Iliescu v. Reg'l Transp. Comm'n , 2022 NV 72 ( 2022 )

138 Nev., Advance Opinion 74
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
JOHN ILIESCU, JR., AND SONNIA No. 83212-COA
ILIESCU, TRUSTEES OF THE JOHN
ILIESCU, JR. AND SONNIA ILIESCU
1992 FAMILY TRUST; JOHN ILIESCU,
JR., AN INDIVIDUAL; AND SONNIA "ne
ILIESCU, AN INDIVIDUAL,
Appellants, NOV 1 7 2022
vs. ELI • H A. BRO'
UPREME
THE REGIONAL TRANSPORTATION CLERY
BY
COMMISSION OF WASHOE COUNTY, H1EF DEPUTY CLERK
Respondent.
JOHN ILIESCU, JR., AND SONNIA No. 83756-COA
ILIESCU, TRUSTEES OF THE JOHN
ILIESCU, JR. AND SONNIA ILIESCU
1992 FAMILY TRUST; JOHN ILIESCU,
JR., AN INDIVIDUAL; AND SONNIA
ILIESCU, AN INDIVIDUAL,
Appellants,
vs.
REGIONAL TRANSPORTATION
COMMISSION OF WASHOE COUNTY,
Respondent.
Consolidated appeals from district court orders granting
summary judgment and awarding attorney fees and costs in a tort and
contract action. Second Judicial District Court, Washoe County; David A.
Hardy, Judge.
Affirmed in part, reversed in part, vacated in part, and
remanded.
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Albright, Stoddard, Warnick & Albright and D. Chris Albright, Las Vegas,
for Appellants.
Woodburn & Wedge and Dane W. Anderson, Reno,
for Respondent.
BEFORE THE COURT OF APPEALS, GIBBONS, C.J., TAO and BULLA,
JJ.
OPINION
By the Court, GIBBONS, C.J.:
In this appeal, we address the grants of dismissal and summary
judgment as to claims of improper actions by the Regional Transportation
Commission of Washoe County that occurred during the completion of a
construction project on appellants' property after condemnation
proceedings. In so doing, we discuss actions in tort and contract law that
remain underdeveloped in Nevada law. We conclude that the district court
correctly dismissed appellants' claims for waste and injunctive relief, and
correctly granted summary judgment on their contract-based claims.
However, the district court erred in granting summary judgment on
appellants' claims for trespass and declaratory relief. For the reasons
articulated herein, we affirm in part, reverse in part, vacate in part, and
remand.
FACTS AND PROCEDURAL HISTORY
Although this is not an appeal from a condemnation action, the
facts underlying this appeal began with one. Respondent Regional
Transportation Commission of Washoe County (RTC) filed a complaint in
eminent domain seeking to acquire a permanent easement, a public utility
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easement, and a temporary construction easement on commercial property
owned by the John Iliescu, Jr. and Sonnia Iliescu 1992 Family Trust.
Appellants John Iliescu, Jr., and Sonnia Iliescu (collectively, the Iliescus)
are trustees of the family trust. The RTC sought the easements in
furtherance of its "4th Street/Prater Way Complete Street and [Bus Rapid
Transit] Project" in Reno, which was intended to improve traffic flow along
4th Street and Prater Way. Specifically, the project included
"undergrounding of existing overhead utilities within the [p]roject area,
construction of curbs, gutters, pedestrian ramps and sidewalks, and
installation of new lighting fixtures and landscaping within the [p]roject
limits." Eventually, the parties stipulated to, and the district court ordered,
the taking in exchange for a payment of $11,065 to the Iliescus as just
compensation. The court also ordered that the permanent easement and
the public utility easement were "perpetual easements" for access to and
rnaintenance of the public utilities.
Ten months after the district court's order in the condemnation
proceedings, the Iliescus filed a complaint alleging 12 causes of action
against the RTC. According to the Iliescus, during the previous project and
despite their objections, the RTC and its contractors drove over and parked
their vehicles (including 20-ton work trucks) on the Iliescus' "Remaining
Property"—a parking lot on the parcel not subject to condemnation. The
Iliescus alleged that the RTC's conduct precluded them at times from using
any portion of the "Remaining Property," caused physical damage to the
parking lot, and caused both John and Sonnia to suffer severe and ongoing
"psychological and emotional anguish, pain and distress, with physical
rn a nifestations."
