Spittler v. Routsis ( 2013 )

 abuse." Bass-Davis v. Davis, 122 Nev. 442, 453, 134 P.3d 103, 110 (2006)
(internal quotations omitted). "'While review for abuse of discretion is
ordinarily deferential, deference is not owed to legal error." Roth, 127
Nev. at , 252 P.3d at 657 (quoting AA Primo Builders v. Washington,
126 Nev. „ 245 P.3d 1190, 1197 (2010)); see Cooter & Gell v.
Hartmarx Corp., 496 U.S. 384, 405, (1990) (A district court's ruling relying
" on an erroneous view of the law or on a clearly erroneous assessment of
the evidence" is an abuse of discretion).
Pursuant to NRCP 59(a) allows a new trial to be granted if
irregularity in the court's proceedings or abuse of discretion by the court
prevents either party from having a fair trial. The Nevada Code of
Judicial Conduct (NCJC), Canon 1 states that "[a] judge shall uphold and
promote the independence, integrity, and impartiality of the judiciary and
shall avoid impropriety and the appearance of impropriety." Pursuant to
NCJC Canon 1, Rule 1.2, comment 5,
[a]ctual improprieties include violations of law,
court rules, or provisions of this Code. The test for
appearance of impropriety is whether the conduct
would create in reasonable minds a perception
that the judge violated this Code or engaged in
other conduct that reflects adversely on the judge's
honesty, impartiality, temperament, or fitness to
serve as a judge.
Here, the district court judge held an in-chambers conference
with Spittler to discuss settlement at the end of the third day of trial.
"Although efforts on the part of a trial judge to expedite proceedings and
to encourage settlements out of court are ordinarily to be commended,
such efforts should never be so directed as to compel either litigant to
make a forced settlement." Empire Etc. Bldgs. Co. v. Harvey Mach. Co.,
265 P.2d 32, 35 (Cal. Ct. App. 1954). According to Spittler, the judge
SUPREME COURT
OF
NEVADA
2
(0) 1947A
advised him that if he did not accept the settlement offer, the judge "would
enter a direct verdict stopping the trial and any further evidence
produced," causing Spittler serious financial costs. However, this
conference was held after Spittler had presented his own testimony and
the testimony of two witnesses. The only evidence Spittler presented after
the in-chambers conference with the judge was brief testimony from a
realtor, after which Spittler rested his case. Based on this, we conclude
that Spittler's rights were not materially affected by the district court's in-
chambers conference and no irregularity in the proceedings occurred to
prevent Spittler from having a fair trial. See NRCP 59(a); Empire, 265
P.2d at 35 (determining that there was no undue pressure placed on the
parties to force a settlement and thus no abuse of discretion by the trial
judge where "[t]he trial proceeded at some length, the defendant's case
was fully presented, and the case [was] taken under submission before
being decided").
Accordingly, we conclude that the district court did not abuse
its discretion in refusing to grant a new trial as it is unwarranted under
NRCP 59(a). 1 See NCJC Canon 1, Rule 1.2, cmt. 5; Empire, 265 P.2d at
35.
lAlthough Spittler challenges the impartiality of the district court
judge on appeal, Spittler concedes that he did not object to the in-chamber
conference at trial. Spittler argues, however, that he was not required to
object because the district court's error infringes on his constitutional
rights such that plain error applies. Objections to the impartiality of the
tribunal must be timely made; otherwise, such objections are waived. See
Snyder v. Viani, 112 Nev. 568, 573, 916 P.2d 170, 173 (1996); see also
Venetian Casino Resort v. Dist. Ct., 118 Nev. 124, 130, 41 P.3d 327, 331
(2002) (holding that if a party has knowledge of potentially disqualifying
circumstances concerning a special master and fails to object within a
continued on next page...
