

NRS 11.207(1) provides the limitations period for legal malpractice claims:

An action against an attorney ... to recover damages for malpractice, whether based on a breach of duty or contract, must be commenced within 4 years after the plaintiff sustains damage or within 2 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the material facts which constitute the cause of action, whichever occurs earlier.

Nevada has adopted a special tolling rule, however, for when the malpractice is alleged to have occurred during an attorney's representation of a client in active litigation, aptly named the litigation malpractice tolling rule. Branch Banking , 134 Nev. at ----, 432 P.3d at 738 ("As its name suggests, the litigation malpractice tolling rule applies to malpractice committed by a lawyer while representing a client in a lawsuit."). Thus, the tolling rule does not apply to non-adversarial or transactional representation, and it does not apply before the attorney files a complaint.

See Moon v. McDonald, Carano & Wilson LLP , 129 Nev. 547, 552, 306 P.3d 406, 409-10 (2013). Instead, the litigation malpractice tolling rule applies to the two-year discovery rule, serving to toll a malpractice claim's statute of limitations until the underlying litigation is resolved and damages are certain. Branch Banking , 134 Nev. at ----, 432 P.3d at 738-40 (discussing that the rule's purpose is to ensure that plaintiffs do not prematurely file malpractice claims because, if a party appeals from the final order of a case wherein the malpractice was alleged to occur, any resulting damages may be reduced or resolved by the appellate court's decision); Brady , 130 Nev. at 642, 333 P.3d at 235 ("When the litigation in which the malpractice occurred continues to progress, the material facts that pertain to the damages still evolve as the acts of the offending attorney may increase, decrease, or eliminate the damages that the malpractice caused.").

Here, Kim fired Damus before they filed a complaint, and so Damus did not represent Kim in an adversarial proceeding. Therefore, the litigation malpractice tolling rule does not apply to Kim's claims against Damus, and the district court erred in that conclusion. Because the district court's dismissal order was based in part on this erroneous conclusion, we must reverse and remand this case to the district court for it to determine whether Kim's malpractice claims against Dickinson Wright are still subject to dismissal in light of the fact that Kim's claims against Damus possibly became time-barred under NRS 11.207(1) while Dickinson Wright was representing Kim, unless the claim against Dickinson Wright itself is time-barred.

The litigation malpractice tolling rule does apply to Kim's claim against Dickinson Wright. The firm represented Kim in an adversarial proceeding-the federal action-and allegedly committed legal malpractice during those proceedings by failing to file in state court legal malpractice claims against Damus before the statute of limitations expired. Regardless of when Kim discovered the alleged malpractice, the malpractice claim was tolled until the end of those federal proceedings, pursuant to the litigation malpractice tolling rule. See Branch Banking , 134 Nev. at ----, 432 P.3d at 738. Unlike the federal statute, which distinguishes between claims and actions, the Nevada litigation malpractice tolling rule does not. The federal action ended, and the statute of limitations began running, on September 4, 2015, and, at the earliest, the statute of limitations would have run two years later in September 2017. Kim filed the state claim against Dickinson Wright on June 12, 2017, within either the two-year or four-year statutory period for legal malpractice claims. Therefore, we conclude that Kim's district court case was not time-barred, and the district court erred in dismissing the case on that basis.

CONCLUSION

28 U.S.C. § 1367(d) tolls the statute of limitations for a state-law claim filed in federal court under supplemental jurisdiction while the state-law claim is pending in federal court and for at least 30 days after the state-law claim's dismissal , regardless of the continuation or dismissal of other claims in that action. Thus, the federal court's dismissal of Kim's state-law claims against Damus is what triggered the relevant statute of limitations to continue running, and the district court's conclusion that the statute of limitations did not continue running until the entire federal action was dismissed was erroneous. Furthermore, the district court erred in concluding that the litigation malpractice tolling rule applied to Kim's claims against Damus-Damus never represented Kim in an adversarial proceeding, and the tolling rule therefore does not apply. Based on these conclusions, the statute of limitations for Kim's claims against Damus may have lapsed during Dickinson Wright's representation of Kim, supporting Kim's malpractice claim against Dickinson Wright. Finally, we hold that Nevada's litigation malpractice tolling rule applies to Kim's malpractice claim against Dickinson Wright and, therefore, the district court erred in concluding that Kim's claim was time-barred by NRS 11.207(1). Accordingly, we reverse the district court's order of dismissal and remand for further proceedings on hum's claim consistent with this opinion.

We concur:

Gibbons, C.J.

Hardesty, J.

Parraguirre, J.

Stiglich, J.

Cadish, J.

      While the parties refer to the tolling rule as the "litigation tolling rule," our caselaw consistently calls it the "litigation malpractice tolling rule." See Branch Banking & Tr. Co. v. Gerrard , 134 Nev. ----, 432 P.3d 736, 738 (2018). Accordingly, we use the latter term throughout this opinion.

      The district court found that Dickinson Wright informed Kim of the tolling statute in the July 2015 email, which Kim does not dispute on appeal.

      The district court also found that Dickinson Wright's exercise of professional judgment was not actionable. We decline to address that finding on appeal-except to note that Nevada does not currently recognize the attorney judgment rule-as Kim did not oppose this argument in their opposition to Dickinson Wright's motion to dismiss and because they do not cogently argue it on appeal. Edwards v. Emperor's Garden Rest. , 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (providing that this court need not consider arguments not adequately briefed, supported by relevant authority, or cogently argued); Old Aztec Mine, Inc. v. Brown , 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the trial court, unless it goes to the jurisdiction of that court, is deemed to have been waived and will not be considered on appeal."). Additionally, the district court also denied reconsideration in this case; however, because we reverse and remand, we need not reach this issue here.

      While Kim focuses on the litigation malpractice tolling rule in the opening brief and does not address the federal statute until the reply brief, we analyze this issue "in the interests of justice," Powell v. Liberty Mut. Fire Ins. Co. , 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011), and in consideration of our policy of resolving cases on the merits whenever possible, Huckabay Props., Inc. v. NC Auto Parts, LLC , 130 Nev. 196, 203, 322 P.3d 429, 433 (2014) (explaining that this court prefers to decide cases on the merits).

      Dickinson Wright does not dispute that Kim had valid claims for legal malpractice against Damus.


source: Caselaw Access Project

license: Public Domain

text:
    Jack BA NKA, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Carolyn Ellsworth, District Judge, Respondents, and The State of Nevada, Real Party in Interest.
    No. 79014
    Supreme Court of Nevada.
    FILED JUNE 24, 2019
    DENIED.


text:
    Grant MCCANDLESS, Appellant, v. Sara ANDERSON, Respondent.
    No. 78875
    Supreme Court of Nevada.
    FILED JUNE 21, 2019
    DISMISSED.


text:
    James Russell LIZZIO, an Individual, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Stefany Miley, District Judge, Respondents, and Carlos Chavez-Belmonte, an Individual, Real Party in Interest.
    No. 78672
    Supreme Court of Nevada.
    FILED JUNE 17, 2019
    DENIED.


text:
    Erick Marquis BROWN, Appellant, v. Brian SANDOVAL; Governor of the State of Nevada; and the State of Nevada, Respondents.
    Erick Marquis Brown, Appellant, v. Brian Sandoval; Governor of the State of Nevada; and the State of Nevada, Respondents.
    No. 78820 No. 78821
    Supreme Court of Nevada.
    FILED JUNE 24, 2019
    DISMISSED.


text:
    PREMIER ONE HOLDINGS, INC., Appellant, v. BANK OF AMERICA, N.A., a National Banking Association, Respondent.
    No. 77979
    Supreme Court of Nevada.
    FILED JUNE 18, 2019
    Dismissed.


