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Nevada Cease and Desist Letter Under Noncompete Clause Citing Camco Decision

 

This letter is written on behalf of NE LLC (“Ne” or your “Former Employer”), with
respect to that certain At Will Employment Agreement (“Employment Agreement”)
which you executed with your Former Employer on or about July 21, 2014, and
also with respect to that certain Severance Agreement (the “Severance
Agreement”) which you executed with NE on or about November 18, 2014.

The Severance Agreement included the following provisions, which not only
acknowledged certain of your existing obligations to NE under the Employment
Agreement, but which also restated those obligations as new and separate
promises made by you, and detrimentally relied upon by NE in entering into the
Severance Agreement with you:

Employee acknowledges and agrees that the Written Employment Agreement contains certain Non-competition provisions which are binding during employment, certain
non-solicitation of Employer Client provisions which survive termination of
employment and remain effective for 12 months following the termination of
employment
and certain non-solicitation of Employer employees provisions
which survive and remain effective for two years after termination of
employment (all of which dates shall be deemed to begin to run, hereunder, no earlier than January 1, 2015) and certain provisions regarding confidential information, Trade Secrets and ownership of inventions which survive termination of employment for an
unlimited period of time, together with other provisions which survive
termination of employment, and Employee expressly agrees to continue to abide by all of said terms of the Written Employment Agreement pursuant to the terms thereof including during the remainder of his employment, and thereafter.  Employee also expressly agrees
that he shall not be entitled to solicit the business of any client or customer
of Employer, on his own behalf or on behalf of any other person or entity,
unless he receives the express written permission of Employer, executed by JG,
prior to initiating any action whatsoever to do so, for a period of one (1)
year after December 31, 2014
. Severance Agreement at ¶8 [emphasis added].

The non-solicitation obligations you agreed to, with respect to existing NE
clients, are fully enforceable under Nevada law.  Indeed, a much broader restriction against
any post-employment competition for a certain time period, would be enforceable
in this State.  Camco, Inc. v. Baker, 936 P.2d 829 (Nev. 1997).  Hence, NE acted in reasonable good faith in seeking only a less restrictive covenant from you, solely as to the
solicitation of its existing customers.

In violation of these terms, on January 5, 2015, you reached out to MP, an officer
of PLA (hereinafter the “Pla”), the entity which operates the Pla Hotel, an
existing customer of NE, on behalf of a company known as SK, with the intent to
arrange a meeting between principals of the Pla and SK, and with the further
intent of selling SK products and services to the Pla, including products
identified in your communication and described in advertising material for said
products attached thereto.  SK provides products and services which compete directly with the products and services provided by NE, including managed information technology (“IT”) services.  You engaged in this conduct in violation of the surviving provisions of your Employment Agreement, and without the prior permission of JG, as required in your Severance Agreement.

This conduct on your part was a breach of the promises you agreed upon in executing
those agreements.  Based thereon, this letter is written to demand that you immediately cease and desist from taking any further action in violation of your obligations to NE under those
agreements.  For example, you are to immediately cease any further communications with the Pla, or any agent or employee thereof, on behalf of Ska, or on behalf of any other entity which
provides any IT products or services, including any such products or services
which compete with those offered by NE, such as cloud computing, offsite server
hosting, managed services, IT troubleshooting and repair, etc.  We also hereby demand that you immediately inform Ska, or any other person or entity on whose behalf you are performing
any services, either independently or as a full time in-house employee, of your
obligations to NE.

Your intentional actions are in direct violation of NE’s rights and give rise to
numerous and substantial claims against you personally.  Indeed, intentionally interfering with your Former Employer’s business and willfully competing with its customers in a
manner maliciously calculated to cause it economic harm, would potentially be
actionable even without the breaches of contract involved in this case.  These actions give rise to numerous claims, including, but not limited to:  (i) fraud, (ii) intentional interference with prospective economic advantage, (iii) intentional interference with contractual relations, (iv) breach of contract, (v) breach of the implied covenant of good faith and fair dealing, (vi)
injunctive relief; and (vii) punitive damages.

Without waiving any of its rights in law or equity, all of which it expressly reserves,
NetEffect hereby demands that you:

(1)          
Immediately cease all contact with NE customers;

(2)              
Within twenty-four (24) hours from the date of this letter provide a list of all NE
customers you have contacted, and any and all products or services you have
arranged to be provided to such customers, and any and all emails, texts,
written communications, bids, proposals, or invoices you have submitted to such
customers;

(3)              
Within three (3) business days from the date of this letter turn over all proceeds you
have gained from your activities, together with any severance payments you
received during December 2014 in bad faith; and

(4)              
Within twenty-four (24) hours from the date of this letter, confirm in writing that
you have ceased and will not resume contact with your Former Employer’s
customers.

(5)              
Unless it receives immediate written confirmation that you will comply with the
above demands, NE will be forced to assume that you do not intend to
voluntarily take the necessary actions outlined above.  In that event, NE reserves the right to
pursue all of its available legal and equitable remedies in the appropriate
forum, including via the commencement of formal legal action against you without
further notice

(6)              
Because your promises to NE were utilized to induce NE to promise to pay you certain
severance moneys, including moneys which would otherwise remain due and owing
hereafter, and because those obligations on the part of NE were contingent and
conditioned on your remaining in compliance under the Severance Agreement, any
moneys due and owing to you from NE as and for post-employment pay, are hereby
subject to being forfeited, unless and until this matter is timely resolved in
a manner fully satisfactory to NE.  You should also be aware that, in the event NE is required to seek injunctive relief against any ongoing breaches by you of the non-solicitation provisions
of the Employment Agreement or Severance Agreement, that it will be seeking its
costs and attorneys’ fees from you for being required to engage in any such
litigation.  Please immediately respond to the undersigned (or have your counsel so respond), so that a determination may be made with respect to whether this matter can be resolved in a manner which prevents such adverse outcomes. 