SUPREME COURT
OF
NEVADA
3
(0) 1947A
The district court did not err in determining that access roadway
easements on parcels patented under the STA are to benefit only small tract
parcels
Under the Small Tract Act of 1938, the United States disposed
of certain 5-acre parcels of government land. 43 U.S.C. § 682a (1940),
repealed by Federal Land Policy and Management Act of 1976, Pub. L. No.
94-579, § 702, 90 Stat. 2743, 2789 (1976). In Nevada, those properties
disposed of are governed by the requirements of the STA Nevada
Classification Order. Bureau of Land Management, Nevada Classification
Order (May 18, 1953) (Classification Order). It is undisputed that
respondents purchased 5-acre parcels that were part of the original
distribution of government land under the STA. What is disputed is the
application of the STA's access roadway easements to the properties
involved in this case.
The district court's deference to a Department of the Interior
memorandum was warranted
Spittler argues that the district court erroneously deferred to
the agency interpretation provided in a Department of the Interior
memorandum. See Bureau of Land Management, Easements Reserved in
Small Tract Act Leases and Patents, Instructional Memorandum No. 91-
196 (February 25, 1991) (Interior Dept. memorandum). He contends that
the district court was required to first make a determination that
Congressional intent was unclear from the statute itself, and the district
...continued
reasonable time, the objection is waived). Therefore, we conclude that
Spittler waived his right to object to the alleged impartiality or bias of the
judge and, accordingly, waived his right to seek review of this issue on
appeal. See NCJC Canon 1, R. 1.2, cmt. 5; Empire, 265 P.2d at 35.
SUPREME COURT
OF
NEVADA
4
(0) 1947A
court never made such a determination prior to relying on the
memorandum. We disagree.
IR]eview in this court from a district court's interpretation of
a statute is de novo." State, Div. of Insurance v. State Farm, 116 Nev.
290, 293, 995 P.2d 482, 484 (2000) (quoting State, Dep't. of Mtr. Vehicles v.
Frangul, 110 Nev. 46, 48, 867 P.2d 397, 398 (1994)). Additionally,
"matters involving the construction of an administrative regulation are a
question of law subject to independent appellate review." Id. at 293, 995
P.2d at 484-85. Regardless, this court will generally defer to the "agency's
interpretation of a statute that the agency is charged with enforcing,'
when determining the meaning of an administrative regulation. Public
Agency Compensation Trust v. Blake, 127 Nev. „ 265 P.3d 694, 697
(2011) (quoting State Farm, 116 Nev. at 293, 995 P.2d at 485). However,
no deference will be given "to the agency's interpretation if, for instance, a
regulation 'conflicts with existing statutory provisions or exceeds the
statutory authority of the agency." Id. (quoting State Farm, 116 Nev. at
293, 995 P.2d at 485); see also Jerry's Nugget v. Keith, 111 Nev. 49, 54, 888
P.2d 921, 924 (1995) ("[A]dministrative regulations cannot contradict the
statute they are designed to implement.").
In Lengerich v. Department of Interior, the Federal Circuit
Court of Appeals stated that substantial deference should be given to an
agency's interpretation of its own regulations, and that the United States
Supreme Court has advised that clear administrative interpretations
warrant enforcement. 454 F.3d 1367, 1372 (Fed. Cir. 2006). "To merit
deference, however, an 'agency's interpretation (1) must have been
directed to regulatory language that is unclear; (2) must have been
actually applied in. . . agency action[s]; and (3) must not be plainly
SUPREME COURT
OF
NEVADA
5
(0) 1947A
erroneous or inconsistent with the regulation." Id. (quoting Gose v. U.S.
Postal Service, 451 F.3d 831, 839 (Fed. Cir. 2006)).
Our review of the Interior Dept. memorandum at issue in this
case indicates that it was offered to clarify regulatory language within the
STA, it has been applied in agency actions and is not a "post hoc
rationalization," Gose, 451 F.3d at 839, and the Department of the
Interior's interpretation is consistent with the statutory language of the
STA. Thus, we conclude that the district court's deference to this
memorandum was warranted in its assessment of rights-of-way available
under the STA, and as requested in this instance by Spittler.
