author: By the Court, PARRAGUIRRE, J.:

text:
    James A. BOESIGER, an Individual; and Maria S. Boesiger, an Individual, Appellants, v. DESERT APPRAISALS, LLC, a Nevada Limited Liability Company; and Travis T. Gliko, an Individual, Respondents.
    No. 75198
    Supreme Court of Nevada.
    FILED JULY 03, 2019
    David J. Winterton & Associates, Ltd., and David J. Winterton and Meghan H. Shigemitsu, Las Vegas, for Appellants.
    Lipson Neilson P.C. and Joseph Garin and Eric N. Tran, Las Vegas, for Respondents.
    BEFORE PICKERING, PARRAGUIRRE and CADISH, JJ.
   By the Court, PARRAGUIRRE, J.:

In this appeal, we are asked to review a district court order granting summary judgment in favor of respondents, a real estate appraisal company and a professional real estate appraiser. After purchasing a home, appellants alleged respondents negligently relied on inaccurate information to calculate the home's size and market value, resulting in a misleading appraisal report and an inflated purchase price, and preventing appellants from thereafter refinancing their home loan.

As set forth herein, we affirm the district court's order granting summary judgment for respondents. We also take this opportunity to emphasize the important role of summary judgment in promoting sound judicial economy. Courts should not hesitate to discourage meritless litigation in instances where, as here, claims are deficient of evidentiary support and are based on little more than the complainants' conclusory allegations and accusations.

FACTUAL AND PROCEDURAL BACKGROUND

In September 2013, appellants James and Maria Boesiger purchased a home in Las Vegas for $337,000, financing most of the purchase price through a mortgage on the property. The mortgage company contracted with respondent Desert Appraisals, LLC, to perform an appraisal on the property, which the appraiser, respondent Travis Gliko, valued at $340,000, with 3,002 square feet of gross living area. The appraisal report explicitly noted a discrepancy between the square footage reported by the county assessor's office, which apparently estimated 3,553 square feet, and the square footage as estimated by the appraiser, explaining that the added footage appeared to be based on outdated information from when the garage was used as a model home office. After unsuccessfully attempting to refinance their home loan approximately one year later, appellants purportedly became aware of the discrepancy in square footage. Appellants thereafter filed suit against respondents, asserting claims for professional negligence, negligent misrepresentation, breach of the statutory duty to disclose a material fact, and breach of contract as third-party beneficiaries. Specifically, appellants alleged respondents negligently relied on the incorrect assessor's data for the property, which resulted in an overvalued appraisal and caused appellants to purchase the home at an inflated purchase price.

Appellants filed their complaint in October 2015. After initially designating an expert appraiser to testify, appellants withdrew the expert witness after failing to comply with NRCP 16.1(a)(2) 's requirements for designating an expert witness. More than two years after appellants filed their complaint, respondents moved for summary judgment, noting appellants' failure to designate an expert witness to establish the professional standard of care for real estate appraisers, and arguing that this failure was fatal to appellants' complaint. Other than the depositions of Maria Boesiger and Gliko, the record does not indicate appellants proffered any evidence supporting their claim. Although appellants identified various individuals who might testify in support of their challenge to the property appraisal, as well as potentially discoverable documents, by December 2017, no such testimony or evidence had been provided, other than the two depositions, the 2013 purchase agreement, and the disputed property appraisal itself.

The district court granted summary judgment for respondents. In rejecting appellants' professional negligence claim, the court concluded appellants failed to establish the appropriate professional standard of care by failing to designate an expert witness to testify as to industry standards governing professional appraisers. The district court also concluded that appellants' claims for negligent misrepresentation and breach of duty to disclose failed in that they were derivative of appellants' deficient professional negligence claim. Finally, the district court determined that appellants failed to show that they were clearly intended third-party beneficiaries of the appraisal contract between respondents and the mortgage company, which had ordered the appraisal.

DISCUSSION

Summary judgment is an important procedural tool by which "factually insufficient claims or defenses [may] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources."

