REYNOLDS VS. TUFENKJIAN ( 2020 )

136 Nev., Advance Opinion I'll
IN THE SUPREME COURT OF THE STATE OF NEVADA
ROBERT G. REYNOLDS, AN No. 78187
INDIVIDUAL; AND DIAMANTI FINE
JEWELERS, LLC, A NEVADA LIMITED
LIABILITY COMPANY,
Appellants,
vs.
FILED
RAFFI TUFENKJIAN, AN
INDIVIDUAL; AND LUXURY
HOLDINGS LV, LLC, A NEVADA
LIMITED LIABILITY COMPANY,
Respondents.
Motion to substitute in as real parties in interest and dismiss
appeal from a district court order granting summary judgment in a tort and
breach of contract action. Eighth Judicial District Court, Clark County;
Mark R. Denton, Judge.
Motion granted in part; appeal dismissed in part.
Marx Law Firm PLLC and Bradley M. Marx, Las Vegas,
for Appellants.
Marquis Aurbach Coffing and Terry A. Moore and Christian T. Balducci,
Las Vegas,
for Respondents.
BEFORE HARDESTY, STIGLICH and SILVER, JJ.
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OPINION
By the Court, SILVER, J.:
A pending motion in this case provides us the opportunity to
address the extent to which a judgment debtor's rights of action are subject
to execution to satisfy a judgment. Respondents have filed a motion to
substitute themselves in place of appellants and to voluntarily dismiss this
appeal because they purchased appellants rights and interests in the
underlying district court action at a judgment execution sale. We agree
with respondents in part. Although Nevada's judgment execution statutes
permit a judgment creditor (respondents) to execute on a debtor's
(appellants) personal property, including the right to recover a debt, money,
or thing in action, those statutes limit the title the sheriff can convey at an
execution sale to only that title which the debtor could convey himself.
Nevada law, in turn, restricts the right to convey certain claims by making
them unassignable. Accordingly, we hold that a judgment debtor's claims
that are unassignable similarly cannot be purchased at an execution sale.
As such, respondents did not purchase the rights to appellants'
unassignable claims. Thus, we grant in part respondents' motion and
dismiss this appeal as to appellants' assignable claims—negligent
misrepresentation and breach of contract.
FACTS AND PROCEDURAL HISTORY
Appellants Robert G. Reynolds and Diamanti Fine Jewelers,
LLC, brought the underlying action against respondents Raffi Tufenkjian
and Luxury Holdings LV, LLC. Appellants alleged breach of contract,
fraud, and tort claims related to their purchase of a jewelry store from
respondents, arguing that they relied on respondents' false representations
of the stores value to their detriment. The district court entered summary
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judgment for respondents, finding no genuine issues of material fact
regarding respondents alleged misrepresentations or appellants' justifiable
reliance upon any of respondents' statements. The district court also
awarded respondents $57,941.92 in attorney fees and costs pursuant to a
provision in the parties' contract.
Appellants appealed the judgment but did not obtain a stay of
execution on the award of attorney fees and costs, claiming they could not
afford to post a supersedeas bond. While the appeal was pending,
respondents obtained a writ of execution, which, in relevant part, allowed
them to execute against Reynolds' personal property. The writ therefore
directed the sheriff to levy and seize upon any and all causes of action,
claims, allegations, assertions or defenses or appellants, including those in
the underlying district court action.
At the sheriff's sale, respondents purchased, for $100, "all the
rights, title and interest or appellants in the district court action.
Respondents now move to substitute themselves in place of appellants
pursuant to NRAP 43 (allowing substitution of a party on appeal) and to
voluntarily dismiss the appeal under NRAP 42(b) (allowing parties to
voluntarily dismiss an appeal), on the basis that they now own the claims
on appeal. Appellants respond that the Nevada Legislature did not intend
for NRS 10.045, which defines personal property to include "things in
action," to allow a party to purchase such "things in action" as a means to
eliminate a litigant's appellate rights. They argue that granting the motion
would prevent parties who may not have the financial ability to satisfy a
contested judgment from asserting their rights to an appeal.
This court ordered the parties to submit supplemental briefing
on the issue of whether each of appellants' claims were properly assigned to
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respondents as a result of the execution sale. See Reynolds v. Tufenkjian,
Docket No. 78187 (Order for Supplemental Briefing, Nov. 1, 2019).
