Archive for: October, 2019

There are few circumstances in which the law requires that a party must file a complaint under oath.  The requirement is called “verification.”  NRS 15.010 requires that where verification is required, a pleading shall contain “the affidavit of the party shall state that the same is true of the party’s own knowledge, except as to the matters which are therein stated on the party’s information and belief, and as to those matters that the party believes it to be true.”  The affidavit may be in substantially the following form and need not be subscribed before a notary public:

Under penalties of perjury, the undersigned declares that he or she is the ………………………….. (plaintiff, defendant) named in the foregoing ………………………….. (complaint, answer) and knows the contents thereof; that the pleading is true of his or her own knowledge, except as to those matters stated on information and belief, and that as to such matters he or she believes it to be true.

NRS 15.010(5).

The law requires a verified complaint in the following circumstances:

  1. A derivative action by a shareholder against a corporate entity.  NRCP 23.1
  2. A petition to perpetuate testimony prior to filing a suit.  NRCP 27(a)(1)
  3. A petition for an ex parte temporary restraining order.  NRCP 65(b)(1)
  4. Petition for eminent domain, or public taking.  NRS 37.060
  5. Complaint for adverse possession.  NRS 40.090
  6. Quiet Title.  NRS 40.090; 40.091
  7. Eviction.  NRS 40.370
  8. Petition to establish the termination of a life estate.  NRS 40.515
  9. Petition for the termination of the interest of a deceased person in real property.  NRS 40.525
  10. Compromise the claim of a minor.  NRS 41.200
  11. Petition to determine and establish facts relative to vital statistics.  NRS 41.220
  12. Petition for a name change.  NRS 41.270
  13. Emancipation of a minor.  NRS 41.295
  14. Complaint by shareholder against corporation or association to enforce secondary rights.  NRS 41.520
  15. Divorce.  NRS 125.020
  16. Expedited relief for unlawful removal or exclusion of tenant from premises.  NRS 118A.390

Litigator's Guide to Nevada Evidentiary ObjectionsA motion in limine (Latin: [ɪn ˈliːmɪˌne]; “at the start”, literally, “on the threshold”) is a motion filed for the purpose of making an evidentiary decision outside the presence of the jury and before trial begins.  There are generally two types of motions in limine in a civil setting.  The first is to procure a definitive ruling on the admissibility of certain evidence, often on the basis that the evidence is prejudicial, irrelevant, or otherwise inadmissible.  Born v. Eisenman, 114 Nev.  854, 962 P.2d 1227 (1998).  The second is a prophylactic Motion that seeks to prevent counsel for the other party from mentioning inadmissible evidence or limiting the use of the evidence.  NRS 47.080.

The use of a motion in limine is not specifically authorized by  NRCP, but it is authorized by EDCR 2.47 after counsel has made a good faith effort to “meet and confer” and resolve the matter prior to filing the motion.  Further, the Nevada Supreme Court approved the practice in State ex. Rel. Dept. of Highways v. Nevada Aggregates & Asphalt Co., 92 Nev. 370, 551 P.2d 1095 (1976).  Trial judges are authorized to rule on motions in limine pursuant to their inherent authority to manage trials. See Luce v. U.S., 469 U.S. 38, 41 n.4 (1984) (citing Fed. R. Evid. 103(c) (providing that trial should be conducted so as to “prevent inadmissible evidence from being suggested to the jury by any means”)) (as cited by  Demaree, Lindsay and Hostetler, Jennifer K.,  Making the Most of Motions In Limine, COMMUNIQUÉ (April 2014, Vol. 35, No. 4).

Consider filing a motion in limine to exclude certain testimony or witness, to exclude evidence, publicity, obtain approval of demonstrative exhibits, PowerPoint presentations, to declare a witness unavailable, and to determine which portions of testimony are to be read to the jury, etc.  

Top Las Vegag Arbitrator

The Federal Arbitration Act (“FAA”), which has been the law in the United States since 1925, preempts any state law that disfavors the ability of two parties to contractually bind themselves to arbitrate a dispute.  Since 2013, Nevada law has required that any contract containing an arbitration provision must include a “specific authorization for the provision which indicates that the person has affirmatively agreed to the provision”.  Not surprisingly, the Nevada Supreme Court recently held that the Nevada law is preempted by the FAA.  (For an overview of the FAA, see this post)

MMAWC (then doing business as the World Series of Fighting) and its affiliates (collectively “MMAWC”), together with the Zion Wood Obi Wan Trust and its affiliates (collectively “Zion Wood”), were involved in litigation that resolved by negotiated settlement agreement.  That settlement agreement incorporated and restated portions of two other agreements, including a requirement that any dispute between the parties be resolved by litigation.  Zion Wood alleged that MMAWC breached the settlement agreement and sued.  MMAWC, LLC v. Zion Wood Obiu Wan Trust, 135 Nev. Adv. Op. 38, __ P.3d __ (Sep. 5, 2019).