Celotex Corp. v Catrett , 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). We review a district court order granting summary judgment de novo, viewing all evidence in a light most favorable to the nonmoving party. Wood v. Safeway , Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Pursuant to NRCP 56, a party may properly move for summary judgment where the party establishes "that there is no genuine dispute as to any material fact" and the party is entitled to judgment as a matter of law. It is well settled that summary judgment should only be granted "when the pleadings, depositions, answers to interrogatories, admissions, and affidavits ... that are properly before the court demonstrate that no genuine issue of material fact exists." Wood , 121 Nev. at 731, 121 P.3d at 1031. However, to survive summary judgment, the nonmoving party must "do more than simply show that there is some metaphysical doubt as to the operative facts," relying upon more than general allegations and conclusions set forth in the pleadings, and must present specific facts demonstrating the existence of a genuine issue. Id. at 732, 121 P.3d at 1031 (internal quotation marks omitted).

Professional negligence-based claims

The district court rejected appellants' claim for professional negligence, granting summary judgment for respondents based on appellants' failure to establish the standard of care governing the performance of an appraisal. To assert a claim for professional negligence, a party must show "(1) [a] duty to use such skill, prudence, and diligence as other members of the profession commonly possess and exercise; (2) breach of that duty; (3)... proximate causal connection between the negligent conduct and resulting injury; and (4) actual loss or damage resulting from the professional's negligence." Morgano v. Smith , 110 Nev. 1025, 1028 n.2, 879 P.2d 735, 737 n.2 (1994). Generally, where an alleged harm involves conduct that is not "within the common knowledge of laypersons," the applicable standard of care "must be determined by expert testimony." Daniel, Mann , Johnson & Mendenhall v. Hilton Hotels Corp., 98 Nev. 113, 115, 642 P.2d 1086, 1087 (1982).

As made clear in their pleadings below, appellants complained that respondents failed to exercise the particular level of professional care established by the appraisal industry. The appraisal report specifies that the performance of the appraisal was subject to the Uniform Standards of Professional Appraisal Practice and indicates that the sales comparison approach to property valuation was used to calculate the home's value. While a layperson may be generally familiar with the concept of a home appraisal prior to purchase, there can be little question that the specific standards governing the performance of a real estate appraiser, and the various approaches used within the profession to calculate property values, are not within the common knowledge of the average layperson. Hence, expert testimony is typically required to establish the standard of care governing the performance of a real estate appraisal. See Crawford v. Signet Bank , 179 F.3d 926, 929 (D.C. Cir. 1999) ; Brown v. Interbay Funding, LLC , 417 F. Supp. 2d 573, 579 (D. Del. 2006) ; see also State Bd. of Equalization v. Bakst , 122 Nev. 1403, 1411-12, 148 P.3d 717, 722-23 (2006) (discussing the complexities of the sales comparison approach to property valuation, noting "valuation of property is an illusory matter upon which experts hold differences of opinion" (internal quotation marks omitted)).

Appellants initially designated a professional appraiser as an expert witness, but the expert was later withdrawn and was not subsequently replaced. Despite initially designating an expert witness, appellants now argue that expert testimony is unnecessary to establish the professional standard of care governing real estate appraisals. Appellants, however, have offered no authority to support this proposition and base their argument on an incorrect interpretation of caselaw. We are not persuaded that the professional standards governing the appraisal industry are within the common knowledge of the average layperson. Accordingly, we hold the district court correctly concluded that appellants failed to provide evidence necessary to establish the first element of their claim for professional negligence.

Even if appellants had succeeded on the first element of their professional negligence claim, they utterly failed to provide any evidence that respondents breached a duty of care. The record includes no evidence to indicate the appraiser misrepresented the property's value or condition. The only documentary evidence in the record to support appellants' claim regarding a discrepancy between the appraisal report and the county assessor's data is the report itself, which, in fact, undermines appellants' claim in that it clearly documented the appraiser's rejection of the assessor's information. The report expressly notes the assessor's estimate of 3,553 square feet, confirms the appraiser's rejection of that estimate, and states the property was appraised at 3,002 square feet. To the extent appellants aver respondents relied on an incorrect home model or sales of homes that were not comparable to the property they purchased, appellants have failed entirely to substantiate these claims as well, relying exclusively on Maria Boesiger's deposition testimony and her unsubstantiated opinions therein.

