JED Prop. v. Coastline RE Holdings NV Corp. , 2015 NV 11 ( 2015 )

131 Nev., Advance Opinion I I
IN THE SUPREME COURT OF THE STATE OF NEVADA
JED PROPERTY, LLC, A NEVADA No. 63092
LIMITED LIABILITY COMPANY,
Appellant,
vs.
COASTLINE RE HOLDINGS NV
CORP., A NEVADA CORPORATION,
Respondent.
JED PROPERTY, LLC, A NEVADA No. 63359
LIMITED LIABILITY COMPANY,
Appellant,
vs. FILED
COASTLINE RE HOLDINGS NV
CORP., A NEVADA CORPORATION, MAR 0 5 2015
Respondent.
Consolidated appeals from a district court order granting a
motion for summary judgment and a post-judgment award of attorney fees
and costs. Eighth Judicial District Court, Clark County; Mark R. Denton,
Judge.
Affirmed.
Marquiz Law Office and Craig A. Marquiz, Henderson; Bogatz Law Group
and Scott Bogatz and Charles M. Vlasic III, Las Vegas,
for Appellant.
Gordon Silver and Kenneth E. Hogan and Erika A. Pike Turner, Las
Vegas; Lewis Roca Rothgerber LLP and Joel D. Henriod and Daniel F.
PoIsenberg, Las Vegas,
for Respondent.
BEFORE PARRAGUIRRE, SAITTA and PICKERING, JJ.
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OPINION
By the Court, SAITTA, J.:
If a trustee's sale under NRS 107.080 "has been postponed by
oral proclamation three times, any new sale information must be provided
by notice as provided in NRS 107.080." NRS 107.082(2). At issue here is
whether NRS 107.082(2) requires another notice of the sale's time and
place, as provided in NRS 107.080, after a third oral postponement of a
trustee's sale or if the notice of sale requirement is not triggered unless,
after the third oral postponement has been given, the sale's time or place
subsequently changes.
We hold that NRS 107.082(2)'s notice of sale requirement is
not triggered unless, after the third oral postponement has been given, the
sale's date, time, or place is later changed. Therefore, the district court
did not err in granting summary judgment and in subsequently awarding
attorney fees and costs.
FACTUAL AND PROCEDURAL HISTORY
In an effort to foreclose on real property in Las Vegas that was
used to secure a debt by appellant JED Property, LLC, respondent
Coastline RE Holdings NV Corp. or its trustee recorded a notice of a
trustee's sale. The trustee's sale was orally postponed three times before
the property was sold, with the sale occurring on the date and at the place
set by the third oral postponement.
After Coastline initiated a civil action against JED, JED filed
counterclaims against Coastline, asserting a claim for, among other
things, wrongful foreclosure. In particular, JED contended that Coastline
violated NRS 107.082(2) when it orally postponed the sale three times
without effectuating a written notice of the sale's time and place as
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provided in NRS 107.080. Coastline then filed a motion for summary
judgment, arguing that JED premised its counterclaims on an erroneous
interpretation of NRS 107.082(2). The district court granted summary
judgment in favor of Coastline upon concluding that the three oral
postponements did not trigger NRS 107.082(2)'s notice requirement
because the sale occurred on the date set by the third oral postponement.
Subsequently, the district court granted Coastline an award of attorney
fees and costs.
JED now appeals the summary judgment order. JED also
appeals the award of attorney fees and costs to the extent that the award
must be reversed if JED prevails in this proceeding by compelling the
reversal of the summary judgment. In so doing, JED raises the following
issue: whether the district court erred in granting summary judgment in
favor of Coastline as to the counterclaims against it upon concluding that
the three oral postponements of the trustee's sale did not trigger NRS
107.082(2)'s notice requirement.
DISCUSSION
On appeal, JED argues that the district court's reading of NRS
107.082(2) deviated from the statute's plain meaning, which JED reads as
requiring a written notice of new sale information upon the third oral
postponement of the sale.
Coastline contends that NRS 107.082(2) unambiguously
permits three oral postponements of a sale and requires the notice of any
new sale information only for postponements that follow the third oral
postponement.
Standard of review
The parties' arguments concern summary judgment, the
interpretation of NRS 107.082(2), and the legal basis for the award of
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attorney fees and costs. Therefore, de novo review applies. Washoe Med.
Ctr. v. Second Judicial Dist. Court, 122 Nev. 1298, 1302, 148 P.3d 790, 792
(2006) (employing de novo review in ascertaining a statute's meaning);
Thomas v. City of N. Las Vegas, 122 Nev. 82, 90, 127 P.3d 1057, 1063
(2006) (providing that a denial of attorney fees is generally reviewed for
abuse of discretion but that de novo review applies when an attorney fees
matter concerns questions of law); Wood v. Safeway, Inc., 121 Nev. 724,
729, 121 P.3d 1026, 1029 (2005) (employing de novo review in evaluating a
summary judgment).
NRS 107.082(2)'s plain meaning
This court interprets an unambiguous statute based on its
plain meaning by reading it as a whole and "giv[ing] effect to
each. . . word[] and phrase[ ]." Davis v. Beling, 128 Nev. „ 278
P.3d 501, 508 (2012). We do not look to other sources, such as legislative
history, unless a statutory ambiguity requires us to look beyond the
statute's language to determine the legislative intent. State, Div. of Ins. v.
State Farm Mitt. Auto. Ins. Co., 116 Nev. 290, 294, 995 P.2d 482, 485
(2000).
NRS 107.082(2) states: "If such a sale has been postponed by
oral proclamation three times, any new sale information must be provided
by notice as provided in NRS 107.080." (Emphases added.) Ascertaining
NRS 107.082(2)'s meaning and its application to the facts of this appeal
thus primarily involves resolving the meaning of the phrases "has been"
and "new sale information" and the term "notice" in the statute.
The plain meaning of NRS 107.082(2) and its "new sale
information" and "notice" language is clear when reading that statute in
conjunction with the statute that it references: NRS 107.080. NRS
107.080 requires two notices: (1) a notice of the default and of the election
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to sell under NRS 107.080(2)(c) and NRS 107.080(3) and (2) a notice of the
trustee sale's time and place under NRS 107.080(4). 1 NRS 107.080(4)'s
notice of the trustee sale's date, time, and place encompasses, by its
nature, the new sale information referred to in NRS 107.082(2), as it
contains information about the sale that potential buyers would need in
order to participate. 2
The content of the notice of the sale's time and place as
provided in NRS 107.080(4) is primarily the same as the content that
would be conveyed in an oral postponement of the sale—that being the
sale's date, time, and place. See NRS 107.082(1) (providing that if a sale is
orally postponed it must be postponed "to a later date at the same time
and location"). Once a sale "has been" orally postponed for a third time,
the information about the postponed sale has already been communicated.
NRS 107.082(2). Therefore, as long as the information regarding the sale's
date, time, and place remains the same after the third oral postponement,
1 NRS 107.080(4) requires the notice of the sale's time and place to be
effectuated in a series of ways, specifically: (1) recording the notice;
(2) giving the notice to the parties who are statutorily required to receive
it; (3) posting the notice for 20 consecutive days; and (4) publishing the
notice "three times, once each week •for 3 consecutive weeks, in a
newspaper of general circulation."
2Although the language of NRS 107.080(4) only refers to "time and
place," "time" in this context necessarily includes both the date and time of
day. Otherwise, notice under NRS 107.080(4) would not have to include
the date that the sale is to occur. See City Plan Dev. v. State, Labor
Comm'r,, 121 Nev. 419, 435, 117 P.3d 182, 192 (2005) ("When interpreting
a statute, this court will. . . seek to avoid an interpretation that leads to
an absurd result.").
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there is no new sale information to provide that would require a new
notice under NRS 107.082(2).
But, if the sale's date, time, or location changes after the third
oral postponement, then there is new sale information. NRS 107.082(2).
Thus, if the sale's date, time, or location changes after the third oral
postponement, NRS 107.082(2) requires that this new sale information be
noticed as provided in NRS 107.080(4).
The district court did not err in granting summary judgment
In determining whether the district court erred in granting
summary judgment, this court resolves whether genuine issues of material
fact remained, such that "a rational trier of fact could return a verdict for
the nonmoving party." Wood, 121 Nev. at 731, 121 P.3d at 1031.
Here, Coastline would only be required to give notice under
NRS 107.082(2) if the day, time, or place of the trustee's sale was changed
subsequent to the third oral postponement. Neither party disputes that
the trustee's sale was orally postponed three times and that it occurred on
the date that was identified in the third oral postponement. Likewise, the
record is devoid of any evidence suggesting that the time or place of the
trustee's sale was changed after the third oral postponement was
submitted. Thus, the record does not demonstrate that the time or place
of the sale was changed after the third oral postponement. Therefore, the
district court did not err by granting summary judgment in favor of
Coastline.
The district court did not err when awarding attorney fees
JED asserts that the award of attorney fees and costs to
Coastline must be vacated if JED prevails on its appeal and the summary
judgment order is reversed. Because we find that the district court did not
err in granting summary judgment in favor of Coastline, the district court
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likewise did not abuse its discretion in awarding attorney fees and costs to
Coastline.
CONCLUSION
The plain meaning of NRS 107.082(2) provides that if the time
or place of a trustee's sale changes after the third oral postponement, a
new notice of sale under NRS 107.080 is required. Therefore, because
JED failed to submit any evidence that the day, time, or place of the
trustee's sale in this case changed after the third postponement, we affirm
the district court's grant of summary judgment in favor of Coastline.
Consequently, we also affirm the district court's award to Coastline of
attorney fees and costs.
We concur:
J.
-C241"tr'
Parraguirre
J.
Pickering
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