State, Dept. of Business and Industry v. Black C/W 62048 ( 2014 )

 associated with the advertisement. The district court granted Black's
petition for judicial review and awarded him costs. The NTA appealed.
When reviewing an administrative agency's decision, this
court, like the district court, must "review the evidence presented to the
agency and ascertain whether the agency abused its discretion by acting
arbitrarily or capriciously." Father & Sons & A Daughter Too v. Transp.
Servs. Auth. of Nev., 124 Nev. 254, 259, 182 P.3d 100, 103 (2008). We may
only set aside an agency's decision if it is "affected by error of law or
clearly erroneous in view of the reliable, probative, and substantial
evidence in the record." Id. at 259, 182 P.3d at 104. We review a district
court's interpretation of a statute de novo. D.R. Horton, Inc. v. Eighth
Judicial Dist. Court, 123 Nev. 468, 476, 168 P.3d 731, 737 (2007).
Substantial evidence supports the NTA's finding that Black violated NRS
706.386(1) by holding TCG out as willing to perform an intrastate move
The NTA argues that Black operated as an intrastate common
carrier in violation of NRS 706.386(1) by holding TCG out as willing to
perform a full intrastate move of household goods, even though the NTA
prevented Black and TCG from actually transporting household goods.
Black argues that NRS 706.386(1) cannot be violated unless actual
transportation of household goods occurs. NRS 706.386(1) makes it
unlawful for a Ifjully regulated common motor carrier to operate as a
carrier of intrastate commerce . . . without first obtaining a certificate"
from the NTA. (Emphasis added.) Because both interpretations of the
word "operate" appear reasonable, we conclude that NRS 706.386(1) is
ambiguous and we seek to interpret it to conform to the Legislature's
intent. See D.R. Horton, Inc., 123 Nev. at 476-77, 168 P.3d at 737-38.
We have stated that, for purposes of NRS 706.386, a fully
regulated common carrier is "one who (1) holds himself out to the public as
SUPREME COURT
OF
NEVADA
2
(0) 1947A 440,4
(2) willing to transport household goods for hire." Father & Sons & A
Daughter Too, 124 Nev. at 260, 182 P.3d at 104. We have also stated that
NRS 706.386 cannot be violated without actual transportation of
household goods, id. at 261, 182 P.3d at 105, but in Father & Sons & A
Daughter Too, the issue was whether the cited entity was sufficiently
involved in the transportation, not whether actual transportation
occurred. Id. at 257-58, 182 P.3d at 103. Accordingly, this statement is
dictum and is not controlling. See, e.g., St. James Viii., Inc. v.
Cunningham, 125 Nev. 211, 216, 210 P.3d 190, 193 (2009).
The Legislature enacted NRS Chapter 706 to "to promote safe,
adequate, economical and efficient service. .. in motor transportation"
and "discourage . .. competition that may be detrimental to the traveling
and shipping public or the motor carrier business within this State." NRS
706.151(1)(c), (e). Concluding that NRS 706.386(1) cannot be violated
absent actual transportation of household goods would frustrate these
purposes by requiring the NTA to allow uncertified entities to use the
highways to complete illegal intrastate moves, potentially threatening the
safety of goods and people and increasing competition between certified
and uncertified entities. See NRS 706.151(1)(c), (e). In contrast,
interpreting NRS 706.386(1) to allow preemptive enforcement by the NTA
furthers these legislative purposes by preventing illegal use of the
highways, thereby protecting the public and decreasing detrimental
competition. See NRS 706.151(1)(c), (e). Accordingly, we conclude that
NRS 706.386(1) may be violated if an uncertified entity holds itself out as
willing to perform the services of an intrastate motor carrier, regardless of
whether actual transportation of household goods occurs.
SUPREME COURT
OF
NEVADA
3
(0) 1947A ea
Given this interpretation, we also conclude that substantial
evidence supports the NTA's finding that Black violated NRS 706.386(1).
It is undisputed that Black's employees brought a truck to a customer's
home and prepared to load the truck with the customer's household goods.
Extensive evidence was presented that suggested that (1) the driving
company that Black claimed was going to provide a driver for the truck
either did not exist or was operated by Black, and (2) TCG employees
would have completed the move but for the NTA's interference.
Accordingly, the NTA's finding that Black violated NRS 706.386(1) is
supported by substantial evidence. See Father & Sons & A Daughter Too,
124 Nev. at 259, 182 P.3d at 103-04. We therefore reverse the district
court's order granting judicial review of this violation.
The NTA's finding that Black violated NRS 706.758(1) by advertising full-
service intrastate moues is not supported by substantial evidence
However, we affirm the district court's order granting judicial
review of the advertising violation. It is unlawful to advertise the services
of an intrastate motor carrier without a certificate from the NTA. NRS
706.758(1). Although substantial evidence supports the NTA's finding
that Black was prepared to provide such services, the only advertisement
contained in the record did not mention intrastate moving services or any
other services regulated by the NTA. Therefore, substantial evidence did
not support the NTA's finding that Black violated NRS 706.758(1). See
Father & Sons & A Daughter Too, 124 Nev. at 259, 182 P.3d at 103-04.
The NTA waived appellate review of the award of costs
The NTA also argues that a petition for judicial review is not a
LC
special proceeding" in which costs may be awarded under NRS 18.020(4),
and therefore the district court abused its discretion by awarding Black
costs. However, because the NTA waived appellate review of the award of
SUPREME COURT
OF
NEVADA
4
(0) 1947A
costs by failing to file a motion to retax costs, we decline to address this
argument. See Sheehan & Sheehan v. Nelson Malley & Co., 121 Nev. 481,
493, 117 P.3d 219, 227 (2005). Moreover, because we affirm the district
court's order granting judicial review of the NRS 706.758(1) violation,
Black remains a prevailing party for purposes of costs. See Valley Elec.
Ass'n v. Overlield, 121 Nev. 7, 10, 106 P.3d 1198, 1200 (2005) (stating that
a prevailing party for purposes of an attorney fee award "succeeds on any
significant issue in litigation" (quoting Women's Fed. Sew. & Loan Ass'n v.
Nev. Nat'l Bank, 623 F. Supp. 469, 470 (D. Nev. 1985))). We therefore
affirm the district court's order awarding costs.
Accordingly, we
ORDER the judgment of the district court REVERSED IN
PART AND AFFIRMED IN PART.
J.
J.
Saitta
cc: Hon. Patrick Flanagan, District Judge
Robert L. Eisenberg, Settlement Judge
Attorney General/Carson City
Woodburn & Wedge
Washoe District Court Clerk
SUPREME COURT
OF
NEVADA
5
10) 1947A 0E*