Simply put, the evidence in the record before us is insufficient to demonstrate that any "genuine issue" of fact exists, such that "a reasonable jury could return a verdict for the non-moving party." Posadas v . City of Reno, 109 Nev. 448, 452, 851 P.2d 438, 441-42 (1993) (emphasis added). Having reviewed Maria Boesiger's deposition, we note that the factual circumstances surrounding the home purchase render appellants' claims particularly disingenuous. Maria testified that she became a licensed real estate salesperson in Nevada shortly before she and her husband purchased the property, and that she came to be interested in the home because it was listed for sale by the real estate company for which she was working after obtaining her license. Maria also testified she personally participated in efforts to sell the very home appellants now contend was negligently appraised, and that she co-hosted an open house with her supervisor, who would ultimately serve as appellants' agent in the transaction. Yet, in spite of Maria's admitted training and licensure as a Nevada real estate professional, and her firsthand knowledge of and direct participation in efforts to sell the property, appellants maintain that they were misled by a faulty appraisal report and were somehow in the dark as to the property's actual square footage or market value when they purchased the home. We are not persuaded that a reasonable jury could conclude, based on this limited evidence, that a licensed real estate salesperson could participate in efforts to market and sell a home, later decide to purchase it, and, at the time of purchase, be unaware of the property's actual size and value.

Further, reviewing the minimal evidence in the record before us, we think it no stretch at all to characterize appellants' claims as implausible, at best, given the utter lack of any evidence in the record to support their allegation that respondent was negligent in completing the property appraisal. Appellants failed to provide an expert that could corroborate the allegation that the appraisal was deficient, and the report itself clearly explained that the assessor's data was inaccurate and was not used in the appraisal's valuation, despite appellants' claims otherwise. Indeed, appellants failed to even provide documentation of a discrepancy between the property's actual square footage and data purportedly listed by the county assessor. Were it not for the challenged report itself, in which Gliko identified, explained, and rejected the assessor's data, the record would be entirely devoid of any evidence of such a discrepancy. Simply put, appellants failed in the most basic respects to substantiate their claims, opting instead to proffer little more than their own speculation and conjecture. In light of the parties' lackluster attempt to support their complaint with sufficient evidence, we think it warranted here to observe that trial courts should not be reluctant in dispensing with such claims, as they are instructive of the type of litigation that summary judgment is meant to obviate.

Breach of contract claim

The district court also correctly concluded appellants lacked standing to enforce the appraisal contract as third-party beneficiaries. To assert standing as a third-party beneficiary to a contract, a plaintiff must show (1) a clear intent to benefit the third party, and (2) the third party's foreseeable reliance on the agreement. Lipshie v. Tracy Inv. Co ., 93 Nev. 370, 379, 566 P.2d 819, 824-25 (1977). Here, the appraisal report, by its express terms, explicitly identified the lender as the sole intended beneficiary of the appraisal and provided that no other beneficiary was intended. While the report also acknowledged that appellants were entitled to rely thereupon as part of the purchase transaction, this provision alone does not indicate clear intent sufficient to confer third-party beneficiary rights. The same clause entitling appellants to rely on the report also identified "mortgage insurers, government sponsored enterprises, and other secondary market participants" as parties entitled to rely on the appraisal. We cannot conclude that such generic terms indicate a clear intent to confer third-party contract rights to such a broad class of unnamed entities. See Canfora v . Coast Hotels & Casinos, Inc. , 121 Nev. 771, 779, 121 P.3d 599, 604-05 (2005) ("Whether an individual is an intended third-party beneficiary ... depends on the parties' intent, gleaned from reading the contract as a whole in light of the circumstances under which it was entered." (internal quotation marks omitted)). Even assuming, arguendo, that appellants had succeeded in establishing their status as third-party beneficiaries, they proffered no evidence sufficient to show that respondents breached any duty owed to them as such.

