Nev. Yellow Cab Corp. v. State ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
NEVADA YELLOW CAB No. 83014
CORPORATION, A NEVADA
CORPORTION, D/B/A YELLOW CAB;
YELLOW CAB CO. OF NEVADA, INC., 't;. •
A NEVADA CORPORATION, D/B/A
YELLOW CAB; NEVADA CHECKER
CAB CORPORATION, A NEVADA DEC 0 1 2022
CORPORATION, D/B/A CHECKER
CAB; NEVADA STAR CAB
CORPORATION, A NEVADA
CORPORATION, D/B/A STAR CAB,
Appellants,
vs.
THE STATE OF NEVADA,
Res • ondent.
ORDER OF AFFIRMANCE
This is an appeal from a district court order granting a motion
to dismiss an inverse condemnation matter. Eighth Judicial District Court,
Clark County; Nancy L. Allf, Judge.
In 2015, the Legislature enacted NRS Chapter 706A, which
authorized Transportation Network Companies (TNCs), such as Uber and
Lyft, to operate in Nevada. See 2015 Nev. Stat., ch. 279, §§ 15-46, at 1401-
10. The legislation also permitted TNCs to operate without obtaining
Certificates of Public Convenience and Necessity (CPCNs) or Medallions
that, under NRS Chapter 706, taxicab companies must possess in order to
operate) Compare NRS 706.386 (providing that it is unlawful for a taxicab
1CPCNs and Medallions are akin to licenses that are required for
operating a taxicab business. See NRS 706.386 (providing that it is
unlawful for a taxicab company to operate in Nevada without a CPCN); NRS
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company to operate in Nevada without a CPCN), NRS 706.8827 (same with
respect to taxicab companies in Clark County), and NAC 706.543(8)
(prohibiting a Clark County taxicab driver from operating without a
Medallion), with NRS 706A.075(2)(a) (exempting TNCs from a large portion
of NRS Chapter 706's requirements).
In 2020, the appellant taxicab companies filed the underlying
inverse condemnation action against the State of Nevada. Appellants'
complaint alleged generally that, under Nevada law, they had a property
interest in their licenses. Appellants' complaint further alleged that their
property rights included the right to exclude others—including the
unlicensed TNCs—from operating a competing business in their designated
territories. Appellants alleged that, by virtue of the Legislature allowing
TNCs to operate in the same territories where appellants operate,
appellants' licenses have decreased in value and that this decrease in value
constitutes a "taking" of property by the State for which appellants are
entitled to just compensation. See generally Nev. Const. art. 1, § 8(3)
("Private property shall not be taken for public use without just
compensation having first been made . . . ."); Fritz v. Washoe Cty., 132 Nev.
580, 584, 376 P.3d 794, 796 (2016) ("[I]nverse condemnation requires a
party to demonstrate the following: (1) a taking (2) of real or personal
interest in private property (3) for public use (4) without just compensation
being paid (5) that is proximately caused by a governmental entity (6) that
has not instituted formal proceedings.").
706.88183(2) (defining "medallion" as the "authority to operate a taxicab
within the jurisdiction of the Taxicab Authority [i.e., Clark County] which
is issued by the Taxicab Authority"). Hereafter, this disposition refers to
them collectively as "licenses."
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The State moved to dismiss appellants' complaint under NRCP
12(b)(5), arguing that Nevada law does not afford appellants a property
right to operate their businesses free from competition, and even if Nevada
law did afford such a right, the diminution in value of appellants' licenses
would not constitute a compensable "taking." The State alternatively
argued that appellants' claims were barred by NRS 11.190(3)(c)'s three-year
statute of limitations, which applies to lain action for taking, detaining or
injuring personal property." The district court agreed with all the State's
arguments and granted its motion.