(7)              
This letter is not intended and should not be treated as a full statement of the
facts or of the applicable law, an admission of any fact, or a waiver or
limitation of any of NE’s rights or remedies, all of which are specifically
retained and reserved.

Thank you for your attention to the foregoing.

 

Very truly yours,

 

ALBRIGHT, STODDARD, WARNICK & ALBRIGHT

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah.  Our firm’s practice includes a strong emphasis on construction law, contracts and litigation in the jurisdictions where we are licensed.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services.  Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation.  Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Tips for Driving in the Rain in Las Vegas, Nevada

 

Doc3

143 wrecks reported in 10 hours because of rain, Jan. 12, 2015, Las Vegas Review Journal

Rain has been the cause of thousands of car accidents year in and year out, and rain is especially dangerous in dry weather states Nevada.. Our Las Vegas personal injury attorneys know that some of the most heavily populated areas in Southern Nevada — especially Clark County— only have rain periodically during the year, (less than 4 inches per year)  and many people forget how to drive in it. Therefore, drivers need to understand exactly how rain can contribute to accidents.  For example, just yesterday the Las Vegas metro area experienced over 140 accidents in just a single day in the midst of a lengthy rain storm.

A Lot of Drivers Don’t Know How to Drive in the Rain

In bad weather conditions, there are two types of drivers who can significantly increase the risk to others: excessively timid drivers and reckless drivers.

Excessively timid drivers tend to overestimate the danger of weather conditions and drive at unreasonably low speeds. When the weather limits the number of available traffic lanes, such as can happen following heavy rain, this type of driver can cause traffic to back up, increasing the risk of a rear end accident, particularly on I-15 and our Las Vegas beltway, I-215.

Reckless drivers often ignore the consequences of bad weather and may even think it is a good thing that the weather has forced a lot of other drivers off of the road. Reckless drivers may well drive at full highway speed or greater, even when visibility is low or the roads are drenched. Even with four wheel drive (4WD), cars can still skid. When they lose control on a slippery road, their high speed makes it much more likely for a serious car accident to occur.

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Rain Makes the Road Slippery

Rain can make it more difficult to stay on a roadway, to stop, or to avoid colliding with other vehicles. This is especially true when it first starts raining because Las Vegas roads are their most slippery at the beginning of a rainstorm. This is when dust, oil and grime mix with the water making a slippery roadway surface.  When the road first gets wet, oil rises to the surface and creates a greasy surface. If you can’t stop your car in time, that’s when accidents happen. Often the roads are safer after the rain has washed away the greasy surface.

Rain Decreases Visibility

During rain storms, it can be difficult for drivers to see to see other cars. When rain is combined with dirty water kicked up from the road by other drivers, windshields can quickly become dirty. That is why it is always important to make sure that your car has functional windshield wipers.

Tips for Driving in Rainy Weather

Car and truck accidents become significantly more common during periods of inclement weather. With the transition from fall to winter weather in the arid west, driving conditions can change suddenly, requiring extra caution on the road. Our experienced personal injury litigators at Albright Stoddard focus our vehicle accident practice on obtaining compensation for injured motorists, passengers and pedestrians. Mindful of the importance of accident avoidance, we offer these reminders to help you prepare for the weather ahead and stay safe on the road.

Regularly check your wipers. Windshield wiper blades should be replaced at least once a year to make sure they stay in good conditions. If your wipers are not effectively cleaning your windshield or leaving streaks behind them, it’s time to get replacements.

Check your tires. Tires should be in good condition, having an appropriate amount of tread and no bald spots. They should also have the proper amount of air pressure.

Use your headlights. When it begins to rain, visibility can quickly start to suffer on the road. Make sure you have your headlights on so that other people on the road can more easily see you.

Watch your speed. Refrain from speeding when it’s raining.

- Apply the brakes when you go into a curve, and if you happen to skid, stay calm and get off the gas, steering in the direction you want to go.

- Hydroplaning can occur when your vehicle rides on top of the water, often at speed no greater than 40 mph.

- Check your tire tread. Bald tires may feel fine on dry roads but they become unsafe in heavy rain or snow.

- According to the National Safety Council, each year, 75 percent of weather-related vehicle crashes occur on wet pavement and 47 percent happen during rainfall.

Leave plenty of space in front of you. When driving on the freeway, leave more space between you and the other cars, since stopping distance time is, on the average, twice as long in the rain.

These are just a few of the facts to keep in mind as the weather becomes more severe in Nevada.

Car Accident Prevention Tips For the Rain in Nevada

1. Drive slower.

This is an obvious but important tip, as it allows for better reaction times. Rainwater causes grease and oil built up on the road to surface and tires traction suffers as a result. If you drive slower, your tire traction will improve and you will also have more time to brake.

2. Keep your eyes on the car ahead of you.

In the rain, it’s often hard to see very far ahead of you. On a clear sunny day, you can see the traffic situation a couple hundred feet down the road and react accordingly. On a rainy day, it helps to watch for the reaction of the driver ahead of you. When he brakes, you brake. Still keep a safe following distance from the car in front because you’ll need to brake more slowly on a slippery road to avoid skidding. So stay as far from the car in front of you as possible while also remaining close enough to keep it in clear sight.

3. Do not brake suddenly.

Sudden braking may cause a skid. Since the roads are slippery, stopping the wheels too quickly may cause them to lose all traction with the road, and an imminent car accident becomes a distinct possibility. In the case that skidding occurs, however, remain calm and do not make sudden turns because doing so may make the skidding even more dangerous. Just try to remain calm and steer straight until you feel the car regain traction.

4. Correctly defog your windows.

The windows on your car might fog, further limiting you visibility. You try to defog with the heater, but that will only further fog up your windows. To defog, keep your air conditioning blowing at both your windshield and your back window. If your car has a defog function, just press the button, and defogging should start automatically. Keep it on until all windows are clear!

5. Avoid standing water or flood water.

Most roads are built with the middle of the road higher than the sides, so try to stay near the middle of the road where it would be less likely to have a buildup of rainwater. If you do expect to go through standing water, lightly tap the brake pedal beforehand to dry the tire off a little.

