Thursday, June 11, 2020 - Las Vegas - J. Gibbons, J. Stiglich, and J. Silver
Apco Constr., Inc. vs. Zitting Bros. Constr., Inc.
Docket Number: 75197
Las Vegas - 10:00 a.m. - Southern Nevada Panel
This is an appeal from summary judgment and an attorney fees and costs award, certified as final under NRCP 54(b), in a contract action regarding a construction project. Appellant APCO Construction, Inc. served as the general contractor on a mixed-used development project owned by Gemstone Development West, Inc., and entered into a subcontract agreement with subcontractor and respondent Zitting Brothers Construction, Inc. to work on the project. When Gemstone stopped paying APCO, APCO left the project, Camco Pacific Construction Company became general contractor, and Zitting allegedly continued to perform work on the project. The project ultimately failed, and APCO and other subcontractors went unpaid for portions of their work and filed mechanic’s liens. Zitting sued APCO and Gemstone under various claims, including breach of contract and NRS 108 foreclosure of mechanic’s lien, to collect on approximately $700,000 for work it allegedly completed prior to the project’s failure. APCO asserted various affirmative defenses to Zitting’s action, including that Zitting did not meet conditions precedent and that Gemstone never paid APCO for the owed portions as required under the pay-if-paid provision in the contract between APCO and Zitting. After this court affirmed that the project’s lender had the first lien priority over the sale proceeds of the property, Zitting moved for summary judgment on its claims against APCO. The district court granted summary judgment in favor of Zitting, concluding that the pay-if-paid provision was void and unenforceable, APCO’s other conditions precedent defenses were precluded for untimeliness, and that Zitting was entitled to a personal judgment against APCO under NRS 108.239(12). It subsequently denied APCO’s motion for reconsideration and granted Zitting attorney fees and costs.
ISSUES:
APCO appeals. ISSUES: Whether (1) the district court erred in granting summary judgment in favor of Zitting on its breach of contract and NRS 108 foreclosure of mechanic’s lien claims, including: (a) the district court erred in determining the pay-if-paid provision of the contract void and unenforceable; (b) the district court erred in granting Zitting’s motion in limine to preclude other conditions precedent aside from the pay-if-paid provision; (c) genuine issues of material facts remained regarding Zitting’s entitlement to the payment; (d) the district court erred in granting Zitting summary judgment on the foreclosure of mechanic’s lien claim when APCO did not own the property at issue; (2) the district court erred in denying APCO’s motion for reconsideration; and (3) the district court erred in granting Zitting attorney fees and costs.
Disclaimer:
This synopsis is intended to provide only general information about this case before the Nevada Supreme Court. It is not intended to be all-inclusive or reflect all positions of the parties. To access the documents that have been filed in this matter, type the docket number into the court’s case search page: http://caseinfo.nvsupremecourt.us/public/caseSearch.do
Cannon Cochran Mgmt. Servs., Inc. vs. Figueroa
Docket Number: 78926
Las Vegas - 10:30 a.m. - Southern Nevada Panel
This is an appeal from a district court order reversing an appeals officer’s decision in a workers’ compensation action. Police officer David Figueroa was injured in a car accident during his commute home from work. At the time of the accident, Figueroa had been released early from his shift, and was driving home on his personal motorcycle. Figueroa’s workers’ compensation claim was denied and his appeal of that claim was also denied. The appeals officer concluded that injuries occurring during an employee’s commute to or from work are generally not compensable. She also concluded Figueroa’s injuries did not meet any of the exceptions to the “going and coming rule.” Specifically, she concluded that he was not conferring a distinct benefit on his employer and the circumstances of his injury did not satisfy the law-enforcement exception. The district court reversed the appeals officer’s decision. Cannon Cochran and the Las Vegas Metropolitan Police Department appealed.
ISSUES:
ISSUES: Whether: (1) Figueroa’s injury arose out of and during the course of his employment, (2) Figueroa conferred a distinct benefit upon his employer, and (3) Figueroa satisfied the law-enforcement exception.
Disclaimer:
This synopsis is intended to provide only general information about this case before the Nevada Supreme Court. It is not intended to be all-inclusive or reflect all positions of the parties. To access the documents that have been filed in this matter, type the docket number into the court’s case search page: http://caseinfo.nvsupremecourt.us/public/caseSearch.do
Gallardo-Recendez vs. Ely
Docket Number: 78077
Las Vegas - 11:30 a.m. - Southern Nevada Panel
This is an appeal from a final judgment and post-judgment order denying a motion for a new trial in a tort action. Appellant Pedro Gallardo-Recendez was driving a pickup truck when he struck the back of Respondent James Ely’s sedan. Ely, who sustained severe injuries to his neck and back, sued Gallardo-Recendez for negligence and gross negligence. The case went to trial and the jury awarded Ely $205,000 for past injuries and $225,000 for future injuries. Gallardo-Recendez moved for a new trial, which the district court denied. Gallardo-Recendez appeals.
ISSUES:
ISSUES: Whether (1) the district court abused its discretion in permitting Dr. Lanzkowsky’s testimony based on other physician’s medical bills and concerning future undisclosed medical expenses, (2) the district court abused its discretion in permitting testimony concerning Gallardo-Recendez’s alleged DUI, and (3) any abuse of discretion materially affected Gallardo-Recendez’s substantial rights such to warrant a new trial.
Disclaimer:
This synopsis is intended to provide only general information about this case before the Nevada Supreme Court. It is not intended to be all-inclusive or reflect all positions of the parties. To access the documents that have been filed in this matter, type the docket number into the court’s case search page: http://caseinfo.nvsupremecourt.us/public/caseSearch.do
Glass vs. Select Portfolio Serv., Inc.
Docket Number: 78325
Las Vegas - 1:30 p.m. - Southern Nevada Panel
This is an appeal from a district court order granting summary judgment in a quiet title action. Appellant Kristal Glass received property from her husband in their divorce after he defaulted on the mortgage payments for the property. Respondent Service Portfolio Management (SPS) entered a Notice of Default and Intent to Sell. SPS recorded a Rescission of Election to Declare Default after Glass’s ex-husband declared bankruptcy. In 2012, SPS sought judicial foreclosure of the property. Glass argued SPS did not have standing to enforce the loan because it did not have the Adjustable Rate Note for the property. The Court of Appeals agreed concluding SPS did not have standing. Glass later filed the underlying quiet title action. SPS then found the Note, which it had previously lost, and asserted it could enforce the loan. Glass argued collateral estoppel precluded SPS from asserting standing to enforce the loan. Further, Glass argued that because more than 10 years had passed since the notice of default was recorded, accelerating the loan under NRS 106.240, the loan is presumed satisfied. The district court disagreed and granted summary judgment in favor of SPS.
ISSUES:
ISSUES: Whether: (1) the doctrine of issue preclusion precludes SPS from arguing it has standing to enforce the loan; and (2) the loan is presumed satisfied pursuant to NRS 106.240.
Disclaimer:
This synopsis is intended to provide only general information about this case before the Nevada Supreme Court. It is not intended to be all-inclusive or reflect all positions of the parties. To access the documents that have been filed in this matter, type the docket number into the court’s case search page: http://caseinfo.nvsupremecourt.us/public/caseSearch.do