Two years after filing their complaint, appellants failed to provide a shred of evidence to meaningfully substantiate their claims, just repeated allegations of negligent performance and misrepresentations on the part of the appraiser. Appellants' only serious attempt to substantiate their allegations appears to be the abandoned designation of a professional appraiser as an expert witness. Aside from the challenged appraisal report itself, appellants ultimately relied exclusively on deposition testimony, alleging respondents engaged in negligent conduct and made misrepresentations based on inaccurate data. We conclude such bare and unsubstantiated allegations, without more, are wholly insufficient to sustain appellants' claims. We also emphasize that in instances such as this, where an action is brought with practically no evidentiary basis to support it, summary judgment can be a valuable tool to discourage protracted and meritless litigation of factually insufficient claims. In dispensing with frivolous actions through summary judgment, courts promote the important policy objectives of sound judicial economy and enhance the judiciary's capacity to effectively and efficiently adjudicate legitimate claims.

In light of the foregoing, we affirm the district court order granting summary judgment.

We concur:

Pickering, J.

Cadish, J.

      To support their proposition that expert testimony is unnecessary to establish the standard of care in a professional negligence action, appellants misapply our decision in Egan v. Chambers , 129 Nev. 239, 240-41, 299 P.3d 364, 365 (2013). Our holding in Egan addressed a specific question concerning NRS 41A.071 's affidavit-of-merit pleading requirements in medical malpractice actions and is inapposite to this appeal.

      In their opening brief, appellants also challenge the district court's post-judgment award of attorney fees. Because appellants did not appeal from any such post-judgment order, we do not address appellants' argument as to the alleged award of attorney fees. See Winston Prods. Co. v. DeBoer , 122 Nev. 517, 525, 134 P.3d 726, 731 (2006) ("Like an appeal from a final judgment, an appeal from an order awarding attorney fees and costs must be filed no more than 30 days from the date that notice of the order's entry is served."); see also NRAP 4(a)(1), 3(c)(1)(B).


source: Caselaw Access Project

author: By the Court, PICKERING, J.:

license: Public Domain

text:
    U.S. BANK, NATIONAL ASSOCIATION ND, a National Association, Appellant, v. RESOURCES GROUP, LLC, Respondent.
    No. 74575
    Supreme Court of Nevada.
    FILED JULY 03, 2019
    Eglet Adams and Thomas Neal Beckom, Las Vegas; McCarthy & Holthus, LLP, and Kristin A. Schuler-Hintz, Las Vegas, for Appellant.
    Law Offices of Michael F. Bohn, Ltd., and Michael F. Bohn, Henderson, for Respondent.
    BEFORE PICKERING, PARRAGUIRRE and CADISH, JJ.
   By the Court, PICKERING, J.:

This is a homeowners' association (HOA) lien foreclosure dispute. The HOA did not give the first deed of trust holder the notice of default Nevada law requires to foreclose a superpriority lien. Despite this failure, the district court held that the lien foreclosure sale extinguished the first deed of trust and quieted title in favor of the foreclosure sale buyer's successor. The district court found the first deed of trust holder was not entitled to notice at the address specified in the deed of trust, which was error. We vacate and remand for the district court to decide whether, given this notice defect, the first deed of trust holder deserves relief from the sale.

I.

