Category: Litigation

Contract Damages in Nevada

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The following abstract explains Nevada law on contract damages, and explains how our courts view, determine, and award damages.

EXPECTATION/COMPENSATORY DAMAGES

Expectation/Compensation Damages as the General Goal of Contract Damages.

The general goal of contract damages is to provide compensation for the injured party based on the injured party’s expectation interest.  3 D. Dobbs, Law of Remedies § 12.2(1), at 22 (2d ed. 1993); Restatement (Second) of Contracts § 347cmt. a (2008).  Although there are other remedies available for an injured party in a breach of contract situation, the general and traditional goals of awarding damages in a breach of contract case are aligned with the expectation/compensation remedy. Dobbs, § 12.2(1), at 22.

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Business Law, Franchise Law, J, Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator, Litigation

Elements for a Claim of Slander Per Se

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In Nevada, the elements for a claim of slander per se are: An alleged defamatory oral statement; That the plaintiff committed a crime, has contracted a loathsome disease, that a woman is unchaste, or an allegation must be one which would tend to injure the plaintiff or his trade, business, profession, or office; and Proximate…

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Business Law, J, Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator, Litigation

Contract Construction and Interpretation by Courts

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The following abstract explains contract construction rules and how they are interpreted by Nevada courts.

AMBIGUOUS CONTRACT

  • If contract is ambiguous, then it will be construed against drafter. Dickinson v. State, Dept. of Wildlife, 110 Nev. 934, 877 P.2d 1059 (1994);
  • Any ambiguity in insurance contract must be interpreted against drafting party and in favor of insured. Farmers Ins. Grp. v. Stonik, 110 Nev. 64, 867 P.2d 389 (1994);
  • Where two interpretations of contract are possible, court will prefer interpretation which gives meaning to both provisions rather than interpretation which renders one of the provisions meaningless. Quirrion v. Sherman, 109 Nev. 62, 846 P.2d 1051 (1993);
  • Court may look to circumstances surrounding execution of contract and subsequent acts or declarations of parties to interpret unclear contract provisions. Trans Western Leasing Corp. v. Corrao Constr. Co., Inc., 98 Nev. 445, 652 P.2d 1181 (1982);
  • In construing ambiguous contract, court should place itself as nearly as possible in situation of parties. Barringer v. Gunderson, 81 Nev. 288, 402 P.2d 470 (1965);
  • The rule that the construction given to a contract by parties should carry great weight applies only to ambiguous contracts and not to contracts which are clear, certain and definite in their terms. Woods v. Bromley, 69 Nev. 96, 241 P.2d 1103 (1952);
  • Where language used in contract is equivocal or ambiguous, subsequent acts or declarations of parties showing practical construction put upon words may be resorted to for purpose of ascertaining their intention. Woods v. Bromley, 69 Nev. 96, 241 P.2d 1103 (1952).

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Business Law, Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator, Litigation

Elements for the Remedy of Specific Performance

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In Nevada, the remedy of specific performance is available where: Valid contract with reasonably definite and certain terms exists; Remedy at law is inadequate; Plaintiff performed his obligations under the contract; and Court is willing to order specific performance by the non-performing party. Land America Lawyers Title v. Metro. Land Dev., 2006 WL 2385385 (D….

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Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator, Litigation

The Elements for the Claim of Breach of Contract

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BREACH OF CONTRACT

In Nevada, the elements for a claim of breach of contract are:

  1. Valid contract (offer, acceptance, consideration) exists between plaintiff and defendant;
  2. Defendant breached the contract or failed to render performance when it became due;
  3. Defendant’s breach or failure of performance was unexcused;
  4. All conditions precedent to defendant’s duty to perform were fulfilled by plaintiff or were excused;
  5. Plaintiff was damaged by the breach;
  6. Causation and damages were a forseeable consequence of a particular breach (causation is an essential element of liability).

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Business Law, Franchise Law, Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator, Litigation

Contractual Ambiguity or Contra Proferentem, The Ambiguity Doctrine

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In Nevada, contractual ambiguity, also known as contra proferentem or the “ambiguity doctrine,” will determine how a court decides a contract dispute.  The doctrine does not apply absent a material ambiguity in the agreement at issue, and where the intent of the parties is impossible to ascertain by resort to the four corners of the document, plus all available extrinsic evidence, including the subsequent conduct of the parties.  Moreover, the doctrine is one of last resort;  it does not apply in cases involving sophisticated parties.

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Business Law, Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator, Litigation

Elements for a Claim of Intentional Interference with Contractual Relations

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In Nevada, the elements for a claim of intentional interference with contractual relations are: A valid and existing contract between plaintiff and a third party; Defendant had knowledge of the valid contract or had reason to know of its existence; Defendant committed intentional acts intended or designed to disrupt the contractual relationship or to cause…

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Business Law, Employment Law, Franchise Law, Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator, Litigation

What Should You do if You Have Been Sued?

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What Should You do if You Have Been Sued?
What Should You do if You Have Been Sued?

“NOTICE!” YOU HAVE BEEN SUED.”

These are words none of us ever wants to see.  However, lawsuits are almost an inevitable cost of conducting business in today’s environment.  A recent statistic suggests that over 120,000 Nevada businesses were sued last year alone in Nevada Courts.  An old, but unfortunately true adage to keep in mind: “there are only two types of businesses … those that have been sued already and those that will be sued.”  While I am not sure the future is quite that bleak, all professionals should know what their options and responsibilities are once they have been served with a copy of a complaint.  More importantly, you should know what you can do to help avoid suits.

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Business Law, Employment Law, Franchise Law, Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator, Litigation

The Elements for a Claim of Battery

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In Nevada, the elements for a claim of civil battery are: Willful and unlawful use of force or violence upon the person of another (causing a harmful or offensive contact with another person); Defendant intended to cause harmful or offensive contact; Such contact did occur; and Causation and damages. Graham v. Connor, 490 U.S. 386,…

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Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator, Litigation

The Standard for the Appointment of a Receiver in Nevada

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In Nevada, the appointment of a receiver over a business may be appropriate if:

  1. The appointment of a receiver is governed by statute and is appropriate only under circumstances described in statute.  State ex rel. Nenzel v. Second Jud. Dist. Ct., 49 Nev. 145, 155, 241 P. 317 (1925); Shelton v. Second Jud. Dist. Ct., 49 Nev. 487, 494, 185 P.2d 320 (1947);
  2. Any stockholder may apply if the corporation is insolvent. NRS 78.347;
  3. Any holder of 1/10 of a corporation’s issued and outstanding stock may apply for the appointment of a receiver when a corporation has been mismanaged. NRS 78.650.  A showing of any one of the ten circumstances enumerated in the statue will authorize the appointment of a receiver upon application by a ten-percent shareholder. Transcontinental Oil Co. of Nev. v. Free, 80 Nev. 207, 210-11, 391 P.2d 317, 319 (1964);
  4. A holder of 1/10 of issued stock may apply for appointment of a receiver of a solvent corporation where the business is being conducted at a great loss, the operation is prejudicial to creditors or stockholders such that the business cannot be conducted with safety to the public. NRS 78.630;
  5. The Court must consider the entire circumstances of the case when considering the appointment of a receiver. Bowler v. Leonard, 70 Nev. 370, 383 (1954);
  6. A Receiver may be appointed when a corporate is in imminent danger of insolvency. NRS 32.010;
  7. A Receiver is a neutral party appointed by the court to preserve, protect, and administer the business’ assets for benefit the business. In all cases, directors or trustees who have been guilty of no negligence nor active breach of duty must be preferred over all others in making the appointment of a receiver. NRS 78.650.  Peri-Gil Corp. v. Sutton, 84 Nev. 406, 411 422 P.2d 35, 38 (1968).  Such directors have a right to be heard as to their qualifications. Shelton v. Second Jud. Dist. Ct., 64 Nev. 487, 492-93, 185 P.2d 320, 323 (1947); and
  8. Appointment of a receiver is appropriate when the business’ property at issue is at risk of waste, loss of income, or is insufficient to secure a debt. NRS 32.010; NRS 107.100;

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Business Law, Corporate Governance, Employment Law, Franchise Law, Intellectual Property, Jay Young, Top Las Vegas, Nevada Mediator and Arbitrator, Litigation