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The RTC filed a first motion to dismiss 8 of the complaint's 12
causes of action. During litigation, the parties stipulated that the Iliescus
no longer wished to pursue damages for emotional distress or personal
injury. The district court therefore dismissed their claim for intentional
and/or negligent infliction of emotional distress.
The Iliescus filed an amended complaint alleging 11 causes of
action.' Thereafter, the RTC filed a supplemental motion to dismiss as to
six of the causes of action. The district court granted the RTC's motion to
dismiss as to the Iliescus' claims for injunctive relief, breach of fiduciary
duty, waste, conversion, and tortious breach of the covenant of good faith
and fair dealing. The court denied the motion to dismiss as to the Iliescus'
civil conspiracy claim.
The RTC eventually moved for summary judgment as to the
Iliescus' remaining claims, which included breach of contract, breach of the
implied covenant of good faith and fair dealing, trespass, civil conspiracy,
negligence, and declaratory relief. The Iliescus opposed the motion and
supported their opposition with various exhibits that had previously been
filed in the case. The district court ultimately granted the RTC's motion for
summary judgment, ruling that the Iliescus had failed to present any
admissible evidence in support of their claims.2 It subsequently granted the
RTC's motion for attorney fees, ruling that although the Iliescus appeared
1The causes of action included breach of contract, breach of the
covenant of good faith and fair dealing (contract claim), breach of fiduciary
duty, waste, conversion, trespass, civil conspiracy, negligence, tortious
breach of the covenant of good faith and fair dealing, injunctive relief, and
declaratory relief.
2 0n appeal, the Iliescus only challenge the district court's rulings
discussed herein.
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to have good faith bases for bringing their daims, "their counsel failed to
produce discovery or disrniss the action if discovery would be impossible due
to hardship."3 The district court awarded the RTC $61,057.07 in attorney
fees under NRS 18.010(2)(b) and $3,647.35 in costs as the prevailing party
under NRS 18.020. The Iliescus now raise multiple issues on appeal. We
address each in turn.
The district court did not err in dismissing the Theseus' claim for waste
The Iliescus argue the district court erred in dismissing their
claim for waste and ruling that the RTC was not a guardian or tenant as to
their "Remaining Property" (the parking lot) for the purposes of satisfying
NRS 40.150.4 They argue the RTC "had been granted entry rights onto
certain portions of [their] [p]roperty" and therefore was a tenant of the
property and could commit waste by damaging the surface of the lot with
its heavy equipment. The RTC counters that the Iliescus' complaint never
alleged that the RTC was a tenant as to their parking lot. It argues that,
indeed, the complaint made clear that the RTC and its contractors used the
parking lot despite having no right to do so and over the Iliescus' frequent
objections.
3We acknowledge that the Iliescus could have done more to vigorously
prosecute their claims before the district court. During the proceedings
below, the RTC requested multiple times that the court dismiss the Iliescus'
case for lack of prosecution. As pertinent to this appeal, the district court
denied each of those requests.
4"If
a guardian, tenant for life or years, joint tenant or tenant in
common of real property commit waste thereon, any person aggrieved by
the waste may bring an action against the guardian or tenant who
committed the waste, in which action there may be judgment for treble
damages." NRS 40.150.
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A defendant's motion to dismiss "under NRCP 12(b)(5) is
subject to a rigorous standard of review on appeal." Buzz Stew, LLC v. City
of North Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008) (internal
quotation marks omitted). In reviewing dismissal under NRCP 12(b)(5), we
recognize all factual allegations in the plaintiffs' complaint as true and draw
all inferences in their favor. Id. at 228, 181 P.3d at 672. A claim should be
dismissed under NRCP 12(b)(5) only if it appears beyond a doubt that the
plaintiffs could prove no set of facts, which, if true, would entitle them to
relief. Id. Because Nevada is a "notice-pleading" jurisdiction, a complaint
need only set forth sufficient facts to demonstrate the necessary elements
of a claim for relief so that the defending party has "adequate notice of the
nature of the claim and relief sought." W. States Constr., Inc. v. Michoff,
108 Nev. 931, 936, 840 P.2d 1220, 1223 (1992); see also Droge v. AAAA Two
Star Towing, Inc., 136 Nev. 291, 308-09, 468 P.3d 862, 878-79 (Ct. App.