Respondents argue that all of the claims were properly assigned based on
statutory law, while appellants argue that, because the claims were
personal to Reynolds, they were not assignable, and that this court should
void the execution sale on public policy grounds.
DISCUSSION
Only assignable things in action are subject to execution under Nevada law
NRS 21.320 allows a district court to order a judgment debtor's
nonexempt property "be applied toward the satisfaction of the judgment"
against him. NRS 21.080(1) provides that property liable to such execution
includes all of the judgment debtor's personal property. But see NRS 21.090
(listing property exempt from execution). The definition of Ip]ersonal
propert? includes "things in action." NRS 10.045.
Nevada's general policy is that a statute specifying property
that is liable to execution "must be liberally construed for the benefit of
creditors." Sportsco Enters. v. Morris, 112 Nev. 625, 630, 917 P.2d 934, 937
(1996) (citing 33 C.J.S. Executions § 18 (1942)). Referencing that general
policy and the definition of a "thing in action" as "a right to bring an action
to recover a debt, money, or thing," Gallegos v. Malco Enters. of Nev., Inc.,
127 Nev. 579, 582, 255 P.3d 1287, 1289 (2011) (quoting Chose in Action,
Black's Law Dictionary (9th ed. 2009)), this court has concluded that "rights
of action held by a judgment debtor are personal property subject to
execution in satisfaction of a judgment," id. at 582, 255 P.3d at 1289. But
in Butwinick v. Hepner, this court determined that "a 'thing in action'
subject to execution . . . does not include a party's defenses to an action,"
128 Nev. 718, 723, 291 P.3d 119, 121-22 (2012), because a party's defensive
rights do not constitute a "right to bring an action to recover a debt, money,
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or thing," id. at 722, 291 P.3d at 122 (quoting Chose in Action, Black's Law
Dictionary (9th ed. 2009)).
In this case, respondents contend that, by purchasing
appellants' "things in action" at the sheriffs sale, they are entitled to
substitute themselves for appellants in this appeal as the now-owners of the
claims being appealed. This would only be true, however, if "things in
action" encompasses all of appellants underlying claims. In this vein,
appellants argue that claims that are personal in nature are not included
in "things in action" and, therefore, respondents do not own appellants'
personal claims and this court should deny the motion to substitute. They
further argue that allowing the purchase of their claims improperly
impedes on their appellate rights and therefore violates public policy.
Some jurisdictions that permit execution upon a debtor's
"things in action" narrowly interpret the term to only include claims that,
under that jurisdiction's law, the debtor could otherwise assign to another
party. See, e.g., Holt v. Stollenwerck, 56 So. 912, 913 (Ala. 1911) (holding
that "things in action" only includes assignable rights of action); Wittenauer
v. Kaelin, 15 S.W.2d 461, 462-63 (Ky. Ct. App. 1929) (concluding that the
term "chose in action" does not include any right of action that may not be
assigned). Other jurisdictions apply a broader interpretation of "things in
action" to include any claim for damages, without concern for the claim's
assignability otherwise. See, e.g., O'Grady v. Potts, 396 P.2d 285, 289 (Kan.
1964) (characterizing a tort claim as a chose in action and therefore personal
property); Chi., Burlington & Quincy R.R. Co. v. Dunn, 52 111. 260, 264
(1869) ("A right to sue for an injury, is a right of action—it is a thing in
action, and is property.. . . ."). For the reasons set forth below, we agree
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with the former approach and hold that "things in action" only includes
those claims that the judgment debtor has the power to assign.