MMAWC filed a motion to dismiss the suit and to compel arbitration pursuant to the incorporated arbitration clause.  The Honorable Nancy L. Allf denied the motion on the basis that the arbitration clause failed to include the “specific authorization” required by NRS 597.995 and was therefore unenforceable.  MMAWC appealed.

In coming to its decision, the Nevada Supreme Court relied heavily on Doctor’s Associates, Inc. v. Casarotto, 517 U.S. 681, 683, 687, 116 S.Ct. 1652, 134 L.Ed.2d 902 (1996), which explained “that under the FAA. courts may not ‘invalidate arbitration agreements under state laws applicable only to arbitration provisions,’ as Congress has ‘precluded [s]tates from singling out arbitration provisions for suspect status’ and requires arbitration provisions to be placed on ‘the same footing as other contracts.’”  The Court concluded that NRS 597.995 similarly imposes a special requirement on arbitration clauses that is not applicable to other contracts, “it singles out arbitration provisions as suspect and violates the FAA.”  The Court therefore held the FAA preempts NRS 597.995.

For some history on this statute, see Is Your Arbitration Agreement Enforceable in Nevada? and Is Your Arbitration Agreement Void, or Enforceable in Nevada?

What is a Notice of Breach and Opportunity to Cure?

Many contracts contain a clause requiring a notice of default and opportunity to cure prior to filing suit or demanding arbitration.  For a contract with such a clause, before an action can be taken, the party claiming the other has breached an agreement must: 1) send a notice describing the way(s) in which the party is in default of the agreement; 2) provide an opportunity to cure the default; 3) wait the ascribed period of time for the defaulted party to cure; and 4) file suit or demanding arbitration only if the other party fails to cure its default.

“The common meaning of ‘cure’ is to remedy, restore, remove, or rectify … and as the term relates to defaults, ‘cure’ means to restore matters to the status quo ante.”[1] The object of a notice of breach and opportunity to ‘cure’ is to give a party another chance to perform substantially and a second chance to perform according to the contract.  The cure requires performance to the level of substantial performance under the contract.[2]

Fairness dictates that the opportunity to “cure” be more than illusory.  A party must be given time and a real opportunity to cure prior to termination.[3]  “The right of a breaching party to be given an opportunity to cure its alleged material breach is an ancient equitable principle intended to: (1) prevent forfeiture by termination; (2) allow the breaching party to mitigate damages, (3) avoid similar future deficiencies in performance, and (4) promote the informal settlement of disputes.”[4]  In fact, where a party is not given more than an illusory opportunity to cure, there is no breach.[5]

In a contract with a cure requirement, the opportunity to actually cure the default is essential to the contract.  Therefore, when one party prevents another from performing an essential task under an Agreement—like the cure—the other party is excused from performing.[6]  The opportunity to cure becomes illusory and unattainable, and the complaining party may not maintain an action for breach for its own failure to allow the other to perform.

[1] Matter of Clark, 738 F.2d 869, 871 (7th Cir. 1984).
[2] 8 Catherine M.A. McCauliff, Corbin on Contracts, § 36.7 at 349 (1999).
[3] See Restatement Second, Contracts § 241; II Farnsworth on Contracts §§ 8.17, 8.18 (2d ed 1998).
[4] 5 Bruner & O’Connor Construction Law § 18:15 Principle Of Cure And Its Implications Upon Materiality (June 2016).
[5] Burras v. Canal Const. and Design Co., 470 N.E.2d 1362, 1367 (Ind. Ct. App. 1st Dist. 1984) (because the subcontractor “was not given an opportunity to remedy any alleged defects, any incidence of defective performance did not constitute a breach of the construction contract”).
[6] Chamani v. Mackay, 124 Nev. 1457, 238 P.3d 800 (2008) (citing Cladianos v. Friedhoff, 69 Nev. 41, 45–46, 240 P.2d 208, 210 (1952)).