2020) (discussing Nevada's liberal notice-pleading standard).
Nevada law provides for a cause of action against a guardian or
tenant of real property who "commit [s] waste thereon." NRS 40.150
(emphasis added). "Waste is generally considered a tort defined as the
destruction, alteration, rnisuse, or neglect of property by one in rightful
possession to the detriment of another's interest in the same property." 8
Michael Allan Wolf, Powell On Real Property § 56.01 (2021). A cause of
action for waste requires the defendant to be in or have been in lawful
possession of the property on which the alleged waste occurred. See
Stephenson v. Nat'l Bank of Winter Haven, 109 So. 424, 425-26 (Fla. 1926)
("[W]aste is an abuse or destructive use of the property by one in rightful
possession."); Hamilton v. Mercantile Bank of Cedar Rctpids, 621 N.W.2d
401, 409 (Iowa 2001) ("A claim for waste is an action at law brought by a
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remainderman against a tenant in lawful possession of land . .. ."); Mich.
Oil Co. v. Nat. Res. Cornm'n, 276 N.W.2d 141, 147 (Mich. 1979) ("[T]he
ordinary use of the term 'waste' does not refer only to waste of oil and gas,
but includes any spoilation or destruction of the land, including flora and
fauna, by one lawfully in possession, to the prejudice of the estate or interest
of another."); Meyer v. Hansen, 373 N.W.2d 392, 395 (N.D. 1985) ("Waste
may be defined as an unreasonable or improper use, abuse,
mismanagement, or omission of duty touching real estate by one rightfully
in possession, which results in a substantial injury."). Not surprisingly,
then, each type of tenancy mentioned in NRS 40.150 includes an interest in
real property. See NRS 40.150 (stating that a waste action can be
maintained against a "tenant for life or years, joint tenant or tenant in
common of real property").
Here, the Iliescus alleged that, in completing its project, the
RTC damaged their parking lot, which was on "that portion of [their]
[p]roperty not subject to the condemnation, and not involved in whatsoever
nature in the [p]roject." The Iliescus further alleged that they frequently
objected to this "unauthorized and illegal use" of their parking lot. The
Iliescus did not argue below, nor do they argue on appeal, that the RTC had
a legal right to use their parking lot. Rather, both below and on appeal,
they argue that the RTC was a tenant only as to the property that was
condemned.
Assuming the RTC was a tenant over the Iliescus' condemned
property, under NRS 40.150, the RTC could only have committed waste
"thereon"—on the condemned property, not on the Iliescus' parking lot. And
the Iliescus have not alleged that the RTC committed waste as to the
condemned portion of their property. Therefore, even taking every
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inference in the Iliescus' favor, see Buzz Stew, 124 Nev. at 228, 181 P.3d at
672, the district court did not err by dismissing their waste claim.
The district court did not err in disinissing the Iliescus' separate cause of
action for injunctive relief
The Iliescus argue the district court erred in dismissing their
separate cause of action for injunctive relief because lilt is entirely possible
and even plausible that the RTC" may again "overstep [its] boundaries in
accessing and damaging the remaining portions of [their] property" during
some future repairs to the RTC's permanent easements.5 As a threshold
matter, injunctive relief is a remedy, not a separate cause of action. See
State Farm Mut. Auto. Ins. Co. v. Jafbros Inc., 109 Nev. 926, 928, 860 P.2d
176, 178 (1993) (explaining that a violated right is a prerequisite to granting
injunctive relief and an injunction is not appropriate "to restrain an act
which does not give rise to a cause of action" (internal quotation marks
omitted)); Knutson v. Vill. of Lakemoor, 932 F.3d 572, 576 n.4 (7th Cir. 2019)
("With respect to injunctive relief, that is a remedy, not a cause of action,
and thus should not be pleaded as a separate count"); Klay v. United
Healthgrp., Inc., 376 F.3d 1092, 1100 (11th Cir. 2004) (explaining that
"traditional injunctions are predicated upon [a] cause of action"); Shell Oil
Co. v. Richter, 125 P.2d 930, 932 (Cal. Dist. Ct. App. 1942) (explaining that
injunctive relief is a remedy, not a cause of action, and thus, a cause of
action must be asserted against the party before injunctive relief may be
5The Iliescus also argue that the RTC could have been enjoined to
restore their property to the state it was in before the RTC allegedly
damaged it. However, they did not make this argument below, and we
decline to consider it on appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev.