Nevada is one of several jurisdictions that prohibits the
assignability of certain causes of action, regardless of how the assignment
is accomplished.' See, e.g., Chaffee v. Smith, 98 Nev. 222, 223-24, 645 P.2d
966, 966 (1982) (generally prohibiting the assignment of unasserted legal
malpractice claims on public policy grounds); Gruber v. Baker, 20 Nev. 453,
469, 23 P. 858, 862 (1890) (voiding the assignment of a right to bring a claim
in action for fraud as being contrary to public policy because a fraud claim
is personal to the one defrauded); accord Miller v. Jackson Hosp. & Clinic,
776 So. 2d 122, 125 (Ala. 2000) (acknowledging the general rule that "purely
personar tort claims are not assignable); Webb v. Gittlen, 174 P.3d 275, 278
(Ariz. 2008) (holding that most claims are generally assignable "except
those involving personal injury"). For example, in Prosky v. Clark, this
court held that fraud claims are not assignable because they "are personal
to the one defrauded." 32 Nev. 441, 445, 109 P. 793, 794 (1910). And in
1Respondents argue that their acquisition of Reynolds things in
action at a sheriffs execution sale was a purchase, not an assignment, such
that any restrictions on the assignability of Reynolds' claims should not
apply. The only difference between an "assignment" and a "sale," however,
is the payment of consideration. Compare Assignment, Black's Law
Dictionary (11th ed. 2019) (defining an "assignmene as Wile transfer of
rights or property"), with Sale, id. (defining a "sale" as "Mlle transfer of
property or title for a price" (emphasis added)). Our jurisprudence has not
drawn a distinction between property acquired by judicial sale and property
acquired by assignment, and we decline to do so now. See, e.g., Gallegos,
127 Nev. at 582, 255 P.3d at 1289 (holding that a judicially assigned right
of action was personal property subject to execution to satisfy a judgment);
Sportsco Enters., 112 Nev. at 627-28, 917 P.2d at 935 (considering
competing interests in property assigned by both a voluntary sale and an
execution sale).
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Maxwell v. Allstate Insurance Co., we held that subrogation clauses
allowing the assignment of claims in insurance contracts violated public
policy due to the potential that only the insurer would receive payments
from a personal injury action. 102 Nev. 502, 506-07, 728 P.2d 812, 815
(1986) (holding that such a result would deprive the injured party of "his
actual damages [and] the benefit of the premiums he has paid"). Such
public policy concerns do not arise, however, when an injured party assigns
away the right to proceeds from a personal injury action, rather than the
claim itself. See Achrem v. Expressway Plaza Ltd., 112 Nev. 737, 739-41,
917 P.2d 447, 448-49 (1996) (observing that there is a distinction "between
assigning the rights to a tort action and assigning the proceeds from such
an action"). This is because the a.ssignment of the proceeds from a tort
action still permits the injured party to retain control of his lawsuit "without
any interference" from a third-party assignee. Id. Other claims, such as
contract claims, are generally assignable unless they are personal in nature.
See, e.g., Ruiz v. City of N. Las Vegas, 127 Nev. 254, 261-62, 255 P.3d 216,
221 (2011) (recognizing that contracts are freely assignable, subject to
certain limitations); 6 Am. Jur. 2d Assignments § 46 (2018) (explaining that
claims based on "contracts of a purely personal nature are an exception to
the rule that "choses in action are generally assignable).
Nevada's statutory scheme governing the enforcement of
judgments requires the sheriff's office to carry out a writ of execution by
"collecting [and] selling the [debtofs] things in action and selling the other
property." NRS 21.110. But, because "a judgment creditor can acquire no
greater right in the property levied upon than that which the judgment
debtor possesses," a judgment debtor's property is not subject to
execution "unless the debtor has power to pass title to such property or
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interest in property by his . . . own act." 30 Am. Jur. 2d Executions and
Enforcement of Judgments § 118 (2017). In other words, "not every interest
in property a debtor may have a right to . . . may be subjected to sale under
execution." Shaw v. Frank, 334 S.W.2d 476, 480-81 (Tex. Civ. App. 1959)
(emphasis added). Thus, while there can be no doubt that Reynolds claims
are "things in action" in his hands, such that they allow him to bring an
action for recovery, see Gallegos, 127 Nev. at 582, 255 P.3d at 1289, if the
claims are not assignable, the sheriff cannot force sale of those claims to
satisfy a judgment any more than Reynolds could assign them of his own
volition. See, e.g., State Farm Mut. Auto. Ins. Co. v. Estep, 873 N.E.2d 1021,
1025-26 (Ind. 2007) (invalidating the forced assignment of legal malpractice
claims to satisfy a judgment because those claims were not assignable); see
also Scarlett v. Barnes, 121 B.R. 578, 580 (W.D. Mo. 1990) (holding that,
under Missouri law, whether a cause of action is exempt from attachment
and execution depends on whether it is assignable); Carbo Indus., Inc. v.
Alcus Fuel Oil, Inc., 998 N.Y.S.2d 571, 572 (Sup. Ct. 2014) (applying New
York law that requires property to be assignable in order for it to be reached
to satisfy a judgment); cf. Craft v. Craft, 757 So. 2d 571, 572 (Fla. Dist. Ct.
App. 2000) (observing that personal injury claims are not assignable and
thus not reachable in execution sales). Having concluded that only
assignable claims are subject to execution, our resolution of respondents'
motion depends on whether each of appellants' claims was assignable and
therefore properly executed on.
Tort claims for personal injury are generally not assignable
As stated above, Nevada generally prohibits the assignment of
tort claims on public policy grounds, as many tort claims are personal in
nature and meant to recompense the injured party. See, e.g., Maxwell, 102
Nev. at 506, 728 P.2d at 815 (rejecting the subrogation of tort claims via an
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insurance contract on public policy grounds); Prosky, 32 Nev. at 445, 109 P.
at 794 (recognizing that fraud claims are not assignable due to their
personal nature). But see Achrem, 112 Nev. at 740-41, 917 P.2d at 449
(allowing the assignment of proceeds from a tort action). Two of appellants'
claims fall into this category. The first, fraud/intentional
misrepresentation, has already been held to be personal in nature and
unassignable. See Prosky, 32 Nev. at 445, 109 P. at 794. The second, elder
exploitation, presents a question of first impression as to whether it is
assignable.
The elder exploitation statute's plain language clearly provides
that only the older person can bring the claim. See Beazer Homes Nev., Inc.
v. Eighth Judicial Dist. Court, 120 Nev. 575, 579-80, 97 P.3d 1132, 1135
(2004) (explaining that this court "will not go beyond the language of [a]
statute where "the plain meaning of [the] statute is clear on its face).
Indeed, NRS 41.1395(1) provides that "if an older person . . . suffers a loss
of money or property caused by exploitation, the person who caused
the . . . loss is liable to the older person." (Emphasis added.) And while
NRCP 17(a) permits a party to "sue in their own names without joining the
person for whose benefit the action is broughe under certain circumstances,
none of those circumstances exist here. Respondents neither claim to be
any of the parties entitled to bring claims without naming appellants as the
real parties in interest, see NRCP 17(a)(1)(A)-(F) (listing parties, such as
guardians and trustees, that can bring claims in their own name without
joining the real party in interest), nor does the elder exploitation statute
allow a party other than the affected older person to bring a claim for
damages, see NRCP 17(a)(1)(G) (permitting a party authorized by statute to
maintain a cause of action without joining the injured party); NRS
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41.1395(1) (providing that the liability for an elder exploitation claim lies to
the older person with no language permitting another party to maintain
such a claim on the elder person's behalf).2
Here, permitting respondents to purchase appellants fraud and
elder exploitation claims implicates the same policy concerns addressed in
Maxwell and Achrem: it strips appellants of their right to pursue their
personal injury claims by essentially "plac[ind the right to appeal on an
auction block." RMA Ventures Cal. v. SunAmerica Life Ins. Co., 576 F.3d
1070, 1077 (10th Cir. 2009) (Lucero, J., concurring).3 See also Villanueva v.
First Am. Title Ins. Co., 740 S.E.2d 108, 110 (Ga. 2013) (noting that Georgia
has codified the common-law principle that personal injury claims cannot
be assigned); N. Chi. St. Ry. Co. v. Ackley, 49 N.E. 222, 225 (Ill. 1897)
(voiding the sale or assignment of personal injury claims on public policy
grounds so that personal injury claims would not become a "commodity of
sale"); MP Med. Inc. v. Wegman, 213 P.3d 931, 936 (Wash. Ct. App. 2009)
(disapproving of the purchase of appealed claims at an execution sale
because "allowing one party to destroy the opposing party's appeal by
becoming its owner through enforcement of the very judgment under review
is fundamentally unjust"). Having concluded that appellants' claims for
21ncomparison, NRS 41.085(2) explicitly permits an heir to maintain
a personal cause of action for wrongful death without bringing it in the
name of the decedent or joining the decedent to the action.
3RMA Ventures also involved a defendant purchasing a plaintiffs
claims and then moving to dismiss the appeal regarding those claims. 576
F.3d at 1075. The court ultimately ruled in the defendant's favor based on
Utah law that expressly allows a party to purchase its opponent's claims
and dismiss them, but noted its "degree of discomfort" with the result. Id.(citing Applied Med. Techs., Inc. v. Eames, 44 P.3d 699 (Utah 2002)).
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fraud and elder exploitation are personal to Reynolds, those claims are not
assignable and thus were not subject to execution. Respondents therefore
did not acquire those claims at the sheriffs sale, and as a result, we deny
respondents motion to substitute in as appellants and dismiss these claims.
Tort claims for injury to property are generally assignable
This court also has not yet considered whether a claim for
negligent misrepresentation is assignable. "A determination of whether a
cause of action is assignable should be based upon an analysis of the nature
of the claim to be assigned and on an examination of the public policy
considerations that would be implicated if assignment were permitted." 6A
C.J.S. Assignments § 42 (2016) (recognizing that, aside from claims to
recover personal damages or claims involving personal or confidential
relationships, claims are generally, but not always, assignable); see also
Christison v. Jones, 405 N.E.2d 8, 10 (Ill. App. Ct. 1980) (examining "the
nature of the cause of action . . . and . . . public policy considerations" as
part of its analysis to determine whether certain claims are assignable),
superseded by statute on different grounds as stated in Hoth v. Stogsdill, 569
N.E.2d 34, 38 (Ill. App. Ct. 1991); Webb, 174 P.3d at 278 (providing that,
"absent legislative direction, public policy considerations should" be
weighed when considering whether a claim is assignable).
In Bill Stremmel Motors, Inc. v. First National Bank of Nevada,
94 Nev. 131, 134, 575 P.2d 938, 940 (1978), this court adopted section 552
of the Second Restatement of Torts and limited claims for negligent
misrepresentation to only those claims resulting in pecuniary loss. See
Restatement (Second) of Torts § 552 (Am. Law Inst. 1977); see also Goodrich
& Pennington Mortg. Fund, Inc. v. J.R. Woolard, Inc., 120 Nev. 777, 782,
101 P.3d 792, 795-96 (2004) (limiting damages for negligent
misrepresentation to the "out-of-pocket damages" suffered). In so doing,
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Nevada rejected the "somewhat broader liability" that other jurisdictions
recognize that allows negligent misrepresentation claims to proceed when
the alleged damage is the risk of physical harm rather than pecuniary loss.
See id.; Restatement (Second) of Torts § 311 cmt. a (Am. Law Inst. 1965)
(recognizing the contrast between jurisdictions that allow negligent
misrepresentation claims for risk of physical harm and those that only allow
such claims for pecuniary loss). Under this more limited approach, Nevada
law only recognizes negligent misrepresentation claims in the context of
business transactions. Barmettler v. Reno Air, Inc., 114 Nev. 441, 449, 956
P.2d 1382, 1387 (1998) (stating that negligent misrepresentation "only
applies to business transactions"). Given that negligent misrepresentation
claims in Nevada only arise out of pecuniary loss, it is clear that the nature
of such a claim is not to recover for a personal injury, but instead is more
akin to a claim seeking recovery for a loss of property. Cf. Stalk v. Mushkin,
125 Nev. 21, 26-27, 199 P.3d 838, 841-42 (2009) (acknowledging a difference
between torts that cause injury to property and torts that cause injury to a
person). Claims alleging damages to property, rather than personal
damages, are generally assignable. See, e.g., TMJ Haw., Inc. v. Nippon Tr.
Bank, 153 P.3d 444, 452 (Haw. 2007) (recognizing that property tort claims,
"i.e., those that arise out of an injury to the claimant's property or estate,"
are generally assignable); Grernminger v. Mo. Labor & Indus. Relations
Comm'n, 129 S.W.3d 399, 403 (Mo. Ct. App. 2004) (stating that Missouri
allows the assignment of tort claims, including misrepresentation claims,
when an estate "has been injured, diminished or damage& (quoting State
ex rel. Park Nat'l Bank v. Globe Indem. Co., 61 S.W.2d 733, 736 (Mo. 1933)));
6A C.J.S. Assignments § 50 (2016) (explaining that rights of action in tort
involving damage to property are generally assignable).