Appellant U.S. Bank held a note secured by a publicly recorded first deed of trust on a home in a Nevada common interest community. The homeowner/borrower defaulted on his HOA dues, whereupon the HOA initiated lien foreclosure proceedings under NRS Chapter 116. The HOA's agent, Alessi & Koenig, gave the homeowner proper notice of default and notice of sale and attempted to give U.S. Bank notice of default and notice of sale as well. But Alessi & Koenig misread U.S. Bank's deed of trust and sent the notice of default to another, unaffiliated entity, which evidently did not forward it to U.S. Bank. As a result, U.S. Bank did not receive the notice of default. Alessi & Koenig's records suggest it mailed the notice of sale, as distinguished from the notice of default, to U.S. Bank at the address specified for it in the deed of trust, but U.S. Bank's files do not show that it received either the notice of default or the notice of sale.

Alessi & Koenig set the HOA lien foreclosure sale to occur 33 days after it recorded the notice of sale. When no one appeared at the sale, Alessi & Koenig orally continued it for approximately 60 days. Neither the homeowner nor U.S. Bank attended the rescheduled sale. Respondent Resources Group, LLC's principal, Iyad Eddie Haddad, acquired the property at the rescheduled sale for $5,331. The district court did not make a finding as to the property's fair market value, but the record suggests the bid price represented 10% to 15% of the property's fair market value. Haddad initially took title in the name of a trust he had created to acquire this particular property, then had the trust transfer the property to Resources Group.

The homeowner passed away, and his estate defaulted on the loan the U.S. Bank deed of trust secured. Several months after the HOA lien foreclosure sale, U.S. Bank commenced judicial foreclosure proceedings against the homeowner's estate on its deed of trust. Later, after it discovered the HOA sale, U.S. Bank added Resources Group as a defendant. Asserting that the HOA lien foreclosure sale had extinguished U.S. Bank's first deed of trust, Resources Group answered and counterclaimed for a judgment quieting title in itself.

The district court conducted a bench trial and ruled for Resources Group. It held that the HOA lien foreclosure sale extinguished U.S. Bank's deed of trust, leaving U.S. Bank nothing to judicially foreclose. The district court reasoned that U.S. Bank was not entitled to notice of default because it had not requested it from the HOA and that, alternatively, Alessi & Koenig gave adequate notice, even though the notice did not reach U.S. Bank. U.S. Bank appeals.

II.

U.S. Bank presses us to invalidate the HOA foreclosure sale because the person conducting the sale, Alessi & Koenig, failed to mail it the notice of default at the address specified for it in its deed of trust as NRS 116.31168 and NRS 107.090 require. U.S. Bank further argues that the notice defect renders the sale void under Title Insurance & Trust Co. v. Chicago Title Insurance Co ., 97 Nev. 523, 634 P.2d 1216 (1981), or at least voidable under Golden v. Tomiyasu , 79 Nev. 503, 387 P.2d 989 (1963), and its progeny. We review the district court's legal conclusions de novo but give deference to its factual findings unless they are clearly erroneous or not supported by substantial evidence. Wells Fargo Bank, N.A. v. Radecki, 134 Nev. Adv. Op. 74, 426 P.3d 593, 596 (2018).

A.

1.

The district court decided this case before we decided SFR Investments Pool 1, LLC v. Bank of New York Mellon , 134 Nev. Adv. Op. 58, 422 P.3d 1248 (2018) ( SFR 3 ). NRS Chapter 116 protects homeowners by requiring a foreclosing HOA to provide the homeowner a 90-day notice of default, followed by a separate notice of sale, before an HOA lien foreclosure sale can proceed. NRS 116.31162(1)(c) ; NRS 116.311635. In SFR 3 , this court considered a certified question from Nevada's federal district court asking whether these statutory protections extend to a first deed of trust holder who fails to request notices of default and of sale from the HOA. 422 P.3d at 1249. We answered the certified question "yes." Id.