text:
    Ronald WILLIAMS; and Jann G. Williams, Petitioners, v. NEVADA COMMISSION ON JUDICIAL DISCIPLINE, Respondent.
    No. 78690
    Supreme Court of Nevada.
    FILED JUNE 17, 2019
    DENIED.


text:
    Juan RODRIGUEZ, Appellant, v. The STATE of Nevada, Respondent.
    No. 75542
    Supreme Court of Nevada.
    FILED JUNE 17, 2019
    REVERSED. REMAND.


text:
    Tanya PATTERSON-BAGGETT, Appellant, v. Mechelle Denise BROWN, Respondent.
    No. 78869
    Supreme Court of Nevada.
    FILED JUNE 21, 2019
    DISMISSED.


text:
    Anthony D. JOHNSON, Appellant, v. The STATE of Nevada, Respondent.
    No. 78947
    Supreme Court of Nevada.
    FILED JUNE 21, 2019
    DISMISSED.


text:
    Ian RITCHIE, Individually, Appellant, v. TRADE SHOW SERVICES, LTD., d/b/a Pro-Tect Security, a Nevada Corporation, d/b/a Pro-Tect Security, Respondent.
    No. 76584
    Supreme Court of Nevada.
    FILED JUNE 18, 2019
    DISMISSED.


text:
    Thomas Arvel BENSON, Appellant, v. The STATE of Nevada, Respondent.
    No. 78840
    Supreme Court of Nevada.
    FILED JUNE 18, 2019
    DISMISSED.


text:
    M. Joseph MILLER, II, Appellant, v. Jason BURKE, Respondent.
    No. 77382
    Supreme Court of Nevada.
    FILED JUNE 24, 2019
    DISMISSED.


text:
    Alexandria CONTINI, Appellant, v. BREIT MF DREAM APARTMENTS LLC, an LLC, d/b/a Dream Apartments; and Westcorp Management Group One, Inc., a Nevada Domestic Corporation, Respondents.
    No. 78742
    Supreme Court of Nevada.
    FILED JUNE 24, 2019
    DISMISSED.


text:
    Thomas Edward BROPHY, Appellant/Cross-Respondent, v. Katherine Anne LAMBROS, Respondent/Cross-Appellant.
    No. 78093
    Supreme Court of Nevada.
    FILED JUNE 21, 2019
    Dismissed.


text:
    Nikoleta UZUNOVA, Appellant, v. Mariya ILIEVA, an Individual, Respondent.
    No. 74987
    Supreme Court of Nevada.
    FILED JUNE 17, 2019
    AFFIRMED.


text:
    Steven Samuel BRAUNSTEIN, Appellant, v. The State of Nevada DEPARTMENT OF CORRECTIONS; the State of Nevada; James Dzurenda, NDOC Director; Brian Williams, Warden HDSP; Jenniffer Nash, Warden HDSP; Duane Wilson, FSMIII HDSP; Yisrael Rosskum, NDOC (Rabbi); Louie Gallo c/o HDSP; Shawn Hankerd c/o HDSP; Dr. Bryan, HDSP; M. Hubbard Pickett, Warden; and Alexis Lanzano, Respondents.
    No. 78778
    Supreme Court of Nevada.
    FILED JUNE 18, 2019
    DISMISSED.


text:
    Andrew Paul LEAHY, Appellant, v. The STATE of Nevada, Respondent.
    No. 75966
    Supreme Court of Nevada.
    FILED JUNE 17, 2019
    AFFIRMED.


text:
    Frazier Pierce YOUNG, Appellant, v. The STATE of Nevada, Respondent.
    No. 75854
    Supreme Court of Nevada.
    FILED JUNE 17, 2019
    AFFIRMED.


text:
    Quadrae SCOTT, Appellant, v. The STATE of Nevada, Respondent.
    No. 76678
    Supreme Court of Nevada.
    FILED JUNE 17, 2019
    AFFIRMED.


text:
    Jeremy Evan SIGAL, Appellant, v. The STATE of Nevada, Respondent.
    No. 75377
    Supreme Court of Nevada.
    FILED JUNE 17, 2019
    AFFIRMED.


text:
    Allen Stanislouis HEUSNER, Appellant, v. Jerry HOWELL, Warden; and Attorney General for the State of Nevada, Respondents.
    No. 78806
    Supreme Court of Nevada.
    FILED JUNE 18, 2019
    DISMISSED.


text:
    Michael Jerome SMITH, Appellant, v. The STATE of Nevada, Respondent.
    No. 78814
    Supreme Court of Nevada.
    FILED JUNE 18, 2019
    DISMISSED.


text:
    Manuel WINN, Appellant, v. The State of Nevada DEPARTMENT OF CORRECTIONS; James Dzurenda; Warden Dwight Neven; Officer B. Hampton; and Officer W. Brown, Respondents.
    No. 78922
    Supreme Court of Nevada.
    FILED JUNE 18, 2019
    DISMISSED.


text:
    Brett THEIL, Appellant, v. The STATE of Nevada, Respondent.
    Brett Theil, Appellant, v. The State of Nevada, Respondent.
    No. 78839 No. 78913
    Supreme Court of Nevada.
    FILED JUNE 18, 2019
    ADMINISTRATIVELY CLOSING THE APPEAL IN DOCKET NO. 78913 AND TRANSFERRING DOCUMENTS.


text:
    In the MATTER OF DISCIPLINE OF William H. GAMAGE, Bar No. 9024.
    No. 77957
    Supreme Court of Nevada.
    FILED JUNE 21, 2019
    Suspend.


text:
    Peter Russell BRUSH, Appellant, v. The STATE of Nevada, Respondent.
    No. 77779
    Supreme Court of Nevada.
    FILED JUNE 21, 2019
    DISMISSED.


text:
    David SHARE, AS TRUSTEE OF the DAVID SHARE REVOCABLE LIVING TRUST, Appellant, v. REPUBLIC SERVICES, INC., a Foreign Corporation, Respondent.
    No. 78571
    Supreme Court of Nevada.
    FILED JUNE 21, 2019
    Dismissed.


text:
    Geraldine TRICE, Appellant, v. ALLIED COLLECTION SERVICES, INC., Respondent.
    No. 78817
    Supreme Court of Nevada.
    FILED JUNE 21, 2019
    DISMISSED.


text:
    Megan LAWRENCE, Appellant, v. The STATE of Nevada, Respondent.
    No. 76991
    Supreme Court of Nevada.
    FILED JUNE 17, 2019
    AFFIRMED.


text:
    David SERRANO, an Individual, Appellant, v. CLARK COUNTY SCHOOL DISTRICT, Respondent.
    No. 76976
    Supreme Court of Nevada.
    FILED JULY 1, 2019
    Dismissed.


text:
    LN MANAGEMENT LLC-SERIES 3610 KARAOKE, Appellant, v. BANK OF AMERICA, N.A., Respondent.
    No. 75744
    Supreme Court of Nevada.
    FILED JULY 1, 2019
    Dismissed.


text:
    Michael HEAD, Appellant, v. Janinna GOODWIN, Respondent.
    No. 78296
    Supreme Court of Nevada.
    FILED JUNE 18, 2019
    DISMISSED.


text:
    Alvin RANKIN a/k/a Alvin Rankin, Jr. a/k/a Alvin Morris, Appellant, v. The STATE of Nevada, Respondent.
    No. 75981
    Supreme Court of Nevada.
    FILED JUNE 17, 2019
    AFFIRMED.


author: OPINION BY ROBERT D. BELL, JUDGE:

text:
    In re the MATTER OF E.M., Deprived Child:
    Lacie Robison, Appellant, v. State of Oklahoma, Appellee.
    Case No. 117,565
    Court of Civil Appeals of Oklahoma, Division No. 3.
    FILED MAY 17, 2019 Mandate Issued: June 12, 2019
    C. Alison Wade, Tulsa, Oklahoma, for Appellant,
    Kali Strain, Zachary Cabell, ASSISTANT DISTRICT ATTORNEYS, Claremore, Oklahoma, for Appellee,
    Kacie Cresswell, Owasso, Oklahoma, for the Child.
   OPINION BY ROBERT D. BELL, JUDGE:

¶ 1 Appellant, Lacie Robison (Mother), appeals from the trial court's order terminating her parental rights to her minor child, E.M. Appellee, the State of Oklahoma (State), filed a petition to terminate Mother's parental rights on the basis that she failed to correct the conditions for which the child was found to be deprived: Mother failed to correct the conditions of threat of harm, exposure to drug abuse, and failure to protect, even though she was given at least three (3) months to correct the conditions. State also alleged termination of Mother's parental rights would be in the child's best interests. After reviewing the record, we find clear and convincing evidence supports the grounds for termination of Mother's parental rights pursuant to 10A O.S. Supp. 2015 § 1-4-904(B)(5) for her failure to correct the conditions of threat of harm, exposure to drug abuse, and failure to protect, even though she was given at least three (3) months to correct the conditions, and that the termination of Mother's parental rights is in the child's best interest. However, the order is remanded to the trial court with instructions to specifically state the uncorrected conditions with particularity, to identify the statutory basis for the termination, and to require Mother to pay child support.

¶ 2 The minor child was born August 1, 2016, and taken into emergency custody by the Department of Human Services (DHS) as soon as he was discharged from the hospital. State filed a petition to have the child adjudicated deprived August 19, 2016. State alleged Mother admitted to using drugs, specifically methamphetamine, while pregnant and within the last three months. State also alleged the biological father hit Mother during pregnancy causing her to have a black eye, the parents' previous child was removed from their care under a guardianship filing, the parents have an extensive criminal history, and it would be in the child's best interest to be adjudicated deprived. The child was adjudicated deprived September 27, 2016.

¶ 3 The trial court ordered an Individualized Service Plan (ISP) for Mother November 22, 2016. The ISP ordered Mother to undergo a mental health evaluation; attend and obtain treatment for substance abuse (methamphetamine); obtain an assessment for battery; attend a victim's assessment; and obtain and maintain legal employment and provide a safe, stable, and clean home for the child.

¶ 4 During the proceeding, Mother had a warrant out for her arrest for aggravated assault and battery. Mother turned herself into Rogers County Jail on February 7, 2017. On May 23, 2017, a bench warrant for Mother was issued due to her violating terms of her probation. Mother was incarcerated when the pre-trial conference was set. Mother was released from Rogers County Jail January 24, 2018.

¶ 5 On March 3, 2017, State filed a motion to terminate Mother's parental rights pursuant to 10A O.S. § 1-4-904(B)(5). State specifically alleged Mother's parental rights should be terminated because Mother failed to correct the conditions of threat of harm, exposure to drug abuse, and failure to protect, even though she was given at least three (3) months to correct the conditions. State also alleged termination of Mother's parental rights would be in the child's best interests.

¶ 6 On January 9, 2018, the court's permanency review order notes Mother was sworn in and questioned by the court about Mother's stated desire to waive her right to a jury trial. This matter proceeded to a bench trial. A DHS permanency worker and Mother testified at trial. Mother conceded she had not corrected the conditions or worked on the ISP when State filed the motion to terminate. Mother alleged she was incarcerated during this time frame, she did not have a place to live with the child and she had not completed her drug treatment. Mother stated the child was placed in DHS custody at four (4) weeks of age, and now the child is two (2) years old. Mother conceded the child has never lived with her and she has not cared for the child. But, she urged her parental rights should not be terminated because she was sober and had a job. Mother testified she discontinued taking medications prescribed to her for her mental health because she did not believe she needed same. She did not seek a physician's advice before discontinuing the medications.

¶ 7 The DHS permanency worker testified the child should be adopted by the current foster family. The DHS worker stated the child is happy and does not look to Mother for nurturing. The DHS worker stated Mother addressed some conditions only after the motion to terminate was filed because Mother's incarceration delayed the termination hearing. The DHS worker stated Mother was taken for an assessment and offered inpatient treatment, which Mother refused.

¶ 8 At the conclusion of trial, the trial court announced considering all the evidence and the mitigation that Mother completed, the clear and convincing evidence shows Mother failed to correct the conditions of threat of harm, exposure to drug abuse and failure to protect for which the child was found to be deprived even though Mother was given at least three months to do so. And, because the child has been in DHS custody for his entire life, the court also found it was in the child's best interests for Mother's parental rights to be terminated. While these detailed findings were announced at the trial, the trial court's order neglected to state the child's date of birth, it failed to specify the conditions that Mother failed to correct and the statutory ground for the termination, and the order failed to order Mother to pay child support. Mother appeals from this order.

¶ 9 For her first assignment of error, Mother contends the order is fatally deficient because it did not include the statutory basis for termination, nor did it include the specific findings of the conditions she failed to correct. When State seeks to terminate parental rights based on the grounds set forth at § 1-4-904(B)(5), State must prove by clear and convincing evidence that the parent has failed to correct the condition which led to the child's deprived adjudication and the parent has been given at least three (3) months to correct the condition. In the Matter of S.B.C. , 2002 OK 83, ¶ 5, 64 P.3d 1080. State must also prove that termination of the parental rights is in the child's best interests. 10A O.S. Supp. 2015 § 1-4-904(A)(2). On appeal, this Court must also find the presence of clear and convincing evidence to support the trial court's decision. In the Matter of S.B.C. , 2002 OK 83 at ¶ 7, 64 P.3d 1080. Accordingly, this Court will "canvass the record to determine whether a factfinder could reasonably form a firm belief or conviction from the evidence that the grounds for termination were proven." In re C.D.P.F. , 2010 OK 81, ¶ 6, 243 P.3d 21. However, this Court's appellate review does not require a re-weighing of the evidence presented at trial. Id.

¶ 10 Furthermore, "When the State initiates proceedings to terminate a parent-child bond pursuant to 10A O.S. 2011 § 1-4-904(B)(5), it must provide parents with detailed allegations, specifying those conditions the State claims were not rectified. Due process demands such charges be included in the State's application to terminate parental rights, jury instructions, verdict forms, and final journal entry of judgment." In re T.T.S. , 2015 OK 36, ¶ 22, 373 P.3d 1022.

¶ 11 Citing In re T.T.S. , Mother argues the instant order - which does not contain the statutory authority and a detailed listing of the uncorrected conditions - is fundamentally deficient and must be reversed and remanded for a new trial. Unlike In re T.T.S. , this parental rights termination case was tried by the court. Also, unlike In re T.T.S. , the conditions Mother failed to correct were identified in the motion to terminate parental rights, the adjudication and disposition orders, the ISP, and the court's announced findings. Thus, while the order may be fundamentally deficient, we hold In re T.T.S. does not prohibit a bench-trial judgment, which is supported by clear and convincing evidence, from being remanded to the trial court, not for a new trial, but with instructions to enter a proper final order correcting the error.

¶ 12 After reviewing the appellate record, we hold clear and convincing evidence supports the trial court's determination that Mother failed to correct the conditions which led to the deprived child adjudication within the statutory time frame, and, termination is in the child's best interest. We therefore reject Mother's contention that the court erred in finding the child's best interest was served by terminating Mother's parental rights, and her claim that State failed to show, with clear and convincing evidence, that Mother failed to correct the conditions which led to the deprived child adjudication. Accordingly, the trial court's determination to terminate Mother's parental rights is affirmed.