49, 52, 623 P.2d 981, 983 (1981) (explaining that issues not argued below
are "deemed to have been waived and will not be considered on appeal").
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requested against that party); Terlecki v. Stewart, 754 N.W.2d 899, 912
(Mich. Ct. App. 2008) ("It is well settled that an injunction is an equitable
remedy, not an independent cause of action."). Therefore, to the extent that
the Iliescus pleaded injunctive relief as an independent cause of action, the
district court did not err in dismissing that claim. See Knutson, 932 F.3d at
576 n.4.
However, "the question whether a litigant has a 'cause of action'
is analytically distinct and prior to the question of what relief, if any, a
litigant may be entitled to receive." Davis v. Passman, 442 U.S. 228, 239
(1979) (emphasis added); see also State Farm, 109 Nev. at 928, 860 P.2d at
178 ("It is axiomatic that a court cannot provide a remedy unless it has
found a wrong."). Therefore, even though we affirm the dismissal of the
independent cause of action, as discussed below, we reverse the grant of
summary judgment on the Iliescus' trespass claim. Therefore, on remand,
they may seek permanent injunctive relief as a remedy for that claim,
should they prevail on it.
The district court did not err in granting the RTC's motion for summary
judgment as to the Iliescus' contract-based claims
The Iliescus argue the district court erred in granting summary
judgment in favor of the RTC as to their breach-of-contract claim because
the parties had entered into a contract by way of a stipulation in the prior
condemnation proceedings. They argue that, at the very least, their
evidence that a stipulation existed should have precluded summary
judgment. The RTC counters that the prior stipulation was not relevant to
any alleged use of or damage to the Iliescus' parking lot. It further argues
that summary judgment was proper because the Iliescus failed to provide
any evidence of causation or actual damages in support of their breach-of-
contract claim.
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We review a district court's order granting summary judgment
de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029
(2005). Summary judgment is proper if the pleadings and all other evidence
on file demonstrate that there exists no genuine dispute of material fact
"and that the moving party is entitled to a judgment as a matter of law."
Id. (internal quotation marks omitted); see also NRCP 56(a). "A factual
dispute is genuine when the evidence is 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. In rendering a decision on a motion for summary
judgment, all evidence "must be viewed in a light most favorable to the
nonmoving party." Id. at 729, 121 P.3d at 1029. The party moving for
summary judgment must meet its initial burden of production to show there
exists no genuine dispute of material fact. Cuzze v. Univ. & Cmty. Coll. Sys.
of Nev., 123 Nev. 598, 602, 172 P.3d 131, 134 (2007). The nonmoving party
must then "transcend the pleadings and, by affidavit or other admissible
evidence, introduce specific facts that show a genuine [dispute] of material
fact." Id. at 603, 172 P.3d at 134.
To prevail on a claim for breach of contract, the plaintiff must
establish (1) the existence of a valid contract, (2) that the plaintiff
performed, (3) that the defendant breached, and (4) that the breach caused
the plaintiff damages. Saini v. Int'l Game Tech., 434 F. Supp. 2d 913, 919-
20 (D. Nev. 2006); Reichert v. Gen. Ins. Co. of Am., 442 P.2d 377, 381 (Cal.
1968). Relating to damages, a plaintiff must prove both (1) a causal
connection between the defendant's breach and the damages asserted, and
(2) the amount of those damages. See Mort Wallin of Lake Tahoe, Inc. v.
Commercial Cabinet Co., 105 Nev. 855, 857, 784 P.2d 954, 955 (1989) ("The
party seeking damages has the burden of proving both the fact of damages
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and the amount thereof."); Saks Fifth Ave., Inc. v. James, Ltd., 630 S.E2d
304, 311 (Va. 2006) ("A plaintiff thus must prove two primary factors
relating to damages. First, a plaintiff must show a causal connection
between the defendant's wrongful conduct and the damages asserted.
Second, a plaintiff must prove the amount of those damages by using a
proper method and factual foundation for calculating damages." (internal
citations ornitted)).6 The burden of proving the amount of darnages "need
lot be met with mathematical exactitude, but there must be an evidentiary
basis for determining a reasonably accurate amount of damages." Mort
Wallin, 105 Nev. at 857, 784 P.2d at 955.
Here, the Iliescus alleged that, during the prior condemnation
proceedings, they entered into a valid agreement by which the RTC was
entitled to complete its project in exchange for compensating the Iliescus for
the condemnation. They further alleged that the way in which the RTC
carried out the project constituted a breach of the parties' agreement. The
Iliescus supported these allegations with a portion of an order from the
condemnation proceedings that ordered the parties to "cooperate so as to
6 See also Omaha Pub. Power Dist. v. Darin & Armstrong, Inc., 288
N.W.2d 467, 474 (Neb. 1980) ("It is a basic concept that in any damage
action for breach of contract the claimant must prove that the breach of
contract complained of was the proximate cause of the alleged damages.");
Florafax Int'l, Inc. v. GTE Mkt. Res., Inc., 933 P.2d 282, 296 (Okla. 1997)
("In order for damages to be recoverable for breach of contract they must be
clearly ascertainable . . . and it must be made to appear they are the natural
and proximate consequence of the breach and not speculative and
contingent."); Logan v. Mirror Printing Co. of Altoona, 600 A.2d 225, 226
(Pa. Super. Ct. 1991) ("In order to recover for damages pursuant to a breach
of contract, the plaintiff must show a causal connection between the breach
and the loss."); Abraxas Petroleum Corp. v. Hornburg, 20 S.W.3d 741, 758
(Tex. App. 2000) ("The absence of [a] causal connection between the alleged
breach [of contract] and the alleged damages will preclude recovery.").
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minimize interference between construction of the [p]roject and [the
Iliescusl use of the remaining land . . . on APN 008-244-15." That order
also made multiple references to a stipulation to which the parties had
agreed. The Iliescus further provided a detailed quote for services, from
Desert Engineering, to repair the parking lot for $84,550.
Below, the RTC met its initial summary judgment burden by
pointing out that there was an absence of evidence to support the Iliescus'
breach-of-contract claim as to damages. See Cuzze, 123 Nev. at 602-03, 172
P.3d at 134 (explaining that where the nonmoving party would bear the
burden of persuasion at trial, the party moving for summary judgment can
satisfy its burden of production by "pointing out . . . that there is an absence
of evidence to support the nonmoving party's case" (omission and internal
quotation marks omitted)). Thus, the burden shifted to the Iliescus to
"transcend the pleadings" and demonstrate there was a genuine dispute of
material fact as to damages. Id. at 603, 172 P.3d at 134.
In response, the Iliescus provided photographs purporting to
show the state of the parking la prior to the RTC's project. They also
provided photographs allegedly depicting the RTC's workers during the
completion of the project, with their vehicles parked on the Iliescus' parking
lot in the background. However, although the Desert Engineering quote
may have served to demonstrate a dispute as to the amount of their
damages, the Iliescus failed to present any evidence demonstrating a causal
connection between the RTC's alleged breach of contract and the damage to
the parking lot. They failed to provide photographs depicting the parking
lot after the RTC completed its project; deposition testimony stating that
the RTC's breach had caused the damage; expert testimony regarding
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causation, scope of repair, diminishment in value, and damages,7 or any
other evidence related to causation, only argument.