NRS 116.3116(2)(b) establishes a split-lien scheme that subordinates the first deed of trust to the superpriority portion of an HOA's lien. SFR Invs. Pool 1, LLC v. U.S . Bank, N.A., 130 Nev. 742, 745, 334 P.3d 408, 411 (2014). NRS 116.31168 incorporates the notice requirements of NRS 107.090(3)(b) and (4), which mandate that notice of default and notice of sale go to "[e]ach ... person with an interest whose interest or claimed interest is subordinate" to the lien being foreclosed, with or without a request therefor. Taken together, these statutes require an HOA seeking to foreclose a superpriority lien to send the holder of a recorded first deed of trust notices of default and of sale, even though the deed of trust holder has not formally requested them. SFR 3, 422 P.3d at 1251-53. Under SFR 3 , the district court erred when it ruled that U.S. Bank was not entitled to notice of default because it had not requested it.

2.

When this court answers a certified question from a federal court, its "role is limited to answering the question[ ] of law posed to it." In re Fontainebleau Las Vegas Holdings, 127 Nev. 941, 955, 267 P.3d 786, 794 (2011). "[T]he certifying court retains the duty to determine the facts and to apply the law provided by the answering court to those facts." Id. The certification order in SFR 3 only asked whether NRS 116.31168 and NRS 107.090 require an HOA to provide notice of default and notice of sale to a first deed of trust holder absent a formal request therefor. SFR 3 , 134 Nev. Adv. Op. 59 n.5, 422 P.3d 1253 n.5. The order did not include any facts suggesting notice had been attempted but failed. As a result, SFR 3 did not consider the mechanics of how, without a formal request for notice, a foreclosing HOA should determine the address to which to send notice.

As SFR 3 holds, NRS 116.31168(1) requires an HOA foreclosure sale to be conducted, insofar as a first deed of trust holder is concerned, "as if a deed of trust were being foreclosed." If U.S. Bank had filed a request for notices of default and sale under NRS 107.090(2), it would have been entitled to receive notice of default at the address specified in the request but it did not. Absent specific request, when a deed of trust is foreclosed, the notices of default and sale must be mailed to subordinate lienholders in a manner consistent with NRS 107.080, which sets forth the procedure for mailing notices to the property owner. See NRS 107.090(1), (3), and (4). In turn, NRS 107.080(3) and (4) (2010) (amended by 2019 Nev. Stat., eh. 238, § 9 (S.B. 382)), require the notice of default to be mailed to the property owner's current address "if known" and the notice of sale to be mailed to the property owners' "last known address."

As noted, U.S. Bank did not file a request for notice. Its publicly recorded deed of trust states that any required notice "shall be given by delivering it or by mailing it by first class mail to the appropriate party's address on page 1." Page 1, paragraph 1 of the deed of trust is entitled "DATE AND PARTIES" and generically lists three parties: "GRANTOR," "TRUSTEE," and "LENDER." For the Lender, it supplies the following name and address:

LENDER:
U.S. Bank National Association ND,
a national banking association organized under
the laws of the United States
4325 17th Avenue SW
Fargo, ND 58103

Paragraph 2 confirms the "Lender," U.S. Bank, is the beneficiary of the deed of trust.

U.S. Bank's deed of trust provided Alessi & Koenig with a "known address" to which to send the notice of default, but Alessi & Koenig did not follow the instructions the deed of trust gave. Instead, Alessi & Koenig mailed the notice of default to a "return to" name and address appearing at the top left of the deed of trust opposite the recorder's stamp. U.S. Bank established through uncontroverted testimony at trial that it was not affiliated with the "return to" entity and did not receive the notice of default.

On this record, the district court clearly erred when it found that Alessi & Koenig gave U.S. Bank adequate notice of default. Since the HOA was foreclosing both the superpriority and subpriority portions of its lien, notice of default needed to go to "the holder of the first security interest as a subordinate interest." SFR 3 , 422 P.3d at 1252. A trustee or other person conducting a foreclosure sale must send notice of default to each person entitled to it at the address the recorded documents provide for that person (or in some instances, if different, their known or last known address). See Title Ins. & Tr ., 97 Nev. at 525-26, 634 P.2d at 1218. To give statutorily compliant notice, Alessi & Koenig needed to send the notice of default to U.S. Bank at the address specified for it in its publicly recorded deed of trust. See Davis v. Beling , 128 Nev. 301, 321, 278 P.3d 501, 515 (2012) (holding that if a contract's language is clear, it will be enforced as written). Confirming the point, Alessi & Koenig had in its file a title report that identified U.S. Bank as the deed of trust beneficiary-and Alessi & Koenig's files show it mailed the notice of sale, as distinguished from the notice of default, to U.S. Bank as Lender at the address listed for it on page 1, paragraph 1 of the deed of trust.