¶ 13 However, because the order fails to contain the requisite findings, the order is remanded to the trial court to enter an order that states the statutory grounds for termination and the precise conditions which Mother failed to correct. The court is also instructed to remove from its order the reference to the beyond a reasonable doubt standard of proof which is applicable to proceedings involving Indian children. Furthermore, 10A O.S. 2011 § 1-4-906(B)(2) provides the order terminating parental rights shall indicate that the duty of the parent to support his or her minor child will not be terminated unless the child is subsequently adopted as provided by § 1-4-906(B)(3).

¶ 14 For her final assignment of error, Mother contends the record does not demonstrate Mother knowingly and intelligently waived her right to a jury trial. "The right to a jury trial in a child deprivation hearing can be surrendered by voluntary consent or waiver." Matter of J.L.O., IV , 2018 OK 77, ¶ 22, 428 P.3d 881, citing 12 O.S. 2011 § 591. "Waiver must be competently, knowingly, and intelligently given." Matter of J.L.O., IV , at ¶ 22 (citation omitted). "The examining court is in the best position to observe an individual who waives a substantial and significant right. The district court is able to observe the person's actions and appearances, looking for any indication of a lack of mental clarity." Id. at ¶ 23 (citations omitted). This Court reviews the trial court's allowance of waiver of the right to a jury trial for abuse of discretion. Id. at ¶ 22.

¶ 15 After reviewing the transcript of the waiver hearing, we find no evidentiary support for Mother's claim that she did not knowingly or willingly waive her right to a jury trial. The record shows the following colloquy between the trial judge and Mother:

THE COURT: Okay. You heard the announcement of your attorney; is that in fact what you wish to do?
NATURAL MOTHER: Yes.
THE COURT: Are you under the influence of any drugs, alcohol, or narcotics that would affect your thinking?
NATURAL MOTHER: No.
THE COURT: Are you thinking clearly?
NATURAL MOTHER: Yes.
THE COURT: You understand that you have the right to have a jury trial?
NATURAL MOTHER: Yes.
THE COURT: Okay. At that jury trial you would be represented by your attorney and the jury would - - he would have a say in who was selected to appear on the jury, as would the state and the child's attorney. He is telling me that you don't wish to have a jury trial. Instead, you are willing to have what we call a bench trial; where I, the Judge, decides what happens on your case; is that what you want to do?
NATURAL MOTHER: Yes, Ma'am.
THE COURT: Are you doing that of your own freewill?
NATURAL MOTHER: Yes.
THE COURT: Has anyone threatened you, coerced you, or offered you anything of value in order to get you to waive your right to a jury trial?
NATURAL MOTHER: No.
THE COURT: Okay. I'll find your waiver of jury trial freely and voluntarily made.

Based on Mother's responses to the trial judge's questions, we hold the trial court did not abuse its discretion when it determined she voluntarily and knowingly waived her right to a jury trial.

¶ 16 AFFIRMED AND REMANDED WITH INSTRUCTIONS.

MITCHELL, P.J., and SWINTON, J., concur.

      The biological father's parental rights were terminated August 15, 2017. He is not involved in this appeal.


author: BALMER, J.

text:
    STATE of Oregon, Petitioner on Review, v. Steven Jason TOTH, Respondent on Review.
    CC C141378CR (SC S065929)
    Supreme Court of Oregon, En Banc.
    Argued and submitted January 17, 2019. June 13, 2019
    Greg Rios, Assistant Attorney General, Salem, argued the cause and filed the brief for petitioner on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Raymond Tindell, Portland, argued the case and filed the brief for the respondent on review.
   BALMER, J.

This case concerns whether the trial court erred in sentencing defendant to pay a $150,000 compensatory fine. We considered many of the issues presented by this case in State v. Moreno-Hernandez , 365 Or. 175, 442 P.3d 1092 (2019), a case involving defendant's codefendant. As in Moreno-Hernandez , we conclude that the trial court erred, and remand for resentencing.

Defendant was the manager of a strip club in the Beaverton area. Moreno-Hernandez brought S, a thirteen-year-old girl, to defendant's strip club, where defendant and Moreno-Hernandez agreed that S would work at the club. While working at the strip club, S engaged in prostitution and the two men split the proceeds. In addition, defendant had sex with S.

Ultimately, S was brought into the legal custody of the Department of Human Services (DHS). DHS sent S to Mingus Mountain, a treatment facility that specializes in the treatment of girls who are emotionally or behaviorally at risk, including girls who, like S, have been sexually exploited. While there, S disclosed to counselors that she had been sexually abused by defendant and Moreno-Hernandez.

Defendant pleaded guilty to three counts relating to S: second-degree sodomy, first-degree sexual abuse, and compelling prostitution. He also pleaded guilty to a separate promoting prostitution charge that did not involve S. At sentencing, the trial court indicated that it was interested in imposing a compensatory fine and inquired into whether that was an available option in this case. The prosecutor stated that S's treatment at Mingus Mountain had resulted in economic damages. Defendant objected to the imposition of a compensatory fine, arguing, among other things, that there was no evidence that S had suffered economic damages.

On the single compelling prostitution conviction, the trial court imposed a $200 fine as well as a $150,000 compensatory fine ultimately payable to S. The trial court also imposed an overall sentence of 180 consecutive months in prison.

Defendant appealed, assigning error to the imposition of the compensatory fine. The Court of Appeals, relying on its decision in State v. Moreno-Hernandez , 290 Or. App. 468, 415 P.3d 1088 (2018), held that "it was plain error to award a compensatory fine in addition to a punitive fine." State v. Toth , 290 Or. App. 925, 927, 417 P.3d 479 (2018). The Court of Appeals further reasoned that because " '[t]he record contains no evidence that [the victim] ever incurred any objectively verifiable economic obligation for the treatment and, therefore, ever suffered any economic damages as a result of defendant's crimes' " a remand was unnecessary. Id. (quoting Moreno-Hernandez , 290 Or. App. at 474, 415 P.3d 1088 ).

The state petitioned for review. Here, as in our decision in Moreno-Hernandez , we agree with the Court of Appeals, albeit for a different reason, that the trial court erred in imposing a compensatory fine, but conclude that it is appropriate to remand for resentencing.

Before designating a portion of a fine to be paid to a victim as a compensatory fine, three requirements must be satisfied. "The first is that the crime must 'result[ ] in injury,' " Moreno Hernandez , 365 Or. at 181, 442 P.3d 1092 (quoting ORS 137.101(1) ). Second, the victim must meet one of the statutory definitions of "victim" in ORS 137.103(4), most of which-including ORS 137.103(4)(a), which is the only definition in play here-require that the victim have suffered "economic damages." Economic damages is defined by ORS 31.710 to include, among other items, "reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services * * *." "The third inquiry 'is whether those damages were recoverable against the defendant in a civil action.' " Moreno Hernandez , 365 Or. at 183, 442 P.3d 1092 (quoting State v. Barkley , 315 Or. 420, 438, 846 P.2d 390 (1993) ).

In this case, there is no dispute that defendant's sexual abuse and prostitution of S resulted in injury. However, the parties disagree as to whether the other two criteria are satisfied on this record. In Moreno-Hernandez , we recognized that Oregon's longstanding rule that a child's medical expenses are damages incurred by the parents, not by the child, was dispositive. Moreno Hernandez , 365 Or. at 189, 442 P.3d 1092. Although we did not decide every particular of how that rule applies to a child in DHS custody, we made clear that under the facts in Moreno-Hernandez , it was not S who suffered the damages. Id. We also rejected the state's argument that S had suffered economic damages either because she would have incurred them had she agreed to pay the bill-which was beside the point because she had not done so-or because she might be held liable on a quantum meruit theory-which we deemed too speculative. Moreno-Hernandez , 365 Or. at 189, 442 P.3d 1092.

The principal distinction between this case and Moreno-Hernandez is that the record in this case is much thinner. Some facts that were clearly established by witness testimony in Moreno-Hernandez are less clear here. However, as in Moreno-Hernandez , the record shows that S was a minor in DHS custody during her stay at Mingus Mountain and that DHS or the Oregon Health Plan paid for that treatment. Without more, that means that S did not suffer economic damages based on those medical expenses. Moreno-Hernandez , 365 Or. at 189, 442 P.3d 1092.

In this case, the state offers an alternative ground for affirming the trial court: that by accepting a plea offer that provided that the trial court could impose a fine within its discretion, defendant effectively stipulated to all of the prerequisites to the imposition of a compensatory fine, and thus no factual findings were necessary. That argument, which diverges from the position taken by the state in the trial court, and which was not raised on appeal until the rebuttal portion of the state's oral argument in this court, is without merit. Nothing in the record suggests that defendant stipulated that the trial court could impose a compensatory fine or that he stipulated that S had suffered economic damages.

The remaining question is the appropriate disposition. As in Moreno-Hernandez , the Court of Appeals reversed the portion of the judgment imposing the compensatory fine, but did not remand for resentencing. As we explained in our opinion in Moreno-Hernandez , "it may be that a compensatory fine could be imposed, payable to another victim ***." 365 Or. at 190, 442 P.3d 1092. In this case, the prosecutor proposed that a compensatory fine be directed to DHS. We do not decide here whether a compensatory fine directed to DHS would be appropriate on this record, but it is an option for the trial court to consider on remand.

In Moreno-Hernandez we also noted that because a compensatory fine is a designation of part or all of a statutorily authorized criminal fine to be paid to a victim, "deleting the compensatory fines from the sentence, as the Court of Appeals did, may well not have captured the trial court's intent regarding what it determined to be the appropriate overall sentence." 365 Or. at 190, 442 P.3d 1092. In this case, the trial court, in explaining its sentence, stated that "this situation just calls for punitive and compensatory fines. You know-if any case screams out for one, this is one of those, so-that's why I did it." Accordingly, "there remain options that the trial court permissibly could adopt on resentencing." State v. Edson , 329 Or. 127, 139, 985 P.2d 1253 (1999). We are therefore required by former ORS 138.222 (2015), repealed by Or. Laws 2017, chapter 529, section 26, to reverse the sentence of the trial court and to remand to that court for resentencing.

The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

      ORS 137.103(4)(a) defines a victim to include
      "[t]he person or decedent against whom the defendant committed the criminal offense, if the court determines that the person or decedent has suffered or did suffer economic damages as a result of the offense."

      In the trial court, the prosecutor stated to the judge, "I can say this, though, too, in full disclosure-the agreement we had with Mr. Toth did not specifically address compensatory fines, and that was not part of the agreement I made with him ***."

      We reject without discussion defendant's argument that the trial court lacked authority to impose a compensatory fine because the state had not sought a compensatory fine or because his plea agreement did not specifically provide for one to be imposed.

      Because the judgment in defendant's case was entered prior to January 1, 2018, former ORS 138.222 (2015) applies to this appeal. See Or. Laws 2017, ch. 529, § 28.


text:
    STATE of Oregon, Petitioner on Review, v. Victor C. MORENO-HERNANDEZ, Respondent on Review.
    CC C133034CR (SC S065930)
    Supreme Court of Oregon, En Banc.
    Argued and submitted January 17, 2019. June 13, 2019
    Greg Rios, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Mary M. Reese, Deputy Public Defender, Office of Public Defense Services, Salem, argued the case and filed the brief for the respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender.
   BALMER, J.

This case concerns whether the trial court properly sentenced defendant to pay three $50,000 compensatory fines. As in several recent cases, this criminal sentencing question requires us to examine and to develop principles of tort law related to the recovery of economic damages. See State v. Gutierrez-Medina , 365 Or. 79, 442 P.3d 183 (2019) ; State v. Ramos , 358 Or. 581, 368 P.3d 446 (2016) ; State v. Islam , 359 Or. 796, 377 P.3d 533 (2016). Applying those principles, we agree with the Court of Appeals that the trial court erred in sentencing defendant to pay the compensatory fines that it did in this case, although we arrive at that conclusion by a different route. But we disagree, for reasons that we explain below, with the Court of Appeals' decision simply to reverse the erroneous portion of defendant's sentence; we conclude that a remand is required.

In 2012, defendant, an adult man, met S, a thirteen-year-old girl. S moved in with defendant, and he had sex with her multiple times. He also supplied her with methamphetamine. Defendant introduced S to his eventual codefendant, Toth, the manager of a strip club. Defendant and Toth agreed to have S work in the strip club, where she performed nude for customers and engaged in sexual acts with Toth and some of the club's customers. Toth was paid for those acts of prostitution, and he split the proceeds with defendant.

S ultimately left defendant and came into the legal custody of the Department of Human Services (DHS). DHS attempted to provide treatment for S in Oregon, but ultimately sent her to Mingus Mountain, an Arizona residential treatment center for girls who are emotionally or behaviorally at risk, including girls who have been sexually exploited. While at that facility, S disclosed to a counselor that she had been sexually abused by defendant.

After an investigation by law enforcement, defendant was charged with multiple crimes relating to his rape and sexual abuse of S. Defendant went to trial on those charges. Multiple witnesses testified against him, including S and Toth. During the trial, S's former caseworker testified that S had been in the legal custody of DHS during the entire time that she was treated at Mingus Mountain. The caseworker also testified that all children in DHS custody qualify for the Oregon Health Plan and that stays at Mingus Mountain would be paid for by that insurance.

Defendant was convicted of two counts of second-degree rape, two counts of second-degree sodomy, two counts of second-degree unlawful sexual penetration, two counts of first-degree sexual abuse, one count of unlawful delivery of methamphetamine to a minor, and four counts of compelling prostitution. Three of the compelling prostitution convictions were based on acts that took place at the strip club managed by Toth.

The trial court indicated that it was interested in imposing compensatory fines, as allowed by ORS 137.101(1), on those three compelling prostitution convictions. The state, recognizing the need to demonstrate that the victim had suffered economic damages before a compensatory fine could be imposed, presented the court with a letter indicating that S's treatment at Mingus Mountain had cost approximately $168,000.

The trial court sentenced defendant to a total of 370 consecutive months in prison for the 13 convictions. The court also imposed a $50,000 compensatory fine on defendant on each of the three compelling prostitution convictions related to activities at the strip club. The judgment stated: "Pay a compensatory fine to: [S's name] c/o DHS." The trial court also imposed a $200 punitive fine on each of those convictions.

Defendant appealed, assigning error to the imposition of the compensatory fines. Defendant argued that the trial court erred in imposing the compensatory fines for several reasons: (1) that the state had failed to establish the statutory prerequisites for imposing a compensatory fine, specifically, that S was not a victim who had suffered economic damages; (2) that the state had failed to establish that defendant had the ability to pay $150,000 in fines; and (3) that the trial court had plainly erred by imposing both a $50,000 compensatory fine and a $200 punitive fine on each of the compelling prostitution counts.

The Court of Appeals agreed with defendant's third argument and held that "the trial court plainly erred in imposing three $50,000 compensatory fines on Counts 16 through 18 [the compelling prostitution counts] in addition to the $200 punitive fines imposed for Counts 16 through 18." State v. Moreno-Hernandez , 290 Or. App. 468, 471, 415 P.3d 1088 (2018). The Court of Appeals then considered whether it was appropriate to remand the case for resentencing. The Court of Appeals concluded that "the record clearly demonstrates that a compensatory fine payable to S cannot be lawfully imposed," id. at 471-72, 415 P.3d 1088, and that there was therefore no reason to remand for resentencing, id. at 475, 415 P.3d 1088. The court reasoned:

"The record contains no evidence that S ever incurred any objectively verifiable economic obligation for the treatment and, therefore, ever suffered any economic damages as a result of defendant's crimes. The state produced no evidence from which a court could infer that S, a child who was under the guardianship of DHS, could have been liable for the costs of the Mingus Mountain treatment."

Id. at 474-75, 415 P.3d 1088. The Court of Appeals therefore reversed the portion of the judgment requiring defendant to pay the compensatory fines but did not remand for resentencing. Id. at 475, 415 P.3d 1088. The state petitioned for review, which we allowed.

On review, we approach the issue somewhat differently from the Court of Appeals and, while we agree with some of that court's legal conclusions, including that the trial court erred in imposing a compensatory fine directed to S, we disagree with its decision not to remand for resentencing.

We begin by considering the question that the parties have focused on, whether the statutory prerequisites for designating a fine as compensatory were established in this case.

A sentencing court's authority to impose a compensatory fine derives from ORS 137.101(1), which provides:

"Whenever the court imposes a fine as penalty for the commission of a crime resulting in injury for which the person injured by the act constituting the crime has a remedy by civil action, unless the issue of punitive damages has been previously decided in a civil case arising out of the same act and transaction, the court may order that the defendant pay any portion of the fine separately to the clerk of the court as compensatory fines in the case. The clerk shall pay over to the injured victim or victims, as directed in the court's order, moneys paid to the court as compensatory fines under this subsection. This section shall be liberally construed in favor of victims."

ORS 137.101(1) must be understood in the context of a trial court's other sentencing authority. Several statutes permit a sentencing court to impose a "fine" as a penalty. Those statutes include ORS 161.625(1) (for classified felonies), ORS 161.635(1) (for classified misdemeanors), and ORS 161.655 (when the defendant is a corporation). In this case, defendant's compelling prostitution convictions were Class B felonies. ORS 167.017(2). Thus, under ORS 161.625(1), the sentencing judge was authorized to fine defendant "an amount, fixed by the court, not exceeding *** $250,000" on each of those counts.

The first sentence of ORS 137.101(1) states that "[w]henever the court imposes a fine as penalty for the commission of a crime *** the court may order that the defendant pay any portion of the fine separately to the clerk of the court as compensatory fines in the case." In other words, ORS 137.101(1) permits a trial court to direct that a portion of a fine imposed as a penalty under ORS 161.625(1) -or another statute authorizing the imposition of a fine-be designated as a compensatory fine and paid to an injured victim. However, ORS 137.101(1) governs only the decision to designate a portion of a fine as a compensatory fine; it is neither a source of authority for, nor a constraint on, a sentencing court's initial imposition of "a fine as penalty for the commission of a crime."

Thus, ORS 137.101(1) envisions a two-step process for the imposition of compensatory fines. First, the court imposes a fine as a punishment for a crime, up to the maximum set by the applicable statute that authorizes the fine. The question of whether to impose a fine, and the amount to impose, is largely within the trial court's discretion and to be determined based on the factors ordinarily appropriate in sentencing. The relevant statutes provide only limited guidance as to how the trial court should determine the total amount of the fine:

"In determining whether to impose a fine and its amount, the court shall consider:
"(1) The financial resources of the defendant and the burden that payment of a fine will impose, with due regard to the other obligations of the defendant; and
"(2) The ability of the defendant to pay a fine on an installment basis or on other conditions to be fixed by the court."

ORS 161.645.

The second step is the designation of some or all of that fine as a "compensatory" fine payable to a victim, as permitted by ORS 137.101(1). That second step is less discretionary. ORS 137.101(1) imposes three requirements that must be satisfied before a court may designate a portion of a fine as compensatory, as this court recognized in State v. Barkley , 315 Or. 420, 846 P.2d 390 (1993). The first is that the crime must "result[ ] in injury," ORS 137.101(1), which-as we held in Barkley -"does not require that the person or victim 'injured' as a result of a defendant's criminal activities must have suffered a 'direct physical injury' thereby." 315 Or. at 437, 846 P.2d 390.

The second requirement derives from the specification in ORS 137.101(1) that compensatory fines be paid "to the injured victim or victims ***." "Victim" is defined for purposes of ORS 137.101 as:

"(a) The person or decedent against whom the defendant committed the criminal offense, if the court determines that the person or decedent has suffered or did suffer economic damages as a result of the offense.
"(b) Any person not described in paragraph (a) of this subsection whom the court determines has suffered economic damages as a result of the defendant's criminal activities.
"(c) The Criminal Injuries Compensation Account, if it has expended moneys on behalf of a victim described in paragraph (a) of this subsection.
"(d) An insurance carrier, if it has expended moneys on behalf of a victim described in paragraph (a) of this subsection.
"(e) Upon the death of a victim described in paragraph (a) or (b) of this subsection, the estate of the victim.
"(f) The estate, successor in interest, trust, trustee, successor trustee or beneficiary of a trust against which the defendant committed the criminal offense, if the court determines that the estate, successor in interest, trust, trustee, successor trustee or beneficiary of a trust suffered economic damages as a result of the offense."

ORS 137.103(4). Most of the subparts of that definition require that the victim have "suffered economic damages." "Economic damages" is defined, as pertinent here, to have "the meaning given that term in ORS 31.710, except that 'economic damages' does not include future impairment of earning capacity ***." ORS 137.103(2). And ORS 31.710 (2)(a), in turn, provides that

" '[e]conomic damages' means objectively verifiable monetary losses including but not limited to reasonable charges necessarily incurred for medical, hospital, nursing and rehabilitative services and other health care services, burial and memorial expenses, loss of income and past and future impairment of earning capacity, reasonable and necessary expenses incurred for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred costs due to loss of use of property and reasonable costs incurred for repair or for replacement of damaged property, whichever is less."

Thus, the second requirement for designating a part of a fine as compensatory is that the victim who will receive the proceeds have suffered "objectively verifiable monetary losses."

The third inquiry "is whether those damages were recoverable against the defendant in a civil action." Barkley , 315 Or. at 438, 846 P.2d 390. That requirement derives from the text of ORS 137.101(1), which allows a compensatory fine to be imposed only if there is an "injury for which the person injured by the act constituting the crime has a remedy by civil action * * *."

In this case, there is no dispute that the first requirement is satisfied. The sexual abuse that S suffered as a result of being compelled into prostitution qualifies as an injury. The parties part ways, however, on whether the second and third requirements are satisfied. We begin with the question of whether S suffered economic damages and, specifically, whether she "incurred" medical expenses.

On review, the state argues that the cost of medical treatment at Mingus Mountain was incurred by S as economic damages and that the Court of Appeals erred in concluding that "[t]he record contains no evidence that S ever incurred any objectively verifiable economic obligation for the treatment ***." Moreno-Hernandez , 290 Or. App. at 474, 415 P.3d 1088. The state argues that medical expenses can be incurred based on treatment received, even where there is no obligation to pay, and that therefore S incurred medical expenses regardless of whether she paid for or was liable for the cost of her treatment.

Defendant argues that S incurred medical expenses only to the extent that she was "liable, obligated, or responsible in law or equity for or otherwise subject to the payment of" those expenses. Moreover, defendant notes that S was a minor when she stayed at Mingus Mountain, and points to the common law rule that a minor's medical expenses are incurred by the minor's parents, not by the minor. Thus, defendant argues, S never incurred medical expenses.

The parties' conflicting interpretations of our decision in White v. Jubitz Corp ., 347 Or. 212, 219 P.3d 566 (2009), are central to their disagreement, so we turn to that case. White involved a plaintiff who had been injured when a bar stool collapsed. White , 347 Or. at 215, 219 P.3d 566. He was treated for his injuries and billed approximately $37,600. Because the plaintiff qualified for Medicare benefits, he did not end up having to pay any of that amount. Instead, "Medicare paid plaintiff's medical providers a total of $13,400"

and, in accordance with federal law, the providers "had 'written off' the remainder of their charges." Id. The plaintiff sued the bar, and the jury awarded him $37,600 in economic damages, based on the medical expenses. Id. at 217, 219 P.3d 566. The defendant argued that the plaintiff should not be permitted to recover the portion of the charges that had been written off. Id. at 215-18, 219 P.3d 566.

This court resolved those arguments by examining three sources of law: the common law collateral source rule, Oregon's collateral source statute, and ORS 31.710, the statutory definition of economic damages. As we explained, the common law collateral source rule "permits a plaintiff to recover damages from a tortfeasor and concomitant sums from a third party and to do so without regard to whether the plaintiff has purchased, earned, or must repay those third-party benefits." White , 347 Or. at 220-21, 219 P.3d 566. For example, a plaintiff who has had her medical expenses paid by an insurer is still entitled to recover those medical expenses as damages from a liable defendant. As a result, "[t]ortfeasors that cause the same injuries are responsible for the same damages, irrespective of the plaintiffs' receipt of benefits from, or legal relationships with, third-party benefit providers." Id. at 221-22, 219 P.3d 566. We also recognized that the collateral source statute, ORS 31.580, "modified the common-law collateral source rule and that it now provides the controlling law in actions for damages for bodily injury or death." White , 347 Or. at 222, 219 P.3d 566. A detailed discussion of how those principles apply, and the scope of the legislature's changes to the common law rule, is unnecessary to the resolution of this case. It is the third part of White -its discussion of economic damages-that is most relevant.

The defendant's position in White was that, under ORS 31.710 -the same definition of economic damages that applies in this case-the injured plaintiff "was not entitled to claim as economic damages amounts that he did not pay or have a legal obligation to pay," including the expenses that had been written off by the provider. 347 Or. at 231, 219 P.3d 566. In so arguing, the defendant effectively urged this court to interpret ORS 31.710 as abrogating the collateral source rule, at least in part, by preventing plaintiffs from recovering medical expenses because those expenses had been satisfied by third parties. This court declined that invitation. As we explained, reading ORS 31.710 consistently with the collateral source rule,

"Insofar as ORS 31.710 applies to this action, we do not read its definition of economic damages to be inconsistent with the result that ORS 31.580 [the collateral source statute] permits. A plaintiff who is injured and who obtains necessary medical treatment becomes 'liable or subject to' reasonable charges for that treatment and thereby 'incurs' them. ORS 31.710 does not require that a plaintiff also pay or otherwise satisfy those charges. Whether or by what means the plaintiff or a third party satisfies medical charges is a matter between the plaintiff, the third party, and the medical providers. ORS 31.710 does not make a plaintiff's right to assert a claim for economic damages against a tortfeasor dependent on those arrangements."

White , 347 Or. at 234, 219 P.3d 566.

In its briefing in this case, the state focuses on the second sentence in that quotation, and appears to read it to establish that, in all cases, a plaintiff incurs medical expenses by obtaining necessary medical treatment. And the state notes that White cited section 924, comment f, of the Restatement (Second) of Torts which "provides that an 'injured person is entitled to damages for all expenses and for the value of services reasonably made necessary by the harm.' " White , 347 Or. at 236, 219 P.3d 566 (quoting Restatement (Second) of Torts § 924 comment f (1979) (emphasis in White )).

Defendant reads White more narrowly, arguing that, in resolving the collateral source rule-related questions before it, White had not extended "the scope of economic damages to include expenses the injured party has never incurred." He observes that the plaintiff in White was billed for the full amount of medical expenses that he sought to recover as economic damages, and that the court had made note of that fact in describing the scope of its holding. See, e.g. , White , 347 Or. at 242, 219 P.3d 566 ("[W]e decide that an injured person who receives medical services and who is billed for those services may seek the reasonable value of that treatment in a claim against a tortfeasor ***." (Emphasis added.)).

Much of that dispute goes beyond this case. Here we are faced with a more straightforward question: Whether White supplanted the common law rule that when a child is injured, and receives treatment for that injury in her minority, it is the parent who suffers any economic damages based on medical expenses.

As the Restatement (Second) of Torts explains,

"One who by reason of his tortious conduct is liable to a minor child for illness or other bodily harm is subject to liability to
"* * * * *
"(b) the parent who is under a legal duty to furnish medical treatment for any expenses reasonably incurred or likely to be incurred for the treatment during the child's minority."

Restatement § 703 (1977). In Oregon, that principle has been recognized both by statute and in the common law. In Palmore v. Kirkman Laboratories , 270 Or. 294, 527 P.2d 391 (1974), this court stated that "[i]t is generally held that medical expenses incurred due to the negligent injury of a minor unemancipated child are damages suffered by the parent and not the child." That rule is consistent with-indeed, it is the underlying premise of- ORS 31.700, which provides that

"(1) When the guardian ad litem or conservator of the estate of a child maintains a cause of action for recovery of damages to the child caused by a wrongful act, the parent, parents, or conservator of the estate of the child may file a consent accompanying the complaint of the guardian ad litem or conservator to include in the cause of action the damages as, in all the circumstances of the case, may be just, and will reasonably and fairly compensate for the doctor, hospital and medical expenses caused by the injury.
"(2)(a) If the consent is filed as provided in subsection (1) of this section and the court allows the filing by a guardian ad litem, no court shall entertain a cause of action by the parent, parents or conservator for doctor, hospital or medical expenses caused by the injury."

ORS 31.700 carves out a partial exception to the common law rule, allowing the parents' and child's damages to be recovered in a single action, brought by the child's guardian ad litem or conservator.

Palmore illustrates the significance of both the common law rule and ORS 31.700 (then codified at former ORS 30.810 (1973), renumbered as ORS 31.700 (2003) ). Palmore was a personal injury lawsuit stemming from a car accident. The four-year-old plaintiff had been "a passenger in an automobile being driven by his mother, his guardian ad litem, which collided at an intersection with a vehicle being driven by defendant Fowler ***." Palmore , 270 Or. at 296, 527 P.2d 391. Fowler asserted as an affirmative defense against the plaintiff's claim for medical expenses that the plaintiff's mother had been guilty of contributory negligence. Id. at 305, 527 P.2d 391. This court explained:

"Although no Oregon cases have been called to our attention on this precise issue, the majority of case law from other jurisdictions would indicate that the trial court erred in sustaining plaintiff's demurrer [to the affirmative defense].
It is generally held that medical expenses incurred due to the negligent injury of a minor unemancipated child are damages suffered by the parent and not the child. See cases at Annotation, 32 A.L.R.2d 1060, 1069-1075 (1953). This rule is consistent with ORS 109.010 which places responsibility on the parents to maintain their children, and with ORS 109.020 which limits access to the child's estate for the payment of his expenses."

Id. at 305-06, 527 P.2d 391. Even though the parents had allowed the plaintiff to pursue the medical expenses in his own cause of action, as provided by former ORS 30.810 (1973), "[t]his statute, however, does not alter the fact that the claim for medical expenses is in the parent and the contributory negligence of the parent may operate to bar the recovery." Palmore , 270 Or. at 306, 527 P.2d 391. Palmore therefore held that the affirmative defense should have been allowed. Palmore emphasized, "In this case we are merely recognizing the contributory negligence of the real party in interest as to the claim for medical expenses." Id . at 307, 527 P.2d 391.

White did not discuss Palmore or ORS 31.700, and it would be unusual, to say the least, for this court, sub silentio , to overrule a longstanding precedent and to nullify a statute. Moreover, White discussed the attribution of medical expenses only in the context of the collateral source rule, not parental duties. We therefore conclude that Palmore remains good law and that, in this context, the state's reliance on White is misplaced.

This case raises the additional question of how that common law rule applies when a child is neither emancipated nor in the custody of her parents, but instead in the legal custody of DHS. That question is not one that we had occasion to consider in Palmore , but Palmore nevertheless suggests an answer. In Palmore , this court justified its adoption of the rule by reference to " ORS 109.010 which places responsibility on the parents to maintain their children ***." Palmore , 270 Or. at 306, 527 P.2d 391. That reasoning is in line with the Restatement 's articulation of the rule which links the parent's liability to his or her "legal duty to furnish medical treatment ***." Restatement § 703. Analogously, DHS has a duty to provide children in its legal custody with "care," including medical treatment. ORS 419B.373(3), (4). See also ORS 419B.346 (imposing additional duties on DHS when a ward in need of medical care is in its custody); OAR 413-010-0180(1)(d) (giving children and young adults in DHS custody a right "[t]o be provided routine and necessary medical, dental, and mental health care and treatment").

In holding that medical expenses incurred due to an unemancipated child's injury are "damages suffered by the parent and not the child," Palmore , 270 Or. at 305, 527 P.2d 391, Palmore resolves this case. We recognize that similar fact patterns may raise difficult questions about who, between DHS and the child's parents, should properly be understood to incur medical expenses. But to answer the question before us, it is enough to hold that S, who was in the legal custody of DHS for the entire period of time that she was treated at Mingus Mountain, did not herself "incur" medical expenses associated with that treatment.

The state seeks to avoid that conclusion in two ways. First, the state argues that a minor can still contract for medical expenses, and thereby incur those expenses in her own right. But there is no evidence that S did contract to pay her Mingus Mountain medical expenses. Second, the state argues that even in the absence of a contract, S might herself have been liable for the costs of treatment at Mingus Mountain under a quantum meruit theory if, hypothetically, neither her insurer nor DHS had paid the bill. We need not address whether such a claim by Mingus Mountain against S would be viable under these circumstances. Such a legally and factually thin theory of economic damages is insufficient for the state to establish that S suffered "objectively verifiable monetary losses" as required by ORS 31.710(2)(a).

Because we hold that S did not suffer economic damages, it was legal error for the trial court to include in its sentence three $50,000 compensatory fines, ultimately payable to S. We therefore do not need to resolve several other arguments that defendant has made, including that S also could not have recovered any economic damages that she suffered in a civil action and that the collateral source rule does not apply to the determination of whether a victim has "suffered" economic damages under ORS 137.103.

We turn to the proper disposition of this case in light of that error. The Court of Appeals reasoned that because (1) the trial court had already imposed a $200 punitive fine on each count, in addition to the compensatory fine, and (2) the sentencing court could not, on this record, designate any portion of those punitive fines as a compensatory fine payable to S, this was not a case where resentencing was required. Moreno-Hernandez , 290 Or. App. at 475, 415 P.3d 1088. See, e.g. , State v. Edson , 329 Or. 127, 139, 985 P.2d 1253 (1999) (remanding for resentencing where "there remain options that the trial court permissibly could adopt on resentencing").

We disagree that there are no other sentencing options that the trial could have considered. First, although the trial court erred in sentencing defendant to pay a compensatory fine directed to S, it may be that a compensatory fine could be imposed, payable to another victim-although we do not resolve the question of whether DHS or the Oregon Health Authority would qualify as victims under ORS 137.101(1). Second, as discussed above, the procedure contemplated by ORS 137.101(1) is that a trial court first imposes a fine and then, as a second step, considers whether to designate some or all of that fine to be payable to the victim as a compensatory fine-provided that the statutory prerequisites of a compensatory fine are satisfied. That statute makes it plain that punitive fines and compensatory fines are interrelated, and deleting the compensatory fines from the sentence, as the Court of Appeals did, may well not have captured the trial court's intent regarding what it determined to be the appropriate overall sentence. In these circumstances, where we have concluded that the trial court committed legal error, and that there may be other permissible options that the trial court could adopt on resentencing, the appropriate disposition is to remand to the trial court for resentencing.

We recognize that the Court of Appeals held that the trial court erred in separately imposing punitive fines and compensatory fines, and the trial court does not seem to have approached sentencing as ORS 137.101 intended. In our view, however, that legal error and the uncertainty as to what the trial court would have done had it approached sentencing as contemplated by ORS 137.101 are reasons to remand, not reasons that a remand is unnecessary. Accordingly, as required by former ORS 138.222 (2015), we reverse the sentence of the trial court and remand to that court for resentencing.

The decision of the Court of Appeals is affirmed in part and reversed in part. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

      As we discuss in more depth below, several statutes allow a sentencing court to impose a "fine" on a defendant who has been convicted of a crime. See ORS 161.625(1) ; ORS 161.635(1) ; ORS 161.655. In order to distinguish such "fines" from compensatory fines, the parties and the Court of Appeals refer to them as "punitive fines." That nomenclature may be misleading. The statutes refer to those fines simply as "fines," not as "punitive fines." And compensatory fines are no less punitive than other fines, as they are paid by a defendant as punishment for a crime. Nevertheless, for the sake of clarity, we will occasionally use the term "punitive fine" to refer to a "fine" that is not a compensatory fine.

      Defendant also assigned error to the trial court's imposition of court-appointed attorney fees on defendant. The Court of Appeals agreed with defendant that the trial court had erred and reversed that portion of the judgment. State v. Moreno-Hernandez , 290 Or. App. 468, 477-78, 415 P.3d 1088 (2018). The state has not sought review of that ruling.

      ORS 137.286(2) sets forth the minimum fine for a felony-$200-although it also permits the sentencing court to waive that minimum if it "would be inconsistent with justice in the case." ORS 137.286(3).

      ORS 137.103(4) requires that the victim have "suffered *** economic damages" (emphasis added) and ORS 31.710 defines economic damages to include "reasonable charges necessarily incurred " (emphasis added) for medical expenses. Defendant argues that "suffered" has a narrower meaning than "incurred," so that even if S "incurred" medical expenses, she did not necessarily "suffer" economic damages. Because we conclude that S did not incur medical expenses, we need not address whether the word "suffered" imposes any additional requirements.

      Both the common law rule and the statutory rule contain a related evidentiary component. As we explained in Reinan v. Pacific Motor Trucking Co ., 270 Or. 208, 213, 527 P.2d 256 (1974) :
      "The salutary policy underlying the collateral source rule is simply that if an injured party receives some compensation from a source wholly independent of the tortfeasor such compensation should not be deducted from what he might otherwise recover from the tortfeasor. The evidentiary consequence of this rule is that proof of such payments is generally regarded as inadmissible in view of its potential misuse by the jury."

      In Denton v. Int'l Health & Life Ins. Co ., 270 Or. 444, 451-52, 528 P.2d 546 (1974), we did recognize that a minor, and not his parent, was the "insured person" permitted to bring an action to recover benefits pertaining to medical expenses under an insurance policy. That holding, however, was based on the policy's text, "which clearly indicate[d] that the parties intended that the 'insured person' could only be one who suffered actual physical injury, thereby necessitating medical treatment." Id . at 451, 528 P.2d 546.

      Edson interpreted and applied former ORS 138.222 (2015), repealed by Or. Laws 2017, ch. 529, § 26. Because the judgment in defendant's case was entered prior to January 1, 2018, former ORS 138.222 (2015) applies to this appeal. See Or. Laws 2017, ch. 529, § 28.

      Because we remand for resentencing, we need not consider other issues raised by the parties, including whether, as defendant argued in the Court of Appeals, the trial court gave insufficient consideration to defendant's ability to pay when imposing fines.