Ideally, all rainy car accidents could be prevented if people stopped driving when it rains, but that is an unrealistic assumption. Everyone has things they must attend to, so just keep these tips in mind when driving in the rain. You can always pull over to the side and wait it out if you really think it’s raining too hard to drive. Nothing can make up for the loss of loved one in a fatal car accident, so always yield to safety.

ASWA Safety tips for driving in rain in Las Vegas:

When you are driving in heavy rain, visibility is decreased and hindered, so the following tips can help you avoid an accident.

Check your tires for tread and for proper inflation to avoid getting into a hydroplaning situation.

Avoid flooded roads and intersections. You never know when a flooded road can cause your vehicle to stall or when a flash flood could carry your vehicle away.

Check your brakes to make sure they are not saturated after driving through a puddle by braking lightly.

Slow down. Stopping distances are longer in the rain.

Turn gently. Turn gently on curves as your stopping and on highway on/off ramps as stopping distances are longer in the rain.

Don't follow too closely so you can react if a car brakes suddenly.

Use your low beams as high beams as rain can create a glare.

Use your turn signal to let other drivers know of your intentions.

Pull over and quit driving when rain is so heavy that you cannot drive safely. Try to pull completely off the road and use your emergency blinkers.

Is The Judgment Debtor a Nevada Resident with a Valid Nevada Homestead

 

 

Determining if Judgment Debtor is a Nevada resident requires proof of a variety of different factors

 

Generally. “Domicile” refers to your primary residence. The term is often used interchangeably with “residence”, but the term “legal residence” is closer. You may have several residence or places where you reside, but, in the United States, it is well accepted law that you
may only have one domicile or one legal residence.

 

If you make Nevada your “domicile”, it does not mean that Nevada is your exclusive place of residence, but it generally refers to the place that you reside most of the time or, at least, more than anywhere else during any given calendar year.

 

Each state has its own rules for establishing
residency or domicile. In Nevada, and presumably in many other states, there
are different definitions for different purposes, such as for filing a
complaint for divorce, for voter registration, and in-state tuition and a state
college or university.  It is possible for more than one state to assert
that you are domiciled in that state. If you want to avoid being classified as
a resident or domiciliary of another state, it is important to understand that
state’s laws. Those laws can be quite complex, particularly if they relate to
business and taxation. It may be necessary to follow procedures to formally
abandon your former domicile.

 

Nevada Supreme Court

 

In the case of Fleming v. Fleming, 36 Nev. 135, 134 Pac. 445, the Nevada
Supreme court held: “It is our judgment that the residence required by
the statute and contemplated by the session act was actual residence;
that is, physical, corporeal presence, and not alone legal residence
or domicile.”.... The court then explained that “Legal residence
consists of fact and intention combined; both must concur, and, when one's legal
residence is fixed, it requires both fact and intention to change it.”

 

In Williams v. Clark County Dist. Attorney , Supreme Court of Nevada, July 25,
2002118 Nev. 47350 P.3d 53639897, the court in an election campaign dispute,
explained that:

...In other words, if a candidate with more
than one permanent habitation can simply choose which habitation is the “actual
residence” for purposes of candidacy, without any consideration of legal
domicile, then the requirement of legal domicile, within
the definition of actual residence, ceases to exist....

...  As previously stated, a person can have
but one legal domicile, and cannot simply “declare” this legal
domicile, because it, by definition, depends on permanency and intent.

 

Nevada Statutory Law

281.050. Residence for purposes of eligibility for office is actual residence;  determination of residence;  vacancy in office upon certain changes in residence

NV ST 281.050West's Nevada Revised Statutes Annotated; Title 23. Public Officers and Employees (Chapters 281-289)

...A person may have an actual residence
in one place and a legal residence in another, and a person may
have several actual residences, but a person may have only one legal
residence or domicile....

...Statute providing that if a
person absents himself from the jurisdiction of his residence with the
intention in good faith to return without delay and continue his residence,
the period of absence must not be considered in determining the question of residence,
only applied when determining legal domicile, not actual residency
for purposes of eligibility to stand as candidate for mayoral election...

Florida Statute as example:

The
  legal language from the Florida legislature defines a Permanent Residence as
  the following:

 

 

“Permanent   Residence”……….. means the place where a person has his or her true,
  fixed and permanent home and principal establishment to which, whenever
  absent, he or she has the intention of returning. A person may have
  only one permanent residence at a time*; and, once a permanent
  residence is established, it is presumed to continue until he or she
  shows that a change has occurred.
Florida Statute, Section 196.012(18)

 

 

California Statutes

 

In determining residency for homestead purposes, courts consider (1) physical
occupancy of the property and (2) the intention with which the property is
occupied. In re Bruton, (BC SD CA 1994)167 BR 923, 926. The judgment debtor,
must live in the residence at the time the judgment is recorded and at the time
of the execution of the judgment or else the exemption will not apply. (Cal.
Code of Civ. Proc. § 704.720.)

 

DUAL RESIDENCY

If two states each determine that an individual is a “resident” (domiciliary or
statutory resident) subject to tax, that individual may be subject to
double taxation of his or her income. This situation can occur when an
individual attempts to change his domicile unsuccessfully, or when an
individual owns a residence in another state and time in the other state
now exceeds the minimum statutory threshold of days to subject that individual
to tax as a statutory resident.

 

Nevada Homestead Exemption

The Nevada Homestead Exemption protects up to $550,000 of the equity in your home. As long as your equity doesn't exceed $550,000, no creditor mark can sell your home to recover a debt, and no bankruptcy trustee can include your home in the bankruptcy estate. The
Nevada Homestead Exemption protects debtors' homes from consumer debts only. It
will not protect your home from seizure for delinquent alimony, delinquent
child support, mechanic's liens, liens for unpaid taxes or debts secured by a
deed of trust or mortgage. Regardless of how much equity you have, judgments
for these types of debts may result in the sale of your home. Additionally, if
the property was purchased with fraudulently procured funds, some case law
recognizes the right of the plaintiff to recover against the home in spite of
the homestead.