B.

Alessi & Koenig's failure to mail U.S. Bank the notice of default at the address given for it in the recorded deed of trust violated NRS 116.31168 and NRS 107.090(3). U.S. Bank urges this statutory violation automatically voids the sale. As support, U.S. Bank cites Title Insurance & Trust , 97 Nev. at 526-27, 634 P.2d at 1218, which affirmed a district court decision that a foreclosure trustee's failure to give notice of default or notice of sale to the person entitled to receive it rendered the sale void. See 1 Grant S. Nelson & Dale A. Whitman, Real Estate Finance Law § 7:21, at 955 & n.8 (2014) (discussing defects that will render a foreclosure sale void or voidable and collecting cases holding that "a sale was void when ... the mortgagee or trustee did not give statutorily required notice").

More recent cases suggest a notice/prejudice rule that limits Title Insurance & Trust to the since-amended statute, see Miyayama v. Quality Loan Serv. Corp ., No. 2:16-cv-00413-JAD-CWH, 2017 WL 132836, at *5 (D. Nev. Jan. 13, 2017), and extreme facts-the person entitled to notice in Title Insurance & Trust received no pre-sale notice at all , 97 Nev. at 527, 634 P.2d at 1218 -it involved. Thus, in West Sunset 2050 Trust v . Nationstar Mortgage, LLC , 134 Nev., Adv. Op. 47, 420 P.3d 1032, 1035 (2018), we held that the first deed of trust holder's failure to allege prejudice resulting from the HOA's failure to mail notice of default to its assignor "dooms its claim that the defective notice [of default] invalidates the HOA sale." And in Schleining v. Cap One, Inc., 130 Nev. 323, 330-31, 326 P.3d 4, 8-9 (2014), we upheld on an abuse-of-discretion standard a district court's determination that a lender's "substantial compliance" with NRS 107.095 (2009) (amended by 2019 Nev. Stat., ch. 238, § 16 (S.B. 382)), and the guarantor's failure to prove prejudice from the notice defect, excused the lender's failure to provide the guarantor with the notices of default and of sale required by NRS 107.095. Of note, in both Sunset 2050 and Schleining , despite the statutory notice deficiencies, the party complaining about the defective notice came by actual notice of the foreclosure proceedings before the sale occurred. W. Sunset 2050 Tr., 420 P.3d at 1035 (emphasizing that the HOA recorded the notice of default, so the assignee of the original deed of trust beneficiary had constructive notice of the notice of default, and received timely notice of sale); Schleining, 130 Nev. at 330, 326 P.3d at 8-9 (stating that "the district court properly found that Schleining had actual knowledge of the default and the pending foreclosure sale despite the lack of statutory notice").

Absent notice from some other source, failing to mail the statutorily required notice of default deprives the property owner of the minimum grace period the Legislature has mandated to give the deed of trust holder (or the homeowner) time to cure, compromise, or contest the default. See Title Ins. & Tr. , 97 Nev. at 526, 634 P.2d at 1218 (the statutes requiring notice of default and notice of sale reflect the Legislature's judgment that a person facing foreclosure "should have a reasonable opportunity to cure a default or deficiency before the property may be sold"). For the homeowner, the legislatively determined minimum grace period following a notice of default is 90 days, NRS 116.31162 ; for the first deed of trust holder, it is 80 days, see NRS 107.090(3).

