Before Justices Cherry, Gibbons and Pickering. Opinion by Justice Pickering.
In this appeal, the Court clarified the doctrine of quantum meruit, ultimately affirming a district court judgment concluding that there was no express or implied contract and that there had been no benefit conferred on the defendant. The Court explained that quantum meruit “is a cause of action in two fields: restitution and contract.” Essentially, it is a measure of damages that can be used to determine the amount of restitution under the equitable theory of unjust enrichment or an award of damages under the legal theory of implied contract. Relative to an “implied-in-fact” contract, “a party may invoke quantum meruit as a gap-filler to supply the absent term” of the price to be paid for the good or service after it is determined that “the parties intended to contract and promises were exchanged, the general obligations for which must be sufficiently clear.” In affirming the lower court, the Court determined as to appellant “there there was no contract, express or implied, for the design related work standing alone” and “too many gaps to fill in the asserted contract for quantum meruit to take hold.” Moving to the claim as based on “restitution” the Court explained that a litigant “must establish each element of unjust enrichment.” In that regard, the Court required a showing that the respondent received a benefit from the services provided by the appellant, but clarified that a “benefit” is “not confined to the retention of money or property,” it can include “services beneficial to or at the request of the other” and “denotes any form of advantage.” (internal quotations omitted). Because the appellant had not conveyed a benefit to the respondent, the Court affirmed the district court’s conclusion that there had been no unjust enrichment. Finally, the Court addressed respondent’s claim for attorneys’ fees under NRCP 68 and NRS 17.115 or NRS 108.237, the Court determined that it is not necessary for the district court to make express findings as to each of the Beatty factors in using its discretion to award or deny attorneys fees under NRCP 68 and/or NRS 17.115. As to respondent’s request for fees under NRS 108.237, the court affirmed the district court’s denial of those fees despite there being no explicit finding as to the request for fees under NRS 108.237, finding that the record supported a finding that appellant had “a reasonable basis” for its claims. Affirmed. (David J. Stoft, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Thursday, August 9, 2012
Consipio Holding, BV v. Carlberg, 128 Nev. Adv. Op. 43 (Aug. 9, 2012)
Before the Court en banc. Opinion by Justice Gibbons.
This action arose out of a dispute between a Nevada corporation and its non-resident officers and directors. Several shareholders of Private Media Group, Inc. (PRVT), a corporation that is incorporated in Nevada with its principle place of business in Spain, brought derivative claims against several officers and directors of PRVT who were all residents of European nations. Only three of the defendants had ever been to Nevada previously, one visited to consult with his attorneys in preparation for this lawsuit, and the others had been to Nevada several years previously for purely personal reasons. The defendants moved to dismiss the case for lack of personal jurisdiction, and the district court granted the motion and certified the dismissal orders as final under NRCP 54(b). The court reversed the district court’s orders, and held that a district court can exercise personal jurisdiction over nonresident officers and directors who directly harm a Nevada corporation. The Court reached this conclusion by examining its previous jurisprudence on personal jurisdiction, including Trump v. Dist. Ct., 109 Nev. 687 (1993), and held that because a corporation that is incorporated in Nevada is a Nevada citizen, when officers or directors directly harm a Nevada corporation, they are harming a Nevada citizen and therefore purposefully directing their conduct toward Nevada. The court also found support in NRS 78.135(1) for the exercise of personal jurisdiction, holding that because that statute authorizes lawsuits against officers or directors of a Nevada corporation for violation of their authority, those officers and directors are on notice that they could be subject to a derivative suit under Nevada’s laws. The court also addressed Respondents’ argument that the fiduciary shield doctrine should apply, noting that the fiduciary shield doctrine does not apply in Nevada because Nevada’s long-arm statute extends to the limits of due process. Finally, the court noted that while the district court held hearings on the motions and ultimately concluded that an individual’s position as a Nevada corporation’s director does not automatically subject them to jurisdiction in Nevada, the district court needed to conduct further factual analysis in order to determine whether the Respondents’ specific conduct in this case subjected them to jurisdiction in Nevada. Vacated and remanded for further proceedings. (Megan L. Starich, Associate in the Reno office of McDonald Carano Wilson LLP).
This action arose out of a dispute between a Nevada corporation and its non-resident officers and directors. Several shareholders of Private Media Group, Inc. (PRVT), a corporation that is incorporated in Nevada with its principle place of business in Spain, brought derivative claims against several officers and directors of PRVT who were all residents of European nations. Only three of the defendants had ever been to Nevada previously, one visited to consult with his attorneys in preparation for this lawsuit, and the others had been to Nevada several years previously for purely personal reasons. The defendants moved to dismiss the case for lack of personal jurisdiction, and the district court granted the motion and certified the dismissal orders as final under NRCP 54(b). The court reversed the district court’s orders, and held that a district court can exercise personal jurisdiction over nonresident officers and directors who directly harm a Nevada corporation. The Court reached this conclusion by examining its previous jurisprudence on personal jurisdiction, including Trump v. Dist. Ct., 109 Nev. 687 (1993), and held that because a corporation that is incorporated in Nevada is a Nevada citizen, when officers or directors directly harm a Nevada corporation, they are harming a Nevada citizen and therefore purposefully directing their conduct toward Nevada. The court also found support in NRS 78.135(1) for the exercise of personal jurisdiction, holding that because that statute authorizes lawsuits against officers or directors of a Nevada corporation for violation of their authority, those officers and directors are on notice that they could be subject to a derivative suit under Nevada’s laws. The court also addressed Respondents’ argument that the fiduciary shield doctrine should apply, noting that the fiduciary shield doctrine does not apply in Nevada because Nevada’s long-arm statute extends to the limits of due process. Finally, the court noted that while the district court held hearings on the motions and ultimately concluded that an individual’s position as a Nevada corporation’s director does not automatically subject them to jurisdiction in Nevada, the district court needed to conduct further factual analysis in order to determine whether the Respondents’ specific conduct in this case subjected them to jurisdiction in Nevada. Vacated and remanded for further proceedings. (Megan L. Starich, Associate in the Reno office of McDonald Carano Wilson LLP).
Rolf Jensen & Associates, Inc. v. Mandalay Corporation et al., 128 Nev. Adv. Op. 42 (August 9, 2012)
Before the Court en banc (Justice Pickering recused). Opinion by Justice Saitta.
Rolf Jensen & Associates, Inc. (“Rolf Jensen”) was hired by Mandalay Corporation (“Mandalay”) to provide consulting services for the construction of an expansion to the casino in compliance with the Americans with Disabilities Act of 1990 (“ADA”). The construction contract called for Rolf Jensen to indemnify Mandalay for damages arising from any act, omission, or willful misconduct by Rolf Jensen in its performance of its obligations. The Department of Justice found post-construction handicap accessibility violations at the casino. Mandalay agreed to retrofit at an estimated cost of $20 million and sued Rolf Jensen for indemnification, breach of contract, breach of express warranty, and negligent misrepresentation. Rolf Jensen argued that claims were preempted by the ADA. Under the ADA, regardless of the intent of an owner of a place of public accommodation, when the facility is not built to be readily accessible to disabled individuals, the owner is liable for the unlawful discrimination. The ADA contains no provisions permitting indemnification or allocation of liability, except in the context of a landlord-tenant relationship. The Court concluded that allowing the indemnification claim would weaken owners’ incentive to prevent violations of the ADA and would conflict with the ADA’s purpose. Owners could use construction contracts to shield themselves from the ADA and ignore their nondelegable ADA responsibilities. The Court further stated that an owner such as Mandalay, a highly sophisticated entity, is in the best position to prevent violations of the ADA. Therefore, the Court ruled that Mandalay’s indemnification claims were preempted by the ADA. However, the Court further ruled that Mandalay’s claims for breach of contract, breach of express warranty, and negligent misrepresentation were also preempted because the damages Mandalay sought only recovery of the retrofitting costs under those claims. The Court ruled that these were simply restated claims for indemnification. Petition granted; district court directed to enter summary judgment in favor of Rolf Jensen. Affirmed in part and reversed in part. (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Rolf Jensen & Associates, Inc. (“Rolf Jensen”) was hired by Mandalay Corporation (“Mandalay”) to provide consulting services for the construction of an expansion to the casino in compliance with the Americans with Disabilities Act of 1990 (“ADA”). The construction contract called for Rolf Jensen to indemnify Mandalay for damages arising from any act, omission, or willful misconduct by Rolf Jensen in its performance of its obligations. The Department of Justice found post-construction handicap accessibility violations at the casino. Mandalay agreed to retrofit at an estimated cost of $20 million and sued Rolf Jensen for indemnification, breach of contract, breach of express warranty, and negligent misrepresentation. Rolf Jensen argued that claims were preempted by the ADA. Under the ADA, regardless of the intent of an owner of a place of public accommodation, when the facility is not built to be readily accessible to disabled individuals, the owner is liable for the unlawful discrimination. The ADA contains no provisions permitting indemnification or allocation of liability, except in the context of a landlord-tenant relationship. The Court concluded that allowing the indemnification claim would weaken owners’ incentive to prevent violations of the ADA and would conflict with the ADA’s purpose. Owners could use construction contracts to shield themselves from the ADA and ignore their nondelegable ADA responsibilities. The Court further stated that an owner such as Mandalay, a highly sophisticated entity, is in the best position to prevent violations of the ADA. Therefore, the Court ruled that Mandalay’s indemnification claims were preempted by the ADA. However, the Court further ruled that Mandalay’s claims for breach of contract, breach of express warranty, and negligent misrepresentation were also preempted because the damages Mandalay sought only recovery of the retrofitting costs under those claims. The Court ruled that these were simply restated claims for indemnification. Petition granted; district court directed to enter summary judgment in favor of Rolf Jensen. Affirmed in part and reversed in part. (Joseph P. Schrage, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In re Contested Election of Mallory, 128 Nev. Adv. Op. 41 (Aug. 9, 2012)
Before the Court en banc. Opinion by Justice Saitta.
Respondent Arthur E. Mallory (“Respondent”) is Churchill County’s district attorney. He was first elected to the office in 1998 and was elected to a fourth consecutive four-year term of office in 2010. Following the most recent reelection, Appellant John O’Connor (“Appellant”) filed a petition to set aside Respondent’s reelection due to term limitations under the Nevada Constitution. The issue presented in this appeal is whether the office of district attorney is a state office for the purpose of determining whether district attorneys are subject to term limits under the “state office” portion of Article 15, Section 3(2) of the Nevada Constitution. Under Article 15, Section 3(2) of the Nevada Constitution, individuals elected to a “state office” or “local governing body” may only serve for 12 years unless the Constitution provides otherwise. The Nevada Supreme Court determined, without need to rely on Secretary of State v. Burk, 124 Nev. 579, 188 P.3d 1112 (2008), as done by the district court, that Article 4, Section 32 of the Nevada Constitution addresses the Legislature’s authority to provide for and abolish certain county offices including “District Attorneys.” By identifying district attorneys as county officers, it necessarily follows that the office of district attorney cannot be considered a “state office.” Thus, the office of district attorney is not subject to the term-limit provision of Article 15, Section 3(2). Affirmed. (Lisa M. Wiltshire, Associate in the Reno office of McDonald Carano Wilson LLP).
Respondent Arthur E. Mallory (“Respondent”) is Churchill County’s district attorney. He was first elected to the office in 1998 and was elected to a fourth consecutive four-year term of office in 2010. Following the most recent reelection, Appellant John O’Connor (“Appellant”) filed a petition to set aside Respondent’s reelection due to term limitations under the Nevada Constitution. The issue presented in this appeal is whether the office of district attorney is a state office for the purpose of determining whether district attorneys are subject to term limits under the “state office” portion of Article 15, Section 3(2) of the Nevada Constitution. Under Article 15, Section 3(2) of the Nevada Constitution, individuals elected to a “state office” or “local governing body” may only serve for 12 years unless the Constitution provides otherwise. The Nevada Supreme Court determined, without need to rely on Secretary of State v. Burk, 124 Nev. 579, 188 P.3d 1112 (2008), as done by the district court, that Article 4, Section 32 of the Nevada Constitution addresses the Legislature’s authority to provide for and abolish certain county offices including “District Attorneys.” By identifying district attorneys as county officers, it necessarily follows that the office of district attorney cannot be considered a “state office.” Thus, the office of district attorney is not subject to the term-limit provision of Article 15, Section 3(2). Affirmed. (Lisa M. Wiltshire, Associate in the Reno office of McDonald Carano Wilson LLP).
Washoe County v. Otto, 128 Nev. Adv. Op. 40 (Aug. 9, 2012)
Before the Court en banc (Justice Pickering recused). Opinion by Justice Hardesty.
In this appeal, another case in the continuing saga of challenges to property taxes in Incline Village, the Court held that a party must strictly comply with the Nevada Administrative Procedure Act naming requirement found at NRS 233B.130(2)(a), as a prerequisite to invoke the district court’s jurisdiction. When a petitioner fails to name in its petition each party of record to the underlying administrative proceedings, the petition is jurisdictionally defective and must be dismissed. Further, if the petitioner fails to invoke the district court’s jurisdiction by naming the proper parties within the statutory time limit, the petition may not subsequently be amended to cure the jurisdictional defect. Affirmed. (Brent Keele, Associate in the Reno office of McDonald Carano Wilson LLP).
In this appeal, another case in the continuing saga of challenges to property taxes in Incline Village, the Court held that a party must strictly comply with the Nevada Administrative Procedure Act naming requirement found at NRS 233B.130(2)(a), as a prerequisite to invoke the district court’s jurisdiction. When a petitioner fails to name in its petition each party of record to the underlying administrative proceedings, the petition is jurisdictionally defective and must be dismissed. Further, if the petitioner fails to invoke the district court’s jurisdiction by naming the proper parties within the statutory time limit, the petition may not subsequently be amended to cure the jurisdictional defect. Affirmed. (Brent Keele, Associate in the Reno office of McDonald Carano Wilson LLP).
Liapis v. Dist. Ct., 128 Nev. Adv. Op. 39 (Aug. 9, 2012)
Before Justices Cherry, Pickering, and Hardesty. Opinion by Justice Hardesty.
In this original petition for writ of mandamus, the Court faced two novel issues: should an attorney who represents one of his parents in a divorce action between both parents be disqualified either (1) because the attorney’s representation will constitute the appearance of impropriety or (2) because representing the parent will violate the concurrent-conflict-of-interest rule in Nevada Rule of Professional Conduct (RPC) 1.7? In answering the first issue, the Court held that there was no disqualifying appearance of impropriety because the appearance of impropriety is no longer recognized by the American Bar Association and the Court has not recognized the appearance of impropriety as a basis for disqualifying counsel except in the limited circumstance of a public lawyer. Thus, as a general matter, an appearance of impropriety without more does not support a lawyer’s disqualification. The Court resolved the second issue by holding there was no violation of RPC 1.7 unless there was an ethical breach by the attorney that affects the fairness of the entire litigation or a proven confidential relationship between the nonclient parent and the attorney. Moreover, the Court held that the nonclient parent did not have standing to assert a conflict claim, largely because she was not a former or current client of her son, the mother-son relationship did not establish a confidential relationship, and there was no suggestion of any other legally recognizable confidential relationship. Because the district court manifestly abused its discretion in disqualifying counsel, the court granted the appellant’s petition and instructed the district court to vacate its order granting Respondent’s motion to disqualify counsel. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In this original petition for writ of mandamus, the Court faced two novel issues: should an attorney who represents one of his parents in a divorce action between both parents be disqualified either (1) because the attorney’s representation will constitute the appearance of impropriety or (2) because representing the parent will violate the concurrent-conflict-of-interest rule in Nevada Rule of Professional Conduct (RPC) 1.7? In answering the first issue, the Court held that there was no disqualifying appearance of impropriety because the appearance of impropriety is no longer recognized by the American Bar Association and the Court has not recognized the appearance of impropriety as a basis for disqualifying counsel except in the limited circumstance of a public lawyer. Thus, as a general matter, an appearance of impropriety without more does not support a lawyer’s disqualification. The Court resolved the second issue by holding there was no violation of RPC 1.7 unless there was an ethical breach by the attorney that affects the fairness of the entire litigation or a proven confidential relationship between the nonclient parent and the attorney. Moreover, the Court held that the nonclient parent did not have standing to assert a conflict claim, largely because she was not a former or current client of her son, the mother-son relationship did not establish a confidential relationship, and there was no suggestion of any other legally recognizable confidential relationship. Because the district court manifestly abused its discretion in disqualifying counsel, the court granted the appellant’s petition and instructed the district court to vacate its order granting Respondent’s motion to disqualify counsel. (Rory T. Kay, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Bonnell v. Lawrence, 128 Nev. Adv. Op. 37, 282 P.3d 712 (Aug. 9, 2012)
Before Justices Cherry, Pickering, and Hardesty. Opinion by Justice Pickering.
In this appeal, the Court addressed the standard required for a party who brings an independent action for relief of judgment under NRCP 60(b). NRCP 60(b) permits relief from judgment by either motion or an independent action. While motions for relief from judgment are governed by specific time deadlines, the reference to an independent action is made only in a savings clause in NRCP 60(b), which states that the rule does not preclude courts from entertaining an independent action to relieve a party from judgment. Since the strict timelines of NRCP 60(b) do not apply to independent actions, the Court explained, such an action should be available only to prevent a “grave miscarriage of justice.” The Court held that in this case, Bonnell’s allegations of inadequate notice regarding summary judgment did not constitute the “grave miscarriage of justice” required to sustain an independent action under NRCP 60(b). Moreover, the Court noted that Respondents’ counsel’s actions did not excuse Bonnell’s failure to bring a motion for relief under NRCP 60(b) within the Rule’s 6-month period. Failing to find anything in the record of either suit that would suggest the threat of a “grave miscarriage of justice,” the Supreme Court affirmed the district court’s dismissal of the independent action. Affirmed. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
In this appeal, the Court addressed the standard required for a party who brings an independent action for relief of judgment under NRCP 60(b). NRCP 60(b) permits relief from judgment by either motion or an independent action. While motions for relief from judgment are governed by specific time deadlines, the reference to an independent action is made only in a savings clause in NRCP 60(b), which states that the rule does not preclude courts from entertaining an independent action to relieve a party from judgment. Since the strict timelines of NRCP 60(b) do not apply to independent actions, the Court explained, such an action should be available only to prevent a “grave miscarriage of justice.” The Court held that in this case, Bonnell’s allegations of inadequate notice regarding summary judgment did not constitute the “grave miscarriage of justice” required to sustain an independent action under NRCP 60(b). Moreover, the Court noted that Respondents’ counsel’s actions did not excuse Bonnell’s failure to bring a motion for relief under NRCP 60(b) within the Rule’s 6-month period. Failing to find anything in the record of either suit that would suggest the threat of a “grave miscarriage of justice,” the Supreme Court affirmed the district court’s dismissal of the independent action. Affirmed. (Jeff S. Riesenmy, Associate in the Las Vegas office of McDonald Carano Wilson.)
DeBoer v. Sr. Bridges of Sparks Fam. Hosp., 128 Nev. Adv. Op. 38 (Aug. 9, 2012)
Before Justices Cherry, Pickering, and Hardesty.
Opinion by Justice Cherry.
In this appeal, the court examined the duty of care owed by a medical facility when performing nonmedical functions. The Named Appellant, as guardian for a cognitively impaired adult, appealed the district court’s dismissal of a negligence action brought against a senior care facility in connection with the execution of a power of attorney that resulted in Appellant being injured by a third party. An employee of Respondent facilitated a power of attorney in favor of a third party, which was signed by Appellant. The third party financially exploited Appellant, and Appellant sued Respondent for breaching its duty of care by allowing Appellant to sign the power of attorney, when a reasonable investigation would have established that Appellant lacked the requisite mental competence to protect herself from exploitation. The district court dismissed the claim pursuant to a NRCP 12(b)(5) motion, finding that Respondent owed Appellant no duty beyond providing competent medical care. On appeal, the Supreme Court overturned the dismissal, establishing that because immunity from general liability cannot be enjoyed simply due to one’s legal status, medical facilities are required to conform to normal standards of reasonableness under general principles of tort law when performing nonmedical functions. Because potential factual issues existed as to whether Respondent acted negligently in carrying out nonmedical functions, the court reversed and remanded. (Mark Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP).
In this appeal, the court examined the duty of care owed by a medical facility when performing nonmedical functions. The Named Appellant, as guardian for a cognitively impaired adult, appealed the district court’s dismissal of a negligence action brought against a senior care facility in connection with the execution of a power of attorney that resulted in Appellant being injured by a third party. An employee of Respondent facilitated a power of attorney in favor of a third party, which was signed by Appellant. The third party financially exploited Appellant, and Appellant sued Respondent for breaching its duty of care by allowing Appellant to sign the power of attorney, when a reasonable investigation would have established that Appellant lacked the requisite mental competence to protect herself from exploitation. The district court dismissed the claim pursuant to a NRCP 12(b)(5) motion, finding that Respondent owed Appellant no duty beyond providing competent medical care. On appeal, the Supreme Court overturned the dismissal, establishing that because immunity from general liability cannot be enjoyed simply due to one’s legal status, medical facilities are required to conform to normal standards of reasonableness under general principles of tort law when performing nonmedical functions. Because potential factual issues existed as to whether Respondent acted negligently in carrying out nonmedical functions, the court reversed and remanded. (Mark Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP).
Road & Highway Builders v. N. Nev. Rebar, 128 Nev. Adv. Op. 36 (Aug. 9, 2012)
Before Justices Cherry, Gibbons, and Pickering. Opinion by Justice Cherry.
In this appeal, the Court held that a claim for fraudulent inducement is barred as a matter of law if the claim directly contradicts the terms of the written contract. The Court based its conclusion on principles underlying the parol evidence rule and broadly suggested that any claim that is contrary to the written terms of a complete contract would be barred as a matter of law. In addressing compensatory damages for the claims of breach of contract and breach of the covenant of good faith and fair dealing, the Court reiterated that damages for breach of contract should include lost profit or expectancy damages. The Court allowed the award of lost profits for work that had been performed despite the fact that the contract was terminable at will, distinguishing a case that prevented the recovery of lost future profits when a contract is terminable at will. Affirmed in part and reversed in part. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).
In this appeal, the Court held that a claim for fraudulent inducement is barred as a matter of law if the claim directly contradicts the terms of the written contract. The Court based its conclusion on principles underlying the parol evidence rule and broadly suggested that any claim that is contrary to the written terms of a complete contract would be barred as a matter of law. In addressing compensatory damages for the claims of breach of contract and breach of the covenant of good faith and fair dealing, the Court reiterated that damages for breach of contract should include lost profit or expectancy damages. The Court allowed the award of lost profits for work that had been performed despite the fact that the contract was terminable at will, distinguishing a case that prevented the recovery of lost future profits when a contract is terminable at will. Affirmed in part and reversed in part. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP).
Thursday, August 2, 2012
State, Bus. & Indus. v. Nev. Ass’n Servs., 128 Nev. Adv. Op. 34 (Aug. 2, 2012)
Before Justices Douglas, Gibbons, and Parraguirre. Opinion by Justice Gibbons.
This action arose out of a dispute between the State of Nevada Department of Business and Industry, the Financial Institutions Division and its Commissioner (Department) and Nevada Association Services (NAS). In November 2010, the Department issued an advisory opinion in which it interpreted certain statues within NRS 116, in particular NRS 116.3116, and their importance in the Department’s regulation of collection agencies. NAS filed its complaint and motion for preliminary injunction in district court, arguing that the Department lacked jurisdiction to issue advisory opinions interpreting provisions of NRS Chapter 116. The district court granted NAS’s request for a preliminary injunction. The Court affirmed the district court’s order. In reaching this conclusion, the Court reviewed several sections of NRS 116. Under NRS 116.615, the Court found the language to be clear that the Commission for Common Interest Communities and Condominium Hotels and the Real Estate Division are responsible for regulating and administering the chapter and there is no provision granting any other commission or department the authority to regulate or interpret the language of the chapter. Consequently, the Court found the Department lacked jurisdiction to issue an advisory opinion interpreting NRS Chapter 116 and thus the district court did not abuse its discretion in determining that NAS had a likelihood of success on the merits. Furthermore, the Court held the district court properly determined that the mere act of filing a disciplinary action against NAS would cause irreparable harm. In its findings, the Court explained that it was possible for the Department to revoke NAS’s license without a hearing under its powers , thus if such an instance occurred, NAS would be unable to conduct business during that time which could lead to irreparable harm. Affirmed. (Anthony Carano, Associate in the Reno office of McDonald Carano Wilson LLP).
This action arose out of a dispute between the State of Nevada Department of Business and Industry, the Financial Institutions Division and its Commissioner (Department) and Nevada Association Services (NAS). In November 2010, the Department issued an advisory opinion in which it interpreted certain statues within NRS 116, in particular NRS 116.3116, and their importance in the Department’s regulation of collection agencies. NAS filed its complaint and motion for preliminary injunction in district court, arguing that the Department lacked jurisdiction to issue advisory opinions interpreting provisions of NRS Chapter 116. The district court granted NAS’s request for a preliminary injunction. The Court affirmed the district court’s order. In reaching this conclusion, the Court reviewed several sections of NRS 116. Under NRS 116.615, the Court found the language to be clear that the Commission for Common Interest Communities and Condominium Hotels and the Real Estate Division are responsible for regulating and administering the chapter and there is no provision granting any other commission or department the authority to regulate or interpret the language of the chapter. Consequently, the Court found the Department lacked jurisdiction to issue an advisory opinion interpreting NRS Chapter 116 and thus the district court did not abuse its discretion in determining that NAS had a likelihood of success on the merits. Furthermore, the Court held the district court properly determined that the mere act of filing a disciplinary action against NAS would cause irreparable harm. In its findings, the Court explained that it was possible for the Department to revoke NAS’s license without a hearing under its powers , thus if such an instance occurred, NAS would be unable to conduct business during that time which could lead to irreparable harm. Affirmed. (Anthony Carano, Associate in the Reno office of McDonald Carano Wilson LLP).
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