The district court did not err in finding that STA patents limit
roadway easements to the sole benefit of already patented parcels
This court will not disturb a trial court's findings of fact unless
they are "clearly erroneous and not based on substantial evidence."
Chateau Vegas Wine v. So. Wine & Spirits, 127 Nev. „ 265 P.3d
680, 684 (2011) (quoting Beverly Enterprises v. Globe Land Corp., 90 Nev.
363, 365, 526 P.2d 1179, 1180 (1974)). "Substantial evidence is evidence
that a reasonable mind might accept as adequate to support a conclusion."
Jones v. SunTrust Mortgage, Inc., 128 Nev. , 274 P.3d 762, 764
(2012) (internal quotations omitted).
On appeal, Spittler relies solely on the Interior Dept.
memorandum in contending that the district court erred in failing to find
that the parcel maps of the parties' properties show the respective
roadways to be permanent easements. Respondents argue that the
district court did not err in finding that a roadway easement over
respondents' properties in no way benefitted Spittler's property, and
Spittler fails to show on appeal how any of the district court's findings
were clearly erroneous.
6
The Classification Order states, in pertinent part, that
Tracts will be subject to all existing rights-of-way
and to rights-of-way 33 feet in width along or as
near as practicable to the boundaries thereof for
road purposes and public utilities. Such rights-of-
way may be utilized by the Federal Government,
or the State, County or municipality in which the
tract is situated, or by any agency thereof.
(Emphases added.)
The district court concluded that the Classification Order provided no
easement to private owners of land not designated as STA land. We agree.
"When construing a statute, this court looks to the words in the statute to
determine the plain meaning of the statute, and this court will not look
beyond the express language unless it is clear that the plain meaning was
not intended." Hernandez v. Bennett-Haron, 128 Nev. „ 287 P.3d
305, 315 (2012). Rules of statutory construction also apply to
administrative regulations. Silver State Elec. v. State, Dep't of Tax., 123
Nev. 80, 85, 157 P.3d 710, 713 (2007).
Pursuant to the plain language of the Classification Order,
only those existing rights-of-way that were used by a governmental entity
for road and public utility purposes survived. As the record demonstrates
and the district court concluded, the easements on the Purdon and Routsis
properties were never used as roads under the express language of the
Classification Order. The Interior Dept. memorandum clarified that
unless such common law rights-of-way were actually used for the purpose
of serving a small tract parcel, the dedication no longer existed upon the
termination of the classification. Thus, upon the STA's repeal in 1976, the
existing rights-of-way on the Purdon and Routsis properties terminated.
Accordingly, we conclude that Spittler has failed to
demonstrate that the district court's findings were clearly erroneous.
SUPREME COURT
OF
NEVADA
7
(0) I947A
Because substantial evidence in the record supports the district court's
findings, we further conclude that the district court did not err in
determining that a roadway easement over respondents' properties in no
way benefited Spittler's property. See Chateau Vegas Wine, 127 Nev. at
265 P.3d at 684.
The district court did not err in granting respondents' slander of title
claims
The district court concluded that respondents met their
burden of proof in establishing their slander of title claims. In reaching its
decision, the district court specifically concluded that "Spittler's
actions.. . , including but not limited to suing the defendants in order [to]
harass them into a settlement, . . . were not based on reasonable grounds,
but rather, were in bad faith."
Malice is a necessary element of a slander of title claim. "In
order to prove malice it must be shown that the defendant knew that the
statement was false or acted in reckless disregard of its truth or falsity."
Rowland v. Lepire, 99 Nev. 308, 313, 662 P.2d 1332, 1335 (1983).