Additionally, although the Iliescus provided evidence that the
parties had entered into a contract previously,8 it is unclear how a breach
of that contract could have caused damage to the parking lot. Even
assuming the RTC had agreed, as the prior district court ordered, to
"cooperate so as to rninimize interference between construction of the
[p]roject and [the Iliescusl use of [their] remaining land," the Iliescus have
not explained how a breach of that agreement could have caused physical
damage to their parking lot.9 Accordingly, the Iliescus did not demonstrate
that there existed evidence of causation, an essential element of a breach-
of-contract claini, therefore failing to create a genuine dispute as to
damages.
7The district court determined that expert evidence was needed on
these matters. The Illiescus do not argue that the district court erred in
this determination, so this issue is waived. See Powell v. Liberty Mut. Fire
Ins. Co., 127 Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (providing that
issues not raised on appeal are deemed waived).
8"A written stipulation is a species of' contract." DeChambeau v.
Balkenbush, 134 Nev. 625, 628, 431 P.3d 359, 361 (Ct. App. 2018) (quoting
Redrock Valley Ranch, LLC v. Washoe County, 127 Nev. 451, 460, 254 P.3d
641, 647 (2011)).
9We note that, in their stipulation to dismiss their personal injury
claims, the Iliescus agreed that they would only pursue compensatory
damages in this case as to physical damage to their parking lot—
presumably waiving any right to recover compensatory damages for any
interference with their use of their land.
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The Iliescus further summarily argue the district court erred in
granting summary judgment against them as to their claim for breach of
the implied covenant of good faith and fair dealing. "Where the terms of a
contract are literally complied with but one party to the contract
deliberately countervenes the intention and spirit of the contract, that party
can incur liability for breach of the implied covenant of good faith and fair
dealing." Hilton Hotels Corp. v. Butch Lewis Prods., Inc., 107 Nev. 226, 232,
808 P.2d 919, 922-23 (1991). However, here, the Iliescus have not developed
any argument or provided any relevant authority as to why the district
court erred in granting summary judgment as to this claim. Therefore, we
need not consider it. See Edwards v. Emperor's Garden Rest., 122 Nev. 317,
330 n.38, 130 P.3d 1280, 1288 n.38 (2006) (explaining that this court need
not consider an appellant's argument that is not cogently argued or lacks
the support of relevant authority). In light of the foregoing, the district
court did not err in granting summary judgment in favor of the RTC as to
the Iliescus' contract-based claims.
The district court erred in granting summary judgment in favor of the RTC
as to the Theseus' trespass claim and their request for declaratory relief
Finally, the Iliescus argue the district court erred in granting
summary judgment in the RTC's favor as to their trespass claim. Nevada
has long recognized trespass as an action for injury to a plaintiff's
possession of land. See Rivers v. Burbank, 13 Nev. 398, 408 (1878). To
maintain a trespass action, the plaintiff must demonstrate that the
defendant invaded a property right. Lied v. Clark County, 94 Nev. 275, 279,
579 P.2d 171, 173-74 (1978). Where the evidence supports a trespass, an
award of nominal damages is not improper. Parkinson v. Winniman, 75
Nev. 405, 408, 344 P.2d 677, 678 (1959); see also Droge, 136 Nev. at 312
n.17, 468 P.3d at 880 n.17 (stating that the plaintiffs could pursue nominal
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damages as to their trespass claim). And "an injunction is an appropriate
remedy for the threat of continuing trespass." S.O.C., Inc. v. Mirage Casino-
Hotel, 117 Nev. 403, 416, 23 P.3d 243, 251 (2001).
To prevail on a claim for trespass, the Iliescus would need to
prove that the RTC's conduct constituted an invasion of a property right.
See Lied, 94 Nev. at 279, 579 P.2d at 173-74. Here, the Iliescus alleged the
RTC and its contractors parked vehicles on their parking lot "on virtually
every workday during the term of the [p]roject." These vehicles allegedly
included the workers' personal vehicles ("pick-up trucks, SIJV's[,] and
automobiles") along with work trucks weighing approximately 20 tons.