The Nevada Homestead Exemption protects debtors' homes from consumer debts only. It will not protect your home from seizure for delinquent alimony, delinquent child support, mechanic's liens, liens for unpaid taxes or debts secured by a deed of trust or mortgage.
Regardless of how much equity you have, judgments for these types of debts may
result in the sale of your home.

A homestead declaration will not prevent your home from being sold to pay a
judgment for:

 Taxes

 A mortgage, trust deed or other loan arrangement used to purchase or refinance your
property or improvements to your property.

 A mechanic’s lien or other obligation to pay because of improvements made to your property.

 Any lien to which you agree (consensual). 

INDICIA OF DOMICILE 

Physical Presence. Under Nevada law, the legal definition of domicile includes actual physical presence combined with an intent to remain indefinitely. You cannot be a Nevada resident unless you are here at least some of the time. If you leave, you must have the intent to return. Generally the legal residence of a person is in Nevada if the person has been physically present within the State during the period for which residency is claimed. Legal residence starts on the
day that such actual physical presence begins. Sometimes the more important
question is how does a person become a nonresident of his former state?

How can I change my residency to Nevada?

The simple answer is you need to move here. You will have to abandon your
domicile in California or elsewhere and establish domicile in Nevada. If you
maintain multiple residences, you have to make Nevada your principal place of
residence, your primary home.

Do I have to move to Nevada permanently?

In order to considered a nonresident of your former state you must generally
establish that your intent to leave your former state was for other than a
temporary or transitory purpose. If your absence is temporary you will
generally continue to be considered a resident of your former state. 

Key Elements the court may consider

While physical presence is a major element in establishing your domicile, proof of domicile also includes a number of key elements that are looked at as indicia of domicile, which include doing the following — or at least most of the following — in Nevada: 

(a) Moving into a home, condominium, or apartment with the furniture, furnishings, and possessions that indicate an intent to make this your primary residence;

(b) Filing an declaration of domicile with the county clerk;

(c) Registering to vote;

(d) Registering your vehicles;

(e) Obtaining a driver’s license;

(f) Recording an executed homestead declaration with respect to your primary Nevada residence with the county recorder;

(g) Using your Nevada address for state and federal tax purposes and filing a change of address with the IRS and other tax authorities on the prescribed form(s);

(h) Using your Nevada address for primary correspondence, including credit cards, magazines, bank accounts, etc. and filing a change-of-address form with the U.S. Postal Service;

(i) Transferring significant cash and securities holdings to Nevada institutions;

(j) Using — but not necessarily exclusively — one or more Nevada advisors, such as a Nevada attorney or accountant;

(k) Having your trust and/or will updated to reflect your Nevada residency and to reflect Nevada law; and

(l) Establishing memberships in civic, religious, and community organizations.

 Declaration of Domicile. Nevada law permits a person to declare that Nevada is his or her domicile residence by signing “a sworn statement showing that he resides in and maintains a residence in that county, which he recognizes and intends to maintain as his permanent home.”

 

CONCLUSION

To be a Nevada resident essentially requires that you be here for a majority of the time with the intent to remain here.

If it is important that other states consider you as a Nevada resident, the more “indicia of domicile” that point to Nevada, the more likely you are to be successful.

 

Warning:

 Declaring yourself a resident or domiciliary of a state is not enough. You actually have to spend more time living here than you live anywhere else. If a couple spends nine
months a year in California and three months a year in Nevada, they are
California residents even if they have done most of the things mentioned above
that would show that they are Nevada residents. 

Most people who are not bona fide residents of Nevada leave a paper trail (with receipts for purchases such as gas, food, and living expenses) and an electronic trail (with things such as cell-phone calls and ATM withdrawals) that is evidence of their real domicile.

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah.  Our firm’s practice includes a strong emphasis on construction law, contracts and litigation in the jurisdictions where we are licensed.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services.  Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation.  Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

Jurisdiction of Nevada Probate Courts over Trust Disputes

 

Nevada courts obtain jurisdiction over trusts through the Nevada Revised Statutes.
Specifically, NRS 164.015 provides the courts have exclusive jurisdiction of
proceedings initiated by the petition of an interested person concerning the
internal affairs of a nontestamentary trust. Proceedings which may be
maintained under this section are those concerning the administration
and distribution of trusts, the declaration of rights and the determination of
other matters involving trustees and beneficiaries of trusts, including
petitions with respect to a non-testamentary trust for any appropriate relief
provided with respect to a testamentary trust.  

Under section 164.010(1), upon petition of a trustee, the settlor, or a beneficiary,
“the district court of the county in which the trustee resides or conducts
business, or in which the trust has been domiciled, shall . . . [have]
jurisdiction of the trust as a proceeding in rem.”  This in rem distinction
is interesting because not only does the court have jurisdiction over the trust
itself (i.e., the res), it also has jurisdiction over the trustee through in personam jurisdiction, as well as jurisdiction over any agent to which management or investment duties are delegated.  NRS 164.670(4).

 

In Diotallevi v. Sierra Development Company, 95 Nev. 164, 591 P.2d 270 (1979), the Nevada Supreme Court held as follows: 

Since its adoption in 1941, NRS Chpt. 153 has permitted probate courts to retain jurisdiction over testamentary trusts “for the purpose of the settlement of accounts…and for the distribution of the residue to those entitled to it.”  …. NRS 153.040(1) provides that
trustees may “petition the court, from time to time, for instructions as to the
administration of the trust.”  This [same] provision of the California
statute has been interpreted by the California courts as conferring upon
probate courts jurisdiction over the administration of trust matters when such
matters are brought to the court by the trustees themselves.  See in re
Keet’s Estate.  15 Cal. 2d 328, 100 P.2d 1045 (1940); In re Smith’s Estate
41 P.2d 565 (1935)  In this case, the matter was  before the court as
a result of a trustee’s petition.  Therefore, NRS 153.040 provided the
predicate for the court’s jurisdiction.”  Id. at 167.  