However, there is no malice if a person has valid reasons to support his or
her claim. Id. "Additionally, evidence of a defendant's reliance on the
advice of counsel tends to negate evidence of malice." Id.Here, the evidence presented at trial demonstrates that upon
first seeking access to his land, Spittler communicated to the United
States Forest Service that he had no other access to his property and was
therefore landlocked. It was only after Spittler observed the tactics of
another neighbor in subdividing his land and suing owners of neighboring
properties to force access did Spittler engage in similar conduct against
respondents. Spittler claims that his reliance on the advice of Jeff Cruess,
an employee of the Washoe County Surveyor's Office, indicates a lack of
SUPREME COURT
OF
NEVADA
8
(0) 1947A
malice. Although Cruess testified in support of Spittler's claim for right-
of-way, the district court concluded that Cruess was misinformed about
key facts and found his testimony "to be admittedly biased, uninformed,
and incorrect." The district court then carefully weighed the evidence
presented before concluding that Spittler knew as early as 2002 that he
had no claimed right of access across respondents' properties. This court
generally defers to the district court regarding witness credibility and will
not reweigh evidence. Castle v. Simmons, 120 Nev. 98, 103, 86 P.3d 1042,
1046 (2004) (noting that this court "will not reweigh the credibility of
witnesses on appeal; that duty rests within the trier of fact's sound
discretion").
Because substantial evidence supports the district court's
conclusion, we conclude that the district court did not err in granting
respondents' slander of title claim. See Chateau Vegas Wine, 127 Nev. at
, 265 P.3d at 684.
The district court did not err in finding that Spittler was not entitled to an
easement by necessity
"Although an implied easement arises by operation of law, the
existence of an implied easement is generally a question of fact." Jackson
v. Nash, 109 Nev. 1202, 1208, 866 P.2d 262, 267 (1993). "An easement by
necessity will generally be found to exist if two requirements are met: (1)
prior common ownership, and (2) necessity at the time of severance." Id.
at 1209, 866 P.2d at 268. "A way of necessity arises from the 'application
of the presumption that whenever a party conveys property, he conveys
whatever is necessary for the beneficial use of that property and retains
whatever is necessary for the beneficial use of land he still possesses." Id.(quoting Daywalt v. Walker, 31 Cal. Rptr. 899, 901 (Ct. App. 1963)).
SUPREME COURT
OF
NEVADA
9
(0) 1947A . 4114-- rg.
The party who seeks to burden the property of another by way
of necessity carries the burden of proof. Id. "In order for an easement by
necessity to exist, both the benefited parcel and the burdened parcel must
have been once owned by the same person." Id. If such common
ownership does not exist, there can be no easement by necessity. Id. at
1210, 866 P.2d at 268.
Here, the record reflects that respondents' small tract parcels
were originally patented in 1956 and 1960 to the properties' predecessors
under the STA, while Spittler's land was originally patented to his
predecessors in 1973 pursuant to a separate Congressional Act. The
patents of these parcels were issued at different periods of time to
different predecessors and the parcels were subsequently subdivided by
these predecessors. Thus, we perceive no common ownership that would
have allowed for a severance of title, creating the need for an easement by
necessity benefitting Spittler's property. We conclude that Spittler fails to
meet the first requirement under Jackson, and has thus failed to prove an
easement by necessity is warranted.
We further conclude that Spittler has failed to demonstrate
that he is landlocked, thereby further negating his easement by necessity
argument. The Forest Service had already granted Spittler an easement
at the time he sought access across respondents' land. The easement
required Spittler to construct a road on the granted access way; however,
Spittler never constructed a road because, upon obtaining the easement,
he decided he no longer wanted to build a home and live on the property.
Thus, we conclude that the district court did not err in finding
that Spittler was not entitled to an easement by necessity.