Appellants contend that the district court erroneously applied
NRS 11.190(3)(c) in finding that their claims were time-barred and that the
district court should have instead found that the claims were timely under
NRS 40.090's 15-year limitations period. We disagree. See ,IPMorgan
Chase Bank, N.A. v. SP'R Invs. Pool 1, LLC, 136 Nev. 596, 598, 475 P.3d 52,
55 (2020) ("When the facts are uncontroverted. .., the application of a
statute of limitations to bar a claim is a question of law that this court
reviews de novo."). 2 Of note, appellants' reliance on White Pine Lumber Co.
v. City of Reno, 106 Nev. 778, 801 P.2d 1370 (1990), is misplaced. There, we
addressed whether a four-year catchall limitations period or NRS 40.090's
15-year limitations period governing adverse possession should apply to an
inverse condemnation action relating to real property. Id. at 779-80, 801
2Appellants have not disputed that the accrual date for their claims
were the various effective dates for the enactment of NRS Chapter 706A, all
of which occurred in 2015. See 2015 Nev. Stat., ch. 279, § 59, at 1413. We
therefore accept for purposes of our analysis that the claims asserted in
appellants' 2020 complaint accrued in 2015. Cf. Senjab v. Alhulaibi, 137
Nev., Adv. Op. 64, 497 P.3d 618, 619 (2021) ("We will not supply an
argument on a party's behalf but review only the issues the parties
present.").
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P.2d at 1371-72. After canvassing case law from other jurisdictions and
concluding that a majority of those cases applied an adverse-possession-
based statute of limitations because "the landowner's right of recovery
grows out of his title to the land, and thus the landowner should have a
right to bring the [inverse condemnation] action until he has lost title to the
land by virtue of adverse possession," we held that a 15-year limitations
period applied to the inverse condemnation action for real property. Id. at
780, 801 P.2d at 1371-72.
Here, however, appellants are alleging a taking of their
personal property. Consistent with White Pine Lumber's rationale,
appellants' "right of recovery" in this case "grows out of' the State having
allegedly "taken" the value of their licenses. Id. at 780, 801 P.2d at 1371.
This claim falls squarely within NRS 11.190(3)(c), which, again, governs
"[a]n action for taking, detaining or injuring personal property." (Emphasis
added.) As the district court correctly held, appellants' claims were time-
barred by NRS 11.190(3)(c) because those claims alleged a taking of their
personal property. Other courts confronted with the issue have reached the
same conclusion and recognized a real/personal property distinction with
respect to the statutes of limitation applicable to taking claims. See, e.g.,
Tucker v. City of Corpus Christi, 622 S.W.3d 404, 407-08 (Tex. App. 2020)
(applying a personal-property limitations period to a claim alleging a taking
of personal property); Shade v. Mo. Highway and Transp. Comm'n, 69
S.W.3d 503, 517-17 (Mo. Ct. App. 2001) (same); Garden Water Corp. v.
Fambrough, 53 Cal. Rptr. 862, 864 (Ct. App. 1966) (same); Shupe v. City of
Spokane, No. 34986-1-111, 2018 WL 3154396 (Wash. Ct. App. 2018)
(unpublished) (same); see also Vanek v. State, Bd. Of Fisheries, 193 P.3d
283, 288 n.18 (Alaska 2008) (rejecting the argument that a personal-
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property limitations period applies to the taking of real property). But see
Perry v. Grand River Darn Auth., 344 P.3d 1, 10-11 (Okla. Civ. App. 2013)
(reasoning it would be illogical to have different limitations periods when
the alleged "taking" simultaneously affects real and personal property).