At trial, U.S. Bank's collection officer testified that it was the bank's practice, on receiving a Nevada notice of default, to request payoff information and "pay the lien off ... to protect our interest." The loan secured by the U.S. Bank deed of trust included a future advances clause and this witness testified that, had U.S. Bank received notice of default, it would have paid the lien off and charged its borrower. He also denied receiving notice from any other source of the homeowner/borrower's default or the notice of sale that followed. This testimony, if credited, establishes the lack of notice and prejudice needed to void the sale.

The district court made no finding on actual notice or prejudice because of its erroneous findings that statutory notice of default was either unnecessary or acceptable. As we have held, Alessi & Koenig did not comply with the statutory requirement that it serve U.S. Bank with the notice of default, and U.S. Bank may or may not have received the notice of sale. If on remand the district court finds Alessi & Koenig did not substantially comply with NRS 116.31168 and NRS 107.090(3), that U.S. Bank did not receive timely notice by alternative means, and that U.S. Bank suffered prejudice as a result, the district court should determine whether, under NRS 107.080 (2011), it should declare the sale void to the extent it purports to extinguish U.S. Bank's deed of trust. See Nationstar Mortg., LLC v. Sahara Sunrise Homeowners Ass'n , No. 2:15-cv-01597-MMD-NJK, 2019 WL 1233705, at *3 (D. Nev. Mar. 14, 2019) (holding that the foreclosure agent's failure to send a required party the notice of default rendered the foreclosure sale void when evidence demonstrated that the holder of the first deed of trust would have tendered the amount of the superpriority default had it received proper notice), appeal docketed suh nom ., Nationstar Mortg. LLC v. River Glider Ave. Tr., No. 19-15760 (9th Cir. Apr. 16, 2019); Christiana Tr. v. SFR Invs. Pool 1 , LLC, No. 2:16-cv-00684-GMN-CWH, 2018 WL 6603643, at *6 (D. Nev. Dec. 17, 2018) (holding an HOA foreclosure sale void due to the HOA's failure to notice the holder of the first deed of trust), appeal docketed , No. 19-15096 (9th Cir. Jan. 17, 2019). A void sale, in contrast to a voidable sale, defeats the competing title of even a bona fide purchaser for value. Bank of Am., N.A. v . SFR Invs. Pool 1, LLC , 134 Nev. Adv. Op. 72, 427 P.3d 113, 121 (2018), as amended on denial of reh'g (Nov. 13, 2018) ("A party's status as a [bona fide purchaser] is irrelevant when a defect in the foreclosure renders the sale void."); see Real Estate Finance Law , § 7:21, at 953-54.

C.

U.S. Bank has a fallback position: Even if the sale was not void, it was voidable, because the low sale price, notice deficiencies, and other irregularities establish that "the sale was affected by some element of fraud, unfairness, or oppression." Nationstar Mortg., LLC v. Saticoy Bay LLC Series 2227 Shadow Canyon , 133 Nev. 740, 746, 405 P.3d 641, 646 (2017) ; see Shadow Wood Homeowners Ass'n, Inc. v. N.Y. Cmty. Bancorp, Inc., 132 Nev. 49, 56, 366 P.3d 1105, 1110 (2016) ; Golden v. Tomiyasu , 79 Nev. 503, 514, 387 P.2d 989, 995 (1963). Under these cases, "mere inadequacy of price is not in itself sufficient to set aside the foreclosure sale, but it should be considered together with any alleged irregularities in the sales process to determine whether the sale was affected by fraud, unfairness, or oppression." Shadow Canyon , 133 Nev. at 749, 405 P.3d at 648. Though not determinative, "the price/fair-market-value disparity is a relevant consideration because a wide disparity may require less evidence of fraud, unfairness, or oppression to justify setting aside the sale." Id. The relationship is hydraulic: "where the inadequacy is palpable and great, very slight additional evidence of unfairness or irregularity is sufficient to authorize the granting of the relief sought." Id. (quoting Golden, 79 Nev. at 515, 387 P.2d at 995 ).

The district court gave short shrift to U.S. Bank's claim that the sale was voidable under Shadow Canyon , Shadow Wood , and Golