Clark Cnty. v. HQ Metro, LLC , 422 P.3d 1243 ( 2018 )


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  •                                                   134 Nev., Advance Opinion 5,
    IN THE SUPREME COURT OF THE STATE OF NEVADA
    CLARK COUNTY, A POLITICAL                              No. 71877
    SUBDIVISION OF THE STATE OF
    NEVADA,
    Appellant,
    HIED
    vs.                                                         AUG 0 2 2018
    HQ METRO, LLC, AN ARIZONA                                           2ROWN
    LIMITED LIABILITY COMPANY;                                                  :11T
    BYA
    PROJECT ALTA, LLC, A NEVADA                                HIE
    LIMITED LIABILITY COMPANY;
    PROJECT ALTA II, LLC, A NEVADA
    LIMITED LIABILITY COMPANY;
    PROJECT ALTA III, LLC, A NEVADA
    LIMITED LIABILITY COMPANY; AND
    PROJECT ALTA LIQUIDATING TRUST
    U/A/D 12/31/09, BY AND THROUGH
    MARK L. FINE & ASSOCIATES, A
    NEVADA CORPORATION,
    INDIVIDUALLY AND AS TRUSTEE,
    Respondents.
    Appeal from a final judgment in an action for eminent domain.
    Eighth Judicial District Court, Clark County; Ronald J. Israel, Judge.
    Affirmed.
    Steven B. Wolfson, District Attorney, and Leslie A. Nielsen and Laura C.
    Rehfeldt, Deputy District Attorneys, Clark County,
    for Appellant.
    Law Offices of Brian C. Padgett and Amy L. Sugden, Brian C. Padgett, and
    Jeremy B. Duke, Las Vegas,
    for Respondents.
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    BEFORE THE COURT EN BANC.'
    OPINION
    By the Court, CHERRY, J.:
    This appeal challenges a district court order apportioning just
    compensation proceeds in an action for eminent domain. Nevada Power
    Company, d/b/a Nevada Energy (NV Energy), filed a complaint in eminent
    domain to obtain an easement for the installation of electrical transmission
    lines on property owned by respondent HQ Metro, LLC, and leased to
    appellant Clark County. In October 2013, the district court entered an
    order allowing NV Energy to occupy the easement area and construct the
    transmission lines. Before NV Energy physically entered the property to
    begin construction, however, HQ Metro sold the property to Clark County.
    The district court concluded that HQ Metro was entitled to compensation
    for the permanent easement because it was the owner at the time of the
    order granting occupancy, and the court apportioned the proceeds
    accordingly. On appeal, HQ Metro and Clark County dispute which one is
    entitled to compensation for the permanent easement.
    We conclude that the right to compensation vested when the
    district court entered the order granting immediate occupancy in October
    2013, which permitted NV Energy to permanently occupy the easement
    area and to construct and maintain the transmission lines. Thus, the
    district court properly concluded that HQ Metro, as the property's owner at
    the time of the taking, was entitled to compensation for the permanent
    easement.
    'The Honorable Ron D. Parraguirre, Justice, voluntarily recused
    himself from participation in the decision of this matter.
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    FACTS AND PROCEDURAL HISTORY
    In May 2013, NV Energy filed a complaint in eminent domain
    to acquire certain easements to construct, operate, and maintain electrical
    transmission lines on property located at 400 S. Martin Luther King
    Boulevard in Las Vegas, Nevada. NV Energy sought both a temporary
    construction easement of 36,863 square feet and a permanent easement of
    16,861 square feet for the transmission lines across the property. HQ Metro
    was named in the complaint as the property's record owner. The complaint
    also named Clark County as a tenant based on a recorded memorandum of
    lease and purchase option with four Project Alta entities. 2 The lease
    provided for the development and 30-year lease of office space and a parking
    garage on the property to Clark County for sublease to the Las Vegas
    Metropolitan Police Department (LVMPD). The lease also gave Clark
    County the option to purchase the property three years after LVMPD
    commenced operations on the property.
    After filing the complaint, NV Energy moved for immediate
    occupancy under NRS 37.100. Negotiations ensued and the parties entered
    into a stipulation and order for immediate occupancy, conditioned on NV
    Energy depositing $281,000 with the district court. The stipulation
    provided that NV Energy was acquiring the easements for public use and
    authorized NV Energy to immediately occupy both the temporary and
    2 The  Project Alta entities identified in the complaint included
    respondents Project Alta, LLC; Project Alta II, LLC; Project Alta, III, LLC;
    and Project Alta Liquidating Trust U/A/D 12/31109, by and through Mark
    L. Fine & Associates. Although the nature of their interest in the property
    is not entirely clear from the record, they moved collectively with HQ Metro
    for summary judgment as the prior landowners entitled to the
    condemnation proceeds. Therefore, we refer to the prior landowners
    collectively as HQ Metro.
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    permanent easement areas for the purposes of permitting, construction,
    operation, and maintenance of the transmission lines and associated
    facilities on the property. The stipulation further restrained and enjoined
    HQ Metro from interfering with NV Energy's occupancy and performance
    of the work required for the easements. On October 15, 2013, the district
    court filed an order granting immediate occupancy pursuant to the
    stipulation's terms. Shortly thereafter, NV Energy deposited the sum with
    the court, and the order granting immediate occupancy was recorded
    against the property.
    About a year after the order granting immediate occupancy was
    entered, but before NV Energy began construction on the project, HQ Metro
    sold the property to Clark County for $205 million. The September 2014
    purchase and sale agreement transferred from HQ Metro to Clark County
    the real property together with "any and all of [HQ Metro's] rights,
    easements, licenses and privileges presently thereon or appertaining
    thereto." Attached to the agreement was a list of title exceptions that
    included the order granting occupancy, but the agreement did not mention
    the compensation from the condemnation case or who was entitled to it. The
    grant, bargain, and sale deed, recorded in October 2014, conveyed title to
    Clark County subject to an attached list of exceptions, which also included
    the order granting occupancy to NV Energy.
    In January 2015, NV Energy entered the property to begin
    construction of its facilities. Construction of the transmission lines was
    completed four months later in May 2015.
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    HQ Metro and Clark County each moved for summary
    judgment and claimed entitlement to the just compensation proceeds. HQ
    Metro argued that it was entitled to the proceeds as the landowner at the
    time NV Energy obtained the order granting immediate occupancy on
    October 15, 2013. Conversely, Clark County asserted that the right to
    compensation did not vest until NV Energy physically entered the property
    to install the transmission lines in January 2015.
    The district court entered a summary judgment order
    determining that HQ Metro was entitled to damages for the permanent
    easement because it owned the property when the permanent construction
    easement was granted in October 2013. The court also determined that
    LVMPD was entitled to damages under the temporary construction
    easement. Thereafter, the parties reached a global settlement for the total
    amount of $850,000 as compensation due for both the temporary and
    permanent easements. Consistent with its summary judgment order, the
    district court apportioned $775,000 to HQ Metro as damages for the
    permanent easement. Clark County filed this appeal.
    DISCUSSION
    Under both the Nevada and United States Constitutions, the
    government may not take private property for public use without the
    payment of just compensation. Nev. Const. art. 1, § 8(6) ("Private property
    shall not be taken for public use without just compensation having been
    first made."); see also U.S. Const. amend. V ("[N]or shall private property
    be taken for public use, without just compensation."). The parties agree
    that the owner of the property at the time of the taking is entitled to the
    compensation proceeds but they disagree as to the event that constituted
    the taking. HQ Metro argues that the taking occurred when the court
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    entered the order granting immediate occupancy in October 2013, whereas
    Clark County argues that the taking did not occur until NV Energy entered
    the property to begin construction in January 2015.
    Whether a taking has occurred presents a question of law that
    we review de novo. See City of Las Vegas v. Cliff Shadows Prof 1 Plaza, LLC,
    
    129 Nev. 1
    , 11, 
    293 P.3d 860
    , 866 (2013). "A taking can arise when the
    government regulates or physically appropriates an individual's private
    property. Physical appropriation exists when the government seizes or
    occupies private property or ousts owners from their private property."
    ASAP Storage, Inc. v. City of Sparks, 
    123 Nev. 639
    , 647, 
    173 P.3d 734
    , 740
    (2007). When a condemnation proceeding is commenced, NRS 37.100 allows
    the district court to permit a plaintiff, upon a deposit with the court, to
    occupy the premises sought to be condemned pending the entry of judgment.
    See NRS 37.100(2), (6). The court may "restrain the defendant from
    hindering or interfering with the occupation of the premises and the doing
    thereon of the work required for the easement, fee or property rights." NRS
    37.100(8).
    The owner of the property at the time of the taking is the one
    entitled to compensation rather than a subsequent purchaser who owned
    the property when compensation was paid. Argier v. Nev. Power Co., 
    114 Nev. 137
    , 139, 
    952 P.2d 1390
    , 1391 (1998). In Argier, the power company
    filed a complaint to obtain an easement across land owned by the Argiers.
    Id. at 138, 
    952 P.2d at 1390
    . The district court granted immediate
    occupancy and the power company installed the power lines, but the Argiers
    sold the property to the county before the court determined the value of the
    easement and the amount of compensation. Id. at 138, 
    952 P.2d at
    1390-
    91, Consequently, the power company argued it no longer had a duty to
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    compensate the Argiers for the easement because the property was sold
    before the taking occurred when the agency received title in the final order
    of condemnation, whereas the Argiers argued that the taking occurred at
    the point of physical occupation of the property, before it was sold.    Id. at
    138-39, 
    952 P.2d at 1391
    . We held that the power company "effected a
    taking once it entered upon the land," and that equity mandates that the
    right to compensation vests when the condemning agency enters into
    possession of the landowner's property.    Id. at 141, 
    952 P.2d at 1392-93
    .
    Because the Argiers' right to compensation vested when the power company
    entered their property, before the sale to the county, the Argiers were
    entitled to compensation. Id. at 142, 
    952 P.2d at 1393
    .
    The decision in Argier, however, is not directly dispositive of the
    issue before us because, in that case, the power company physically entered
    the property to install the power lines before the land was sold, and, thus,
    the Argier court made no distinction between the order for immediate
    occupancy and the physical entry onto the land. Nonetheless, the reasoning
    in Argier is instructive. In particular, the Argier court explained that
    because compensation for a taking is intended as a substitute for the
    owner's lost interest in the property, the person who owns the property at
    the time of the taking is entitled to the compensation:
    When the government interferes with a person's
    possession of his/her property, the owner loses an
    interest in that property. The award of just
    compensation is a substitute for that lost interest
    in the property. When the owner sells what
    remains of her property, she does not also sell the
    right to compensation. If she did, the original
    owner would suffer a loss and the purchaser would
    receive a windfall.
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    AID
    Id. at 140, 
    952 P.2d at 1392
     (recognizing agreement amongst other
    jurisdictions on the issue).
    In this case, the order granting immediate• occupancy
    constituted a substantial governmental interference with HQ Metro's
    property rights. "The bundle of property rights includes all rights inherent
    in ownership, including the inalienable right to possess, use, and enjoy the
    property."   ASAP Storage, 123 Nev. at 647, 
    173 P.3d at 740
     (internal
    quotations omitted). The order authorized NV Energy to permanently
    occupy the easement area for the purpose of constructing and maintaining
    the transmission lines and associated facilities on the property, and
    restrained and enjoined HQ Metro from interfering with NV Energy's
    occupation and performance of the work required for the easement. The
    order restricted HQ Metro's full use and enjoyment of the property, and the
    entitlement to compensation is a substitute for that lost interest. When HQ
    Metro sold the property, it conveyed title subject to the occupancy order.
    Thus, we conclude that the order granting immediate occupancy constituted
    a taking of property rights and the right to compensation vested at that
    time. Because HQ Metro was the owner of the property, it was entitled to
    compensation for the permanent easement. 3
    County cites Buzz Stew, LLC v. City of North Las Vegas for the
    3 Clark
    holding that a former property owner had failed to establish that a taking
    occurred while it owned the property, and therefore, a provision in the sales
    contract retaining only the right to proceeds from a future condemnation
    action reserved no property interest in the former owner. 
    131 Nev. 1
    , 7, 
    341 P.3d 646
    , 650 (2015). Buzz Stew is distinguishable, however, because here,
    the parties entered into a stipulation and order providing that the
    easements were being acquired for public use and establishing the date of
    occupancy as October 15, 2013. Thus, a taking occurred and the right to
    compensation vested while HQ Metro owned the property.
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    Clark County maintains that a taking did not occur until NV
    Energy could no longer abandon the proceeding, when construction on the
    project commenced. We reject this argument because the order granting
    immediate occupancy constituted an injury to HQ Metro's property rights.
    See Argier, 114 Nev. at 140, 
    952 P.2d at 1391
     ("Damages for the taking of
    land or for the injury to the land not taken belong to the one who owns the
    land at the time of the taking or injury, and they do not pass to a subsequent
    grantee of the land except by a provision to that effect in the deed or by
    separate assignment." (quoting 29A C.J.S. Eminent Domain § 194 (1992))).
    Although a plaintiff may abandon the proceeding at any time until 30 days
    after the final judgment, if the plaintiff has been placed in possession of the
    premises under NRS 37.100, the defendant is entitled to damages from
    occupancy of the abandoned property. NRS 37.180(1), (2). Abandonment
    "merely results in an alteration in the property interest taken—from full
    ownership to one of temporary use and occupation." United States v. Dow,
    
    357 U.S. 17
    , 26 (1958). Because the order granting occupancy constitutes
    an injury to property rights, the right to compensation vested at that time.
    See Argier, 114 Nev. at 141,
    952 P.2d at 1393
     (holding that equity mandates
    vesting occurs when the condemning agency enters into possession of the
    landowner's property).
    Finally, Clark County argues that allowing HQ Metro to keep
    the condemnation proceeds will result in a windfall to HQ Metro because
    there is no evidence that the purchase price was discounted for any taking
    by NV Energy, and that an appraisal obtained by HQ Metro in 2013 did not
    mention the condemnation proceeding or the easement. This court will not
    speculate on whether the purchase price accounted for the property interest
    taken by the condemnation proceeding as it has no bearing on the legal
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    issue of whether the order granting immediate occupancy constituted a
    taking of property rights. As we explained in Argier, the award of just
    compensation is a substitute for the owner's loss occasioned by the taking,
    and the owner sells what remains of her property. 114 Nev. at 140, 
    952 P.2d at 1392
    . "Presumably, the purchaser will pay the seller only for the
    real property interest that the seller possesses at the time of the sale and
    can transfer." Brooks Inv. Co. v. City of Bloomington, 
    232 N.W.2d 911
    , 918
    (1975). Moreover, Clark County had notice of the condemnation proceeding
    and stipulated to entry of the order granting immediate occupancy, and
    Clark County could have contracted for the right to the just compensation
    proceeds when it purchased the property from HQ Metro.         See Dow, 
    357 U.S. at 27
     (rejecting an equitable argument where the purchaser had full
    notice of the condemnation proceeding and had "available contractual
    means by which he could have protected himself vis-a-vis his grantors
    against the contingency that• his claim" for compensation would be
    subsequently invalidated under the law). Thus, the equities do not lie in
    Clark County's favor.
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    CONCLUSION
    We conclude that the right to compensation vested when the
    district court entered the order for immediate occupancy, permitting NV
    Energy to occupy the permanent easement area and enjoining HQ Metro
    from interfering with that occupancy. Consequently, HQ Metro as
    landowner was entitled to compensation for the permanent easement, and
    we affirm the district court's order apportioning the proceeds.
    We concur:
    Th
    , C.J.
    Douglas
    J.
    Pickering
    Hardesty
    144.1C44..0
    J.
    Stiglich
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Document Info

Docket Number: 71877

Citation Numbers: 2018 NV 56, 422 P.3d 1243

Judges: Cherry

Filed Date: 8/2/2018

Precedential Status: Precedential

Modified Date: 10/19/2024