The concur/dissent would vacate and remand for further
proceedings as to whether the appellants have asserted a claim for the
taking of real as opposed to personal property, to which the 15-year statute
of limitations would apply. We reject this argument for two reasons. First,
appellants' opening brief did not argue that their complaint alleged a real-
property takings claim to which NRS 40.090 would apply. Rather,
appellants' opening brief argued that White Pine Lurnber stands for an
across-the-board proposition that a 15-year limitations period applies to all
takings claims. We disagree with that argument, as White Pine Lurnber
and our subsequent decision in City of N. Las Vegas v. 5th & Centennial,
LLC, 130 Nev. 619, 625, 331 P.3d 896, 900 (2014), assurned that the "taking"
at issue involved real property. Appellants' relied-upon legislative history
is also based on that same assurnption. See Hearing on A.B. 579 Before the
Assembly Judiciary Comm., 71st Leg. (Nev., April 12, 2001) (statement by
Brian Hutchins, Chief Deputy Attorney General for the Transportation and
Public Safety Division, that the applicable statute of limitations for inverse
condemnation actions is 15 years, while discussing that issue in the context
of real property). Second, under the NRCP 12(b)(5) standard of review, see
Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670,
672 (2008) (recognizing that a complaint's factual allegations must be
accepted as true), appellants' complaint does not sufficiently allege that
they have a real property interest in their operational territories that has
been physically invaded by virtue of the Legislature allowing TNCs to
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operate in those territories. Namely, appellants' relied-upon statutes and
regulations do not confer upon appellants a real property interest in their
territories, which is comprised of public roadways, to exclude non-licensed
competition. Cf. O'Connor v. Superior Court, 153 Cal. Rptr. 306, 310 (Ct.
App. 1979) ("There is no vested or constitutional right to use a public street
for conducting private business."). Rather, any supposed right to exclude is
reserved to the State of Nevada (by virtue of the Nevada Department of
Transportation and the Taxicab Authority) through their enforcement
powers.3 Thus, to the extent that appellants' complaint attempts to allege
that they have a real property interest that has been taken, we conclude
that such allegations are legal conclusions that need not be accepted as true
for purposes of NRCP 12(b)(5). See McCarran Int'l Airport v. Sisolak, 122
Nev. 645, 658, 137 P.3d 1110, 1119 (2006) (observing that it is the court's
responsibility to determine if a property interest exists); see also Cholla
Ready Mix, Inc. v. Civish, 382 F.3d 969, 973 (9th Cir. 2004) ("[T]he court is
not required to accept legal conclusions cast in the form of factual
allegations . . . .").
Appellants' complaint alleges a taking of personal property, to
which the three-year statute of limitations in NRS 11.1.90(3)(c) applies. The
statute of limitations expired before appellants sued. Accordingly, we
3While the right to exclude is a well-established property right, see,
e.g., Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 435
(1982), we cannot conclude that appellants have a recognizable real
property interest that would be subject to just compensation under a
takings analysis since the Legislature did not provide appellants with a
statutory right to exclude TNCs from physically invading their territories,
nor a statutory right to exclude TNCs from utilizing assets and
infrastructure necessary to operate such services.
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ORDER the judgment of the district court AFFIRMED.4
Q.
Cadish
J.
GIBBONS, Sr. j., concurring in part and dissenting in part:
I agree with the majority that if the rights and interests of all
the property rights taken by the State of Nevada are personal property, this
action is time barred pursuant to NRS 11.190(3)(c). However, in their
verified complaint filed May 27, 2020, the appellants allege facts that real
and personal property were taken from them through inverse
condemnation. The appellants repeated these facts in oral arguments
before the Nevada Supreme Court and further argued that this is a disputed
genuine issue of material fact.
The district court dismissed the complaint pursuant to NRCP
12(b)(5) because it failed to state a claim upon which relief can be granted.
In Breliant v. Preferred Equities Corp., 109 Nev. 842, 858 P.2d 1258 (1993),
the Nevada Supreme Court concluded that the district court may not
consider matters outside the pleading being attacked. In Buzz Stew, MX
v. City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008), the
4 The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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Nevada Supreme Court concluded that fact issues which have to be resolved
by evidence preclude judgment of dismissal under NRCP 12(b)(5) because
the allegation in the complaint must be accepted as true. The statute of
limitation for an inverse condemnation real property "takings" action is
fifteen years pursuant to NRS 40.090. White Pine Lumber Co. v. City of
Reno, 106 Nev. 778 at 780, 801 P.2d 1370 (1990).
I would remand to the district court for further proceedings and
to make findings as to whether a genuine issue of material fact exists
regarding the claim of the appellants that real property has been taken from
them.
, Sr. J.
cc: Hon. Nancy L. Allf, District Judge
Law Offices of Kermitt L. Waters
Attorney General/Carson City
Attorney General/Las Vegas
Eighth District Court Clerk
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