 

Similarly, in Tsai v Hsu, 2010 WL 3270973 (2010), the Nevada Supreme Court in an unpublished case, noted that unlike in some other decisions which were reversed on appeal because indispensable trust parties were not joined, the lower courts “order in this
case affected a trust where both co-trustees were parties to the litigation.  Olsen 874 P.2d at 780; Guerin, 953 P.2d at 720.  Unlike Schwab, where a nonparty owned the asset being disputed in the district court, the assets in dispute in this case are controlled by Hsu and Tsai, the co-trustees and parties to the proceedings.  646 P.2d at 1212.  The purpose of this litigation was to determine Hsu and Tsai’s intent for creating the trust.  Because Hsu and Tsai were the appropriate parties for this case, we conclude that Tsai’s joinder argument fails.” 

 

NRCP 68 and Nevada Offers of Judgment

 

In Fleischer v. August, 103 Nev. 242, 737 P.2d 518 (1987), the Nevada Supreme Court held that an offeree was not entitled to seek additional costs after accepting an offer of judgment
which expressly stated that it included costs.  The offer was for “fifty
thousand dollars ($50,000), just as in the case at bar, plus costs. 
Despite the offeror’s counsel stating that the offer of judgment was for a flat
sum, the offeree filed and served a notice of acceptance of the offer and a
memorandum of costs and a proposed judgment which included costs the amount of
$4,958.24 on top of the $50,000. 

 

The district court in Nevada entered the judgment submitted and the appeal ensued.  The offeree contended that the offer had to be for $50,000 plus the costs.  The
offeror argued that the specific wording of the Offer of Judgment was clear and
unambiguous and was even clarified later in a phone conversation.  The
court agreed with the offeror. 

 

The Nevada Supreme Court relied upon authority from the United States Supreme Court in Marek v. Chesny, 473 U.S. 1, 105 S. Ct. 3012, 87 L.Ed. 2d 1 (1985), wherein the Supreme Court had held that if an offer of judgment recites that costs are included or
specified in a particular amount, and the plaintiff accepts the offer of
judgment, then the judgment will necessarily include the costs.  Only
where the offer of judgment does not state that costs are included or indicate
the specific amount of costs will the court determine the costs. 

 

The Nevada Court agreed with the U.S. Supreme Court that a defendant would be reluctant to make an offer of judgment under Rule 68 if he were not allowed to make an offer that would
represent his total liability and the specific terms included if later accepted.  Likewise, carried to other scenarios, a defendant would be reluctant to make an offer of judgment contingent on a dismissal of the other defendants if the plaintiff could simply later move to add new defendants or retain all of the original defendants, in spite of the clear language to the contrary
contained in the offer of judgment.  The policy of Rule 68 is to encourage
settlements, particularly after an acceptance, and such judgments should not be
lightly set aside by the trial courts. 

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah.  Our firm’s practice includes a strong emphasis on construction law, contracts and litigation in the jurisdictions where we are licensed.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services.  Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation.  Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

gma@albrightstoddard.com

 

NRCP 68 and Nevada Offers of Judgment

 

In Fleischer v. August, 103 Nev. 242, 737 P.2d 518 (1987), the Nevada Supreme Court held that an offeree was not entitled to seek additional costs after accepting an offer of judgment
which expressly stated that it included costs.  The offer was for “fifty
thousand dollars ($50,000), just as in the case at bar, plus costs. 
Despite the offeror’s counsel stating that the offer of judgment was for a flat
sum, the offeree filed and served a notice of acceptance of the offer and a
memorandum of costs and a proposed judgment which included costs the amount of
$4,958.24 on top of the $50,000. 

 

The district court in Nevada entered the judgment submitted and the appeal ensued.  The offeree contended that the offer had to be for $50,000 plus the costs.  The
offeror argued that the specific wording of the Offer of Judgment was clear and
unambiguous and was even clarified later in a phone conversation.  The
court agreed with the offeror. 

 

The Nevada Supreme Court relied upon authority from the United States Supreme Court in Marek v. Chesny, 473 U.S. 1, 105 S. Ct. 3012, 87 L.Ed. 2d 1 (1985), wherein the Supreme Court had held that if an offer of judgment recites that costs are included or
specified in a particular amount, and the plaintiff accepts the offer of
judgment, then the judgment will necessarily include the costs.  Only
where the offer of judgment does not state that costs are included or indicate
the specific amount of costs will the court determine the costs. 

 

The Nevada Court agreed with the U.S. Supreme Court that a defendant would be reluctant to make an offer of judgment under Rule 68 if he were not allowed to make an offer that would
represent his total liability and the specific terms included if later accepted.  Likewise, carried to other scenarios, a defendant would be reluctant to make an offer of judgment contingent on a dismissal of the other defendants if the plaintiff could simply later move to add new defendants or retain all of the original defendants, in spite of the clear language to the contrary
contained in the offer of judgment.  The policy of Rule 68 is to encourage
settlements, particularly after an acceptance, and such judgments should not be
lightly set aside by the trial courts. 

 

Sample Letter to HOA regarding Landscape Dispute in Clark County, Nevada

 

To Whom It May Concern,

 

Please be advised that this firm has been retained by the
property owners of the above referenced home, Robert and Eileen , to
respond to your concerns that a 15-gallon plant has not yet been planted in
front of the HVAC unit in the side yard of said home.  This letter will
constitute a supplement to Mr. J's letter submitted to the Review Committee
on November 3, 2014.

 

As you know, Southern Nevada is one of the driest deserts in
the world and water is an issue of utmost concern to the local governmental
entities.  As a result, Henderson, Nevada, has adopted codes and
regulations, in conjunction with other local municipalities, to ensure an
adequate water supply for the community.  The lengthy drought in the South
West has resulted in the water level of Lake Mead, the primary source of local
water, to continue to drop, raising concerns over future water
availability.  The Southern Nevada Water Authority (SNWA), and local
municipalities, have adopted Drought Plans to reach conservation goals and
adopted other drought responsive measures. 

 

Water use restrictions were originally implemented in 2003
to help conserve water and protect the future of our water resources. However,
the drought has only grown worse over the past decade.  Consequently, most
governmental jurisdictions in the Las Vegas Valley, including Henderson, have
adopted laws that prevent a homeowners association (HOA) from restricting the
installation of water-saving landscape, often known as xeriscape. The SNWA web
site points out that in some cases, the HOA board may not even be aware of the
potential conflict between their own covenants (CC&Rs) and the water
restriction laws adopted by the local municipalities.

 

For example, Henderson Code Section 14.14.050 prohibits HOAs
from “imposing private covenants, conditions, restrictions, deed clauses or
other agreements between the parties which require the installation of turf or
prevent the utilization of water efficient landscaping, including but not
limited to xeriscape...”
(emphasis supplied).

 

The Sun City Anthem Design Guidelines, at section AA,
require swimming pool and spa equipment to be located at the side of the house
near the utilities and A/C equipment.  The Guidelines further provide that
the equipment should be screened from the street by an “L wall, a perimeter
wall or a retaining wall,” and further allow the wall to be constructed of
concrete block.  My client, assuming that since pool pump equipment should
be near the A/C and screened by a small L wall or perimeter wall, built such a
beautiful wall (out of concrete block) to avoid the necessity of wasting more
water, particularly since the three prior bushes planted in that location have
all died.  

 

The small screening wall (see photo of the subject screening
wall attached hereto) is acceptable to the neighbors and does a much better job
of screening the A/C equipment than a small bush.  More importantly, it
does so without the addition of hoses, pipes and sprinklers in the area which
would waste water unnecessarily, particularly when compounded by some 7,800
homes in the Anthem community all adding bushes and water pipes to screen the
A/C unit in side yards.  Since screening walls are acceptable on side
yards for hiding pool equipment, they should be similarly acceptable for HVAC
equipment. 

 

More importantly, our consultation with local water
conservation agencies leads us to the conclusion that the CC&R in question
is illegal under the Henderson Code since it attempts to compel and impose
landscape requirements on the homeowners which prevents the utilization of
water efficient landscaping.  Here a small block wall to screen equipment
in the side yard is not only beautiful, but avoids the necessity of adding new
sprinklers to waste limited water resources.

 

I do note that section AA allows the perimeter block walls
to be painted “to match the color of the house.”  If you would prefer that
we paint the small screening wall to match the color of the house, then please
so advice and we will purchase the paint and perform the work, while at the
same time conserving the precious water resources of our community and honoring
Henderson’s preference for water conservation in residential landscaping.

 

Please do not hesitate to call should you wish to discuss
this matter in greater detail.

 

Sincerely,

 

Mark Albright 

 

gma@albrightstoddard.com

 

             

 




 
 
 
 
 
 
 
 
 
 
 
 




Sample Nevada Notice of Removal Form

 

G.
MARK ALBRIGHT ESQUIRE

Nevada
Bar No. 001394

ALBRIGHT
STODDARD WARNICK AND PALMER, P.C.

801 South Rancho Road,
Suite D-4

Las Vegas,
Nevada89106

702-384-7111

gma@albrightstoddard.com

Attorneys
for Defendants Sheila Greenspan and

Sheila
Greenspan Enterprises, Inc. d/b/a

Capital
Resources International

 

 

 

UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA

 

YUMI
  SAITO, an individual,

 

                        Plaintiff,

 

vs.

 

YASUE
  FRANKLIN, an individual; RONALD FRANKLIN, an individual; SHEILA GREENSPAN,
  individually and d/b/a CAPITAL RESOURCES INTERNATIONAL; SHEILA GREENSPAN
  ENTERPRISES, INC., a Florida Corporation d/b/a CAPITAL RESOURCES
  INTERNATIONAL; DOES I through X,

 

                        Defendants.

     
  Case No.:  

     

 

 

 

NOTICE OF REMOVAL

 

 

Pursuant
to 28 U.S.C. § 1332 (Diversity of citizenship jurisdiction) and § 1441 (a)
(Removal based on federal court original jurisdiction), the following
Defendants, Sheila Greenspan, individually and d/b/a Capital Resources
International and Sheila Greenspan Enterprises, Inc., a Florida Corporation
d/b/a Capital Resources International (hereinafter collectively referred to as
“ Defendants”), who have been served with a copy of the Summons and Complaint
in this matter on August 16, 2004, file and serve this Notice of Removal of
this action from the EightH Judicial District in and for the County of Clark,
State of Nevada, to the United States District Court for the District of
Nevada.

 

  1. I.                  
    The United States District Court,
    Pursuant to Diversity Jurisdiction, Has Original Jurisdiction in This Matter

 

Defendants
request this matter to be removed from the EightH Judicial District for the County of Clark,
State of Nevada,
on the grounds that complete diversity of citizenship exist between the
Plaintiff, Yumi Saito (hereinafter referred to as “Plaintiff”) and each and
every Defendant.  Jurisdiction in this
Court is proper pursuant to 28. U.S.C. § 1332(a), which states:

The district courts shall have original jurisdiction
of all civil actions where the matter in controversy exceeds the sum or value
of $75,000, exclusive of interest and costs, and is between

(1)              
citizens of different States;

(2)              
citizens of a State and citizens or
subjects of a foreign state;

(3)              
citizens of different States and in
which citizens or subjects of a foreign state are additional parties; and

(4)              
a foreign state, defined in section
1603(a) of this title as plaintiff and citizens of a State or of different
States.

 

28. U.S.C. § 1332(a). 

       Here, Defendant request for removal in this case is proper
pursuant to subsection (2), “citizens of a State and citizens or subjects of a
foreign state….”  Id. 
According to Plaintiff’s Complaint, Plaintiff is a citizen and resident
of Nagoya, Japan.  Defendants are informed and believe that
Defendants Yasue Franklin and Ronald Franklin are citizens of the State of Nevada, residing at 2720 Chokecherry Avenue, Henderson, Nevada.  Defendant Sheila Greenspan is a citizen of
the State of Florida,
residing at 3320 Rosinka Court,
Naples, Florida.  Finally, Defendant Sheila Greenspan
Enterprises, Inc., is a Florida
corporation with its principal place of business at 4888 Davis Boulevard, #172, Naples,
Florida; thereby, establishing
complete diversity in and between each and all of the named defendants and
Plaintiff.

Additionally, Plaintiff’s
Complaint alleges that Plaintiff is due a sum in excess of $330,000.00 pursuant
to a promissory note. The said promissory note was allegedly entered into
between Yasue and Ronald Franklin and the Plaintiff.  The amount alleged to be owed on the
promissory note is well beyond the statutory requirement of $75,000.00 prescribed
by 28 U.S.C. § 1332(a).  Thereby,
establishing original jurisdiction with this Court, and making this case
removable to the United States District Court.

  1. II.               
    Removal of This Action is Proper on
    the Grounds that Plaintiff Has Prayed For Relief Under the Federal Racketeer
    Influenced and Corrupt Organizations Act 

 

Plaintiff’s Ninth Claim
for Relief is grounded on the civil right to recovery provisions contained in
the federal Racketeer Influenced and Corrupt Organizations Act (hereinafter
referred to as “RICO”).  18. U.S.C.  § 1964(c).[1]  Although RICO provides for a civil right of
action to recover for violation of RICO and states that such a plaintiff, “may
sue therefor in any appropriate United
  States district court….” Id

Complimenting such
language, the Ninth Circuit has held that, “state and federal courts have
concurrent jurisdiction of RICO claims….” 
Lou v. Belzberg, 834 F.2d 730, 732 (9th Cir.
1987).  In Lou v. Belzberg the
court was attempting to navigate around the doctrine of derivative jurisdiction,
which effectively acted as a bar to the federal district court’s having subject
matter jurisdiction over RICO actions that were removed from state courts.  Id.
at 734.   This result was contrary to the
language in RICO, allowing Plaintiff’s to commence a civil right of action from
a violation of RICO in the federal district courts.

Despite the Ninth
Circuits holding in Lou v. Belzberg, removal of this case is still
proper, notwithstanding diversity jurisdiction, because of the requisite
interpretation of federal law that this matter requires.  Moreover, derivative jurisdiction is not an
issue in this case. This case involves allegations of fraud and allegations
that Defendants’ conduct violated provisions of RICO.

Additionally, RICO
permits a successful plaintiff to recover three times the damages.  The gravidity of this provision should afford
a defendant, alleged to have violated the criminal provisions of RICO,
specifically, those contained in 18 U.S.C. § 1962, the most suitable venue in
which to present the merits of the defendant’s defense.   In this case, the most suitable venue for
the Defendants to present the merits of their defense to the serious
allegations of RICO violations is in the United States District Court, for the
District of Nevada.

III.            
Defendants’ Request for Removal in This Matter is
Timely Pursuant to 28 U.S.C. § 1446(b)

 

On August 3, 2004,
Plaintiff filed a Complaint in the District Court of Nevada, Clark County.  A true and correct copy of Plaintiffs’
Complaint, captioned Yumi Saito, an individual v. Yasue Franklin, an
individual; Ronald Franklin, an individual; Sheila Greenspan, individually and
d/b/a Capital Resources International; Sheila Greenspan Enterprises, Inc. d/b/a
Capital Resources International,
case number A489768, is attached hereto as
Exhibit 1.

Plaintiff first served
the Complaint on Defendants Yasue Franklin and Ronald Franklin on August 6,
2004.  Defendants Sheila Greenspan and
Sheila Greenspan Enterprises, Inc. were subsequently served on August 16, 2004.  True and correct copies of the Affidavits of
Service on Defendants Yasue Franklin and Ronald Franklin are attached hereto as
Exhibit 2.  Defendants, pursuant to 28
U.S.C. § 1446(b), are filing this Notice of Removal within thirty days of
service of Plaintiff’s Complaint, thereby making removal of this action timely
according to 28 U.S.C. § 1446(b). 

Additionally, the only
documents filed in this matter are the Complaint and Affidavit’s of Service on
Defendants Yasue Franklin and Ronald Franklin.

Furthermore, Defendants
are filing with the Court within the thirty day period the attached written
consents to removal from the two non-moving Defendants, Yasue Franklin and
Ronald Franklin, attached hereto as Exhibit 3. 
Therefore, removal of this action is timely and complete pursuant to the
Ninth Circuits holding in Hewitt v. City of Stanton, 798 F.2d 1230, 1232
(9th Cir. 1986)(holding for removal to be proper, all of the
defendants, except nominal ones, are to join in the removal petition).

IV.            
Conclusion

Defendants respectfully request this matter be
removed from the Eighth Judicial District Court in and for the County of Clark,
State of Nevada to United States District Court, for the District of Nevada
pursuant to diversity of citizenship of the parties and on the grounds that
this case involves the interpretation of federal law.  The Notice of Removal in this matter has been
timely filed, according to 28 U.S.C. § 1446(b) and with the consent of all
non-moving Defendants.  Therefore,
removal of this action is proper and this action should proceed before this
Court.

/ / /

/ / /

/ / /

/ / /

/ / /

ALBRIGHT,
  STODDARD, WARNICK & PALMER, P.C.

 

 

 

___________________________________

G. MARK ALBRIGHT ESQ.

Nevada Bar No. 001394

801 South Rancho Drive, Suite D-4

Las Vegas, Nevada 89106

702-384-7111

Attorneys for Defendants Sheila Greenspan and
  Sheila Greenspan Enterprises, Inc. d/b/a Capital Resources International

 

 

 

 

 

 

 

 

 



[1]
“Any
person injured in his business or property by reason of a violation of section
1962 of this chapter may sue therefor in any appropriate United States District
Court and shall recover threefold the damages he sustains and the cost of the
suit, including a reasonable attorney’s fee, except that no person may rely
upon any conduct that would have been actionable as fraud in the purchase or
sale of securities to establish a violation of section 1962.”  18 U.S.C. § 1964(c).

Recovering Reasonable Attorney's Fees after a Defense Verdict in Nevada

 

The prevailing defendants in Smith V. Crown Fin. Svcs of America, 890 P2d 767 (Nev. 1995) argued in the trial court that they should be awarded attorneys' fees because a defense verdict has a value of $20,000 or less. The defendants then asked for an award of attorney’s fees based upon NRS § 18.010(2)(a). 

This statute allows for  "attorneys fees to a prevailing party: (a) when the prevailing party has not recovered more than $20,000."  The general rule is Nevada is that attorney's fees are not recoverable by the successful party except pursuant to statute or where the written agreement entitles the prevailing party to an award of reasonable attorney's fees.

However, the Nevada Supreme Court held that a prevailing defendant may not use this statute as a basis for recovery of attorney’s fees in Nevada. In Smith v. Crown Fin. Svcs. Of America, 111 Nev. 277, 281, 890 P.2d 769, 771 (1995),  the Nevada Supreme Court
said:

"Under the present formulation of the statute, eliminating the requirement of a
money judgment would afford some prevailing plaintiffs (those recovering no
more than $20,000) and all prevailing defendants the opportunity to recover
attorney fees. This over-inclusive result could deeply offend the policy
underlying the American Rule which seeks to provide less affluent people with
access to the courts. For example, a plaintiff in a personal injury or products
liability case would not only be required to pit his meager resources against
those of a large insurance company or manufacturer, he would also risk the
potentially devastating burden of paying for this marshalling of superior
resources should he lose.

By retaining the requirement of a money judgment, this court preserves the
right of some plaintiffs (and counterclaimants) to recover attorney fees while
subjecting defendants to the common law rule. Although this under-inclusive
rule gives plaintiffs an advantage, it does so only in cases involving $20,000
or less. This rule is faithful to the language of NRS 18.010(2)(a), it provides
a significant portion of the intended class of beneficiaries with the intended
benefit of being able to recover attorney fees, and it minimizes any harmful
impact upon the policies underlying the American Rule."

Thus, in cases involving no contractual attorneys' fees clause,  the only other way for a defendant to obtain an award of attorney’s fees is by making an Offer of Judgment and then obtaining a more favorable verdict.

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah.  Our firm’s practice includes a strong emphasis on construction law, contracts and litigation in the jurisdictions where we are licensed.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services.  Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation.  Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

 

Implied Indemnity Claims in Nevada

 

Does an innocent defendant in a lawsuit have the right to try to compel its (wrongdoing)
co-defendant to provide it with a defense (or pay defense costs) and indemnity
prior to trial in the case. In other words, can a summary judgment be utilized to force an early defense or indemnity in the abscenceof an agreement? This does not appear to be a viable path procedurally in the abscence of a written indemnity and/or defense agreement. 

Perhaps sone of the best theories for receiving any monies from a co-defendant include
claims for apportionment, contribution and equitable indemnity.  Assuming there was no contractual provision in a contract between the two defendants requiring that one to provide
the other with a defense or indemnity, a defendant must rely on an equitable indemnity
theory (as opposed to an express, contractual indemnity provision, which would
be more ideal, if one had existed). 

An equitable indemnity theory is a judicially created
doctrine (not based on an express contractual provision the parties have agreed
upon), which is an equitable doctrine allowing a party to seek indemnity from
another party that actually, primarily caused the injured party’s damages. 


The theory is that an innocent defendant who is in privity with the plaintiff
should be able to seek redress for damages it is required
to pay because of the actions of the wrongdoing co-defendant.
However, in order to invoke this equitable theory, the claimant first
must plead and prove that: 

(1)    It has discharged a legal obligation owed to a third party;

 

(2)    The party from whom it seeks liability also was liable to
the third party; and

 

(3)    As between the claimant and the party from whom it seeks indemnity, the obligation ought to be discharged by the latter.

 

See,  Rodriguez v. Primadonna Co. LLC, 125 Nev. 578, 590 (2009).

 

Hence, it is a fundamental requirement that the claimant must
first discharge a legal obligation to the plaintiff before it can claim a right to
equitable indemnity from its co-defendant.  That typically will not
happen until a judgment has been entered in the case and a finding of liability
has been made against the defendant and discharged by it. 

At that point, the defendant may be able to make a claim to be
indemnified for damages paid out, as well as potentially some or all of its legal fees
and costs, but those matters are not guaranteed.   For
example, if a jury finds that the claimant is not liable to the plaintiff for a judgment, then it will never discharge a legal obligation, and, as a
result, would never be in a position to seek indemnity, including for its legal
fees and costs, from the co-defendant.  

The bottom line is that the applicable case law appears to
require a defendant/claimant to continue to defend the case through trial and then
litigate its indemnity, contribution and apportionment theories later on, after
a judgment has been issued.  

Further, the claimant should always make a demand early on for a defense
and indemnity against the co-defendant or third party defendant, in order to better preserve the right to subsequently argue that it is entitled to be indemnified for those fees and costs incurred after the demand was tendered to the co-defendant. 

 

About the Authors: The law firm of Albright, Stoddard, Warnick & Albright is an A-V Rated Nevada-based full-service law firm having attorneys licensed in Nevada, California and Utah.  Our firm’s practice includes a strong emphasis on construction law, contracts and litigation in the jurisdictions where we are licensed.

Note: This article, and any other information you obtain at this website, is not offered as legal advice, nor should it be relied upon as such, nor is it a solicitation for legal services.  Only a licensed attorney can advise you with respect to your specific legal needs. We welcome your contacting our firm to discuss such representation.  Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.

 

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