Archive for: June, 2016

In Nevada, rescission is a remedy which allows the harmed party, either through unilateral action, or through the institution of a suit in equity, to abrogate or cancel a contract totally, returning the parties to the positions they held prior to the execution of the contract.

  1. Existence of fraud, mutual mistake, false representations, impossibility of performance, or other ground for rescission or cancellation of a contract;
  2. Suit for rescission – equitable remedy totally abrogating a contract and placing the parties in the positions they occupied prior to executing the contract;
  3. Where a contract has been partially performed under equitable rescission, the party performing must elect to rescind or affirm the contract but cannot do both. Rescission requires immediate restitution, or return of whatever of value was received; and
  4. Where there has been a valid rescission of contract, there is no contract to enforce and therefore no possible cause of action for breach.

Pacific Maxon, Inc. v. Wilson, 96 Nev. 836, 619 P.2d 816; Scaffidi v. United Nissan, 425 F. Supp. 2d 1172 (D. Nev. 2005). Great Am. Ins. Co. v. Gen. Builders, Inc., 113 Nev. 346, 934 P/2d 257, 262 n.6 (1997)(“A priori, where there has been a valid rescission of the contract, there is no longer any contract and, therefore, no longer a cause of action for breach.”).  Rescission voids a contract.  Bergstrom v. DeVoe, 109 Nev.575, 577, 854 P.2d 860, 862 (1993).  Restitution is a form of rescission.  Reed v. Sixth Jud. Dist. Ct., 75 Nev. 338, 341, 341 P.2d 100, 101 (1959); Dan B. Dobbs, Law of Remedies, 552 (2d. Ed. 1993).  Rescission and damages are inconsistent; election of one is a bar to the other.  Mullinix v. Morse, 81 Nev. 451, 454, 406 P.2d 298, 300 (1965).

 

See elements for other claims at the Nevada Law Library

ARBITRATION OF ACTIONS IN DISTRICT COURTS AND JUSTICE COURTS

 

NRS 38.250  Nonbinding arbitration of certain civil actions filed in district court required; nonbinding arbitration of certain civil actions filed in justice court authorized; effect of certain agreements by parties to use other alternative methods of resolving disputes.

1.  Except as otherwise provided in NRS 38.310:

(a) All civil actions filed in district court for damages, if the cause of action arises in the State of Nevada and the amount in issue does not exceed $50,000 per plaintiff, exclusive of attorney’s fees, interest and court costs, must be submitted to nonbinding arbitration in accordance with the provisions of NRS 38.250 to 38.259, inclusive, unless the parties have agreed or are otherwise required to submit the action to an alternative method of resolving disputes established by the Supreme Court pursuant to NRS 38.258, including, without limitation, a settlement conference, mediation or a short trial.

(b) A civil action for damages filed in justice court may be submitted to binding arbitration or to an alternative method of resolving disputes, including, without limitation, a settlement conference or mediation, if the parties agree to the submission.

2.  An agreement entered into pursuant to this section must be:

(a) Entered into at the time of the dispute and not be a part of any previous agreement between the parties;

(b) In writing; and

(c) Entered into knowingly and voluntarily.

Ê An agreement entered into pursuant to this section that does not comply with the requirements set forth in this subsection is void.

3.  As used in this section, “short trial” means a trial that is conducted, with the consent of the parties to the action, in accordance with procedures designed to limit the length of the trial, including, without limitation, restrictions on the amount of discovery requested by each party, the use of a jury composed of not more than eight persons and a specified limit on the amount of time each party may use to present the party’s case.

(Added to NRS by 1991, 1343; A 1993, 556, 1024; 1995, 1419, 2537, 2538; 1999, 852, 1379; 2003, 851; 2005, 391)

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UNIFORM ARBITRATION ACT OF 2000

 

NRS 38.206  Short title.  NRS 38.206 to 38.248, inclusive, may be cited as the Uniform Arbitration Act of 2000.

(Added to NRS by 2001, 1274)

 

NRS 38.207  Definitions.  As used in NRS 38.206 to 38.248, inclusive, the words and terms defined in NRS 38.208 to 38.213, inclusive, have the meanings ascribed to them in those sections.

(Added to NRS by 2001, 1274)

 

NRS 38.208  “Arbitral organization” defined.  “Arbitral organization” means an association, agency, board, commission or other entity that is neutral and initiates, sponsors or administers an arbitral proceeding or is involved in the appointment of an arbitrator.

(Added to NRS by 2001, 1274)

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NEVADA REVISED STATUTES

CHAPTER 38 – MEDIATION AND ARBITRATION

 

UNIFORM ARBITRATION ACT OF 2000

 

NRS 38.206             Short title.

NRS 38.207             Definitions.

NRS 38.208             “Arbitral organization” defined.

NRS 38.209             “Arbitrator” defined.

NRS 38.211             “Court” defined.

NRS 38.212             “Knowledge” defined.

NRS 38.213             “Record” defined.

NRS 38.214             Notice.

NRS 38.216             Applicability.

NRS 38.217             Waiver of requirements or variance of effects of requirements; exceptions.

NRS 38.218             Application for judicial relief; service of notice of initial motion.

NRS 38.219             Validity of agreement to arbitrate.

NRS 38.221             Motion to compel or stay arbitration.

NRS 38.222             Provisional remedies.

NRS 38.223             Initiation of arbitration.

NRS 38.224             Consolidation of separate arbitration proceedings.

NRS 38.226             Appointment of arbitrator; service as neutral arbitrator.

NRS 38.227             Disclosure by arbitrator.

NRS 38.228             Action by majority.

NRS 38.229             Immunity of arbitrator; competency to testify; attorney’s fees and costs.

NRS 38.231             Arbitration process.

NRS 38.232             Representation by lawyer.

NRS 38.233             Witnesses; subpoenas; depositions; discovery.

NRS 38.234             Judicial enforcement of preaward ruling by arbitrator.

NRS 38.236             Award.

NRS 38.237             Change of award by arbitrator.

NRS 38.238             Remedies; fees and expenses of arbitration proceeding.

NRS 38.239             Confirmation of award.

NRS 38.241             Vacating award.

NRS 38.242             Modification or correction of award.

NRS 38.243             Judgment on award; attorney’s fees and litigation expenses.

NRS 38.244             Jurisdiction.

NRS 38.246             Venue.

NRS 38.247             Appeals.

NRS 38.248             Uniformity of application and construction. (more…)

EMPLOYMENT DISCRIMINATION AND WRONGFUL TERMINATION

In Nevada, the elements for a claim of retaliatory discharge (sometimes called employment discrimination, wrongful discharge, or tortious discharge) are:

  1. Employee engaged in protected activity while employed (such as filing a discrimination charge or opposing unlawful employer practices);
  2. Employee suffered an adverse employment action by the employer;
  3. The protected activity was a motivating factor in the adverse employment action;
  4. Causation and damages; and
  5. Punitive damages.

Burlington N. v. White, 126 S. Ct. 2405 (2006); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1464 (9th Cir. 1994); Allum v. Valley Bank of Nevada, 114 Nev. 1313, 970 P.2d 1062, 1066 (1998); D’Angelo v. Gardner, 107 Nev.704, 819 P.2d 206, 212 (1991); Hansen v. Harrah’s, 100 Nev. 60, 675 P.2d 394 (1984); 42 U.S.C. § 2000e-3(a).

 

See elements for other claims at the Nevada Law Library