According to the Iliescus, this conduct occurred without their consent and
despite their "frequent objections" to it. The Iliescus supported these
allegations with photographs depicting the vehicles parked on the portion
of their property not subject to condemnation (the "[r] emaining [p]roperty"
or parking lot). The Iliescus also provided photographs appearing to depict
workers working on the RTC's project, with trucks parked in the parking
lot in the background. In addition, John testified at his deposition without
objection that he assumed the trucks were associated with the RTC because
the workers who drove them were not associated with him or Sonnia and
"were doing RTC work." Similarly, at her deposition, Sonnia testified that
the trucks and equipment parked on the Iliescus' property belonged to
"construction people working on the RTC project."
Considering the foregoing, the Iliescus introduced specific facts,
using admissible evidence,1° that demonstrated a genuine dispute of
1 °A
court may consider all evidence on file when ruling on a motion
for summary judgment. Wood, 121 Nev. at 729, 121 P.3d at 1029; see also
NRCP 56(b)(3). The RTC avers that the Iliescus failed to present any
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material fact as to their trespass claim. See Cuzze, 123 Nev. at 603, 172
P.3d at 134. The RTC does •not dispute that the Iliescus owned the property
where the easements and parking lot are located, nor does it assert that it
had permission or paid rent or some form of remuneration to use the
parking lot. The Iliescus' photographs and deposition testimony are
evidence such that a rational trier of fact could find that the RTC trespassed
on the Iliescus' property and return a verdict in the Iliescus' favor."' See
Wood, 121 Nev. at 731, 121 P.3d at 1031.
Below, the district court granted summary judgment as to the
Iliescus' trespass claim by ruling that they had waived their right to pursue
nominal damages—in stipulating to pursue only compensatory damages
relating to their parking lot and punitive damages—and had then failed to
present evidence as to compensatory damages or punitive damages.12 In so
admissible evidence for their claims during the proceedings below,
apparently only because the Iliescus "submitted no declarations or
deposition testimony" in their opposition to the RTC's motion for summary
judgment. The RTC does not cogently argue why any failure on the Iliescus'
part to submit declarations or deposition testimony in opposition to the
RTC's summary judgment motion would be fatal to their claims where there
existed substantial evidence elsewhere in the court file that was presented
for the court to consider regarding trespass, nor does it provide relevant
authority in support of that argument. Therefore, we need not consider it.
See Edwards, 122 Nev. at 330 n.38, 130 P.3d at 1288 n.38.
"Although we reverse summary judgment on the trespass claim, we
note that the damages available to the Iliescus on this claim may be limited,
as the district court has already determined that expert testimony is
required to prove certain damages, and that the Iliescus failed to timely
identify an expert as required pursuant to NRCP 16.1.
' 2We note that the Iliescus have not pursued the dismissal of their
claim for punitive damages on appeal, and therefore, we need not address
the propriety of the district court's dismissal of the same. See Greenlaw v.
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111,
doing, the district court effectively imposed an element of actual damages
onto the trespass claim—an element that has not previously been required
to sustain a trespass action in Nevada.13 See Lied, 94 Nev. at 279, 579 P.2c1
at 173-74; Parkinson, 75 Nev. at 408, 344 P.2d at 678; see also Restatement
(Second) of Torts § 158 (Am. Law Inst. 1965) ("One is subject to liability to
another for trespass, irrespective of whether fhe or she:I thereby causes harm
to any legally protected interest of the other, if [he or she] intentionally (a)
enters land in the possession of the other, or causes a thing or a third person
to do so, or (b) remains on the land, or (c) fails to remove from the land a
thing which he is under a duty to remove." (emphasis added)).
Further, in lieu of compensatory damages, nominal damages
may still be awarded. Nominal damages are "awarded by default until the
plaintiff establishes entitlement to some other forrn of damages, such as
compensatory . . . damages." Uzuegbunam v. Preczewski, 592 U.S. 7141 S. Ct. 792, 801 (2021). Indeed, as the United States Supreme Court
recently recognized in Uzuegbunam, "the prevailing rule, 'well established'
at common law, was 'that a party whose rights are invaded can always
recover nominal damages without furnishing any evidence of actual
damages." Id. at , 141 S. Ct. at 800 (emphasis added) (internal citations
United States, 554 U.S. 237, 243 (2008) ("[I]n both civil and criminal cases,
in the first instance and on appeal, we follow the principle of party
presentation. That is, we rely on the parties to frame the issues for
decisions and assign to courts the role of neutral arbiter of matters the
parties present.").
"The RTC does not argue on appeal that a plaintiff must prove
damages as an element of trespass and therefore we do not further address
this issue. See Powell v. Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161 n.3,
252 P.3d 668, 672 n.3 (2011) (providing that issues not raised on appeal are
deemed waived).
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omitted). Consistent with this approach, the Nevada appellate courts have
long recognized that nominal damages are a proper remedy for trespass, in
cases where actual damages cannot be proven. See Parkinson, 75 Nev. at
408, 344 P.2d at 678; Droge, 136 Nev. at 312 n.17, 468 P.3d at 880 n.17, see
also Uzuegbunam, 592 U.S. at , 141 S. Ct. at 798 (discussing the
importance of nominal damages to claims for trespass).
Given the relationship between nominal and compensatory
damages, and the purpose behind an award of nominal damages, we
conclude that, by preserving their claim to compensatory damages, the
Theseus also preserved nominal damages, as these damages are available to
remedy a trespass where compensatory damages are unavailable or
unproven. Thus, the district court erred in determining that the Iliescus
waived their right to recover nominal damages for trespass.14 Further,
proving damages is particularly unnecessary in this case because the RTC
had been granted perpetual easements on the Theseus' property and the
Iliescus were seeking injunctive relief, an appropriate remedy for the threat
of continuing trespass.'5 See S.O.C., Inc., 117 Nev. at 416, 23 P.3d at 251.
14The parties disagree as to whether the Iliescus, by stipulation or
otherwise, waived their right to pursue nominal damages in this case
because nominal damages were not specifically preserved in the stipulation.
However, neither was a claim for nominal damages specifically waived.
Further, the parties did not stipulate to dismissal of the Iliescus' trespass
claim, nor any damages specifically related to that claim. As explained
above, the Iliescus preserved their claim to nominal damages by preserving
their claim to compensatory damages and because nominal damages are
inherently available for certain types of claims such as trespass.
15As explained above, while the district court correctly dismissed the
Iliescus' separate cause of action for injunctive relief, they are nevertheless
permitted to seek injunctive relief as a remedy.
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101 19-17H
Accordingly, the district court erred in granting summary
judgment in favor of the RTC as to the Iliescus' trespass claim, and thus we
reverse the grant of summary judgment on this claim and remand for
further proceedings. To the extent that the district court's order granting
summary judgment in favor of the RTC as to the Iliescus' request for
declaratory relief was predicated on its ruling relating to their trespass
claim, that ruling is likewise reversed and remanded for further
proceedings.
CONCLUSION
The district court did not err in dismissing the Iliescus' waste
claim because the RTC had no possessory interest as to the Iliescus' parking
lot. The court also did not err in dismissing their injunctive relief claim to
the extent that it was pleaded as a cause of action. Additionally, the court
did not err in granting summary judgrnent in favor of the RTC as to the
Iliescus' contract-based claims.
The district court, however, erred in granting summary
judgment as to the Iliescus' trespass and declaratory relief claims. Because
we reverse the district court's order granting summary judgment in favor of
the RTC as to these claims, the RTC might not •be the prevailing party and
the district court's order awarding it attorney fees and costs may no longer
be appropriate under NRS 18.010(2)(b) and NRS 18.020. That order,
therefore, is necessarily vacated. See Cain v. Price, 134 Nev. 193, 198, 415
P.3d 25, 30 (2018) (explaining that where a district court's order granting
summary judgment is reversed, it is no longer appropriate to consider the
respondents the prevailing party, and an award of attorney fees is
inappropriate). Consistent with this opinion, we reverse and remand for
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further proceedings as to the Iliescus' trespass and declaratory relief claims,
and if necessary, to determine if injunctive relief is appropriate.'"
, C • J•
Gibbons
We concur:
Tao
it oglooamesegsam
J.
Bulla
Insofar as the parties have raised arguments that are not
16
specifically addressed in this opinion, we have considered the same and
conclude that they either do not present a basis for relief or need not be
reached given the disposition of this appeal.
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