SUPREME COURT
OF
NEVADA
10
(0) 1947A re ix
The district court did not err in awarding attorney fees and costs as special
damages to respondents
Spittler argues that the Routsises waived their right to
attorney fees as special damages when they failed to plead accordingly in
their counterclaim. 2
A party's failure to properly plead special damages "does not
necessarily bar an award of attorney fees when evidence of attorney fees
as damages has been litigated at trial. In such a case, motions under
NRCP 54(c) or NRCP 15(b) may be appropriate mechanisms for resolving
a conflict between the pleadings and the trial evidence." Sandy Valley
Assocs. v. Sky Ranch Estates, 117 Nev. 948, 959, 35 P.3d 964, 971 (2001)
receded from on other grounds in Horgan v. Felton, 123 Nev. 577, 586, 170
P.3d 982, 988 (2007). However, there must be "sufficient evidence to
support the award and the reasonableness of the fee." Id.In the Routsises' slander of title counterclaim, they alleged
that "[a]s a direct, proximate and foreseeable result of [Spittler]'s slander
of title, [they] have been damaged in excess of $50,000.00 to be shown
according to proof at trial," but they did not include a claim for attorney
fees. However, at trial the Routsises presented evidence to support a
claim for attorney fees without objection and the district court granted
their motion, filed pursuant to NRCP 15, to amend their counterclaim to
add attorney fees as special damages. Therefore, we conclude that the
Routsises did not waive their right to recover attorney fees as special
damages.
2 Spittler does not assert this argument as to Purdon as he properly
pleaded special damages.
SUPREME COURT
OF
NEVADA
11
(0) I947A
LI
Spittler further argues that in a slander of title claim, a
party's costs incurred to litigate the action itself cannot be designated as
special damages. Instead, only those litigation costs incurred to clear title
are properly designated as special damages. Spittler contends that the
district court failed to limit the special damages award to only those fees
necessary to clear title.
"Generally, attorney fees are not recoverable absent a statute,
rule, or contractual provision to the contrary." Horgan, 123 Nev. at 583,
170 P.3d at 986. "As an exception to the general rule, a district court may
award attorney fees as special damages in limited circumstances." Id.(emphasis added). "[A]ttorney fees are only available as special damages
in slander of title actions and not simply when a litigant seeks to remove a
cloud upon title." Id. at 586, 170 P.3d at 988 (emphasis added) (holding
that where the district court failed to find a valid claim for slander of title
to real property, attorney fees were not warranted).
Here, the district court concluded that Spittler's actions
constituted slander of title, and that respondents had suffered special
damages in the form of attorney fees and costs spent to clear title to their
real property. During trial, the district court allowed the respondents to
present evidence in support of their claims for special damages. The court
also permitted the respondents to prove additional attorney fees and costs
through post-trial motions, which Purdon did.
Because the district court is permitted to award attorney fees
as special damages in slander of title actions, and because there is
sufficient evidence to support the reasonableness of the fees awarded here,
we conclude that the district court did not err in awarding respondents
their attorney fees and costs associated with removing the cloud upon
SUPREME COURT
OF
NEVADA
12
their titles. 3 Horgan, 123 Nev. at 586, 170 P.3d at 988; Sandy Valley, 117
Nev. at 959, 35 P.3d at 971.
For the reasons set forth above, we ORDER the judgment of
the district court AFFIRMED.
J.
Parraguirre
J.
cc: Second Judicial District Court Dept. 8
Robert G. Berry, Settlement Judge
Jeffrey A Dickerson
Law Offices of Mark Wray
Chapman Law Firm, P.C.
Washoe District Court Clerk
3 Spittler also argues that respondents failed to apportion and show
by admissible evidence of actual work done and costs incurred, and also
failed to demonstrate that the rate charged was reasonable and customary
in the community. However, Spiffier fails to provide any cogent argument
or legal authority to support these issues on appeal, and thus we do not
consider them. See LVMPD v. Coregis Insurance Co., 127 Nev. ,
n.2, 256 P.3d 958, 961 n.2 (2011) ("Because [the appellant] failed to
provide any argument or citation to authority on the issues . . . we will not
address these issues."); see also NRAP 28(a)(9)(A).
SUPREME COURT
OF
NEVADA
13
(0) 1947A