Advanced Check v. State, Dept. of Business and Industry C/W 61538 ( 2014 )

 and interest. In accordance with that opinion, we affirm the district court's
order granting declaratory relief.
Additionally, the appellant, Advanced Check Cashing &
Payday Loan (ACC), argues that the doctrine of judicial estoppel prevents
the respondent, Nevada's Department of Business and Industry, Financial
Institutions Division (FID), from asserting its proffered interpretation of
NRS 604A.425 because it had previously enforced the statute such that the
25-percent cap only included principal. This argument lacks merit.
"Whether judicial estoppel applies is a question of law subject to de novo
review. NOLM, LLC v. Cnty. of Clark, 120 Nev. 736, 743, 100 P.3d 658,
663 (2004). Judicial estoppel requires, inter alia, that a party took
contrary positions "in judicial or quasi-judicial administrative
proceedings." Id. (internal quotation marks omitted). Although the FID
appears to have adopted its current interpretation a number of years after
the Legislature enacted NRS 604A.425, ACC's argument is undermined by
the lack of any actual judicial or quasi-judicial proceedings wherein the
FID asserted a contrary position. Accordingly, the doctrine of judicial
estoppel does not apply.
ACC also argues that the district court abused its discretion by
refusing to grant relief from the final judgment under NRCP 60(b). ACC
argues it was entitled to such relief because the FID failed to acknowledge
past efforts to change the Nevada Administrative Code and notify other
lenders of pending litigation about the proper interpretation of the 25-
percent cap. Again, we disagree.
This court will not upset a district court's decision on an NRCP
60(b) motion absent an abuse of discretion. Stoecklein v. Johnson Elec.,
Inc., 109 Nev. 268, 271, 849 P.2d 305, 307 (1993). NRCP 60(b)(3) provides
that a district court has the discretion to provide relief from a final
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judgment on the basis of "fraud . . . , misrepresentation or other
misconduct of an adverse party."
Federal court decisions interpreting the federal civil procedure
rules provide guidance on the application of the fraud provision of NRCP
60(b). See Nelson v. Heer, 121 Nev. 832, 834, 122 P.3d 1252, 1253 (2005)
(recognizing that federal cases are persuasive authority in interpreting the
Nevada Rules of Civil Procedure). "To prevail, the moving party must
prove by clear and convincing evidence that the verdict was obtained
through fraud, misrepresentation, or other misconduct and the conduct
complained of prevented the losing party from fully and fairly presenting
the defense." De Saracho v. Custom Food Mach., Inc., 206 F.3d 874, 880
(9th Cir. 2000); see also Fierle v. Perez, 125 Nev. 728, 733-34 n.3, 219 P.3d
906, 909-10 n.3 (2009) (concluding that a party failed to demonstrate fraud
pursuant to NRCP 60(b)(3) by clear and convincing evidence), overruled on
other grounds by Egan v. Chambers, 129 Nev. „ 299 P.3d 364, 365
(2013). Fraud must "not be discoverable by due diligence before or during
the proceeding." Pac. & Arctic Ry. & Navigation Co. v. United Transp.
Union, 952 F.2d 1144, 1148 (9th Cir. 1991).
Here, ACC argues that the district court was unable to make a
decision based on a complete record because of the FID's failure to mention
its three prior attempts to promulgate a regulation that included its
favored interpretation of NRS 604A.425. We reject this argument for two
reasons.
First, it is unclear how the FID's previous attempts to
promulgate the regulation affected the district court's statutory
interpretation of NRS 604A.425, as the proposed regulation has no bearing
on whether the statute is ambiguous or the Legislature's intent. See, e.g.,
Estate of Smith v. Mahoney's Silver Nugget, Inc., 127 Nev. , 265
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P.3d 688, 690 (2011) (setting forth the principles of statutory
interpretation). Thus, the FID's failure to mention these attempts,
whether intentional or not, does not appear to have "prevented the losing
party from fully and fairly presenting the defense." De Saracho, 206 F.3d
at 880.
Second, the proposed regulations were publicly available and
subject to a notice and comment period, thus, the alleged fraud was
"discoverable by due diligence." Pac. & Arctic Ry., 952 F.2d at 1148.
ACC also notes that the FID did not tell other affected
businesses about the pending litigation between ACC and the FID
regarding the proper interpretation of the 25-percent cap. ACC does not
argue that other lenders were necessary parties to the litigation under
NRCP 19(a), nor does it cite any authority that supports its argument that
the FID had a duty to provide notice of its litigation to other businesses.
Thus, the district court did not abuse its discretion in refusing to grant
ACC's NRCP 60(b) motion on the basis of fraud, misrepresentation, or
misconduct.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Gibbons
J. J.
Hardesty
0/
014.1 ranro_
, J.
P.Marrn.:7111Li-Jub
,
Cherry
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cc: Hon. James Todd Russell, District Judge
Mark J. Krueger
Holland & Hart LLP/Las Vegas
Attorney General/Las Vegas
Carson City Clerk
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