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Additionally, because a claim for negligent misrepresentation
in Nevada can only be based on pecuniary loss, assigning such claims does
not implicate the same public policy concerns this court observed in Prosky,
32 Nev. at 445, 109 P. at 794, and Maxwell, 102 Nev. at 506-07, 728 P.2d at
815, because they do not include "non-economic losses such as physical pain
and mental anguish." Maxwell, 102 Nev. at 507, 728 P.2d at 815. As the
losses for a negligent misrepresentation claim are limited to purely
monetary losses, assigning appellants rights to their negligent
misrepresentation claim is more akin to the assignment of proceeds from a
personal injury tort than to the assignment of the claim itself. See Achrem,
112 Nev. at 739-41, 917 P.2d at 448-49 (noting with approval that some
jurisdictions allow assignment of the proceeds of a tort action where the
assignor retains control of the action).
Based on the foregoing, we hold that while claims for personal
injury torts are not assignable, when a tort claim alleges purely pecuniary
loss, as is the case with appellants' negligent misrepresentation claim, the
claim may be assigned. And, because the claim may be assigned, it is
subject to execution in satisfaction of a judgment. Compare Gallegos, 127
Nev. at 582, 255 P.3d at 1289 (allowing assignment and execution of
contract-based rights of action), with Chaffee, 98 Nev. at 223-24, 645 P.2d
at 966 (disallowing execution on a claim for legal malpractice because it was
not assignable). Other jurisdictions have come to similar conclusions and
allowed the assignment of tort claims affecting property while prohibiting
the assignment of personal injury tort claims. See, e.g., St. Luke's Magic
Valley Reg? Med. Ctr. v. Luciani, 293 P.3d 661, 665 (Idaho 2013) (explaining
that personal injury torts are generally not assignable, but distinguishing
tort claims that result in property damage); Scottsdale Ins. Co. v. Addison
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Ins. Co., 448 S.W.3d 818, 829 (Mo. 2014) (explaining that causes of action
for torts that cause injury to property are assignable, but personal injury
torts are not). Because appellants claim for negligent misrepresentation is
a property tort, we conclude that this claim was properly assigned to
respondents at the sheriffs execution sale. Respondents' motion to
substitute in place of appellants and to dismiss this appeal as to the
negligent misrepresentation claim is therefore granted.
Contract-based claims are generally assignable
Appellants' final claim is for breach of contract. Under Nevada
law, contract-based claims in action are generally assignable and thus
"subject to execution in satisfaction of a judgment," unless personal in
nature. Gallegos, 127 Nev. at 582, 255 P.3d at 1289; see also 6 Am. Jur. 2d
Assignments § 15 (2018) (explaining the general rule that "unless an
assignment would add to or materially alter the obligor's duty of risk," the
contract itself restricts assignability, or the assignment would violate a
statute, "most rights under contracts are freely assignable). But see HD
Supply Facilities Maint., Ltd. v. Bymoen, 125 Nev. 200, 204-05, 210 P.3d
183, 185-86 (2009) (providing an exception to the general rifle that breach
of contract claims are generally assignable for personal service contracts);
Traffic Control Servs., Inc. v. United Rentals Nw., Inc., 120 Nev. 168, 176,
87 P.3d 1054, 1060 (2004) (observing that noncompete agreements are
"personal in nature and therefore are not assignable absent the employees
express consent). Appellants present no arguinent to depart from this
general rule, and we find no reason to do so as the contract at issue is not a
personal service contract. Therefore, respondents' motion to substitute
themselves for appellants and to dismiss this appeal as to appellants'
breach-of-contract claim is granted.
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CONCLUSION
Because appellants claims for fraud and elder exploitation are
personal in nature, they are not assignable and thus were not subject to
execution at the sheriff s sale. Therefore, respondents did not acquire these
claims at the execution sale, and we deny their motion to substitute
themselves for appellants and to dismiss this appeal as to the fraud and
elder exploitation claims. Having further concluded that appellants' claims
for negligent misrepresentation and breach of contract are assignable and
subject to execution, we grant respondents' motion to substitute themselves
for appellants as to those claims and to voluntarily dismiss this appeal as
to those claims. Accordingly, we reinstate briefing solely as to the summary
judgment on appellants' claims for fraud and elder exploitation.
Respondents shall have 30 days from the date of this opinion to file and
serve the answering brief. 4 Thereafter, briefing shall proceed in accordance
with NRAP 31(a)(1).
ki..2,44) J.
Silver
We co cur:
el-ft-4-1\ J.
Hardesty
Stiglich
To the extent appellants' opening brief addresses their claims for
4
negligent misrepresentation and breach of contract, respondents need not
respond to those arguments, as we will not address them in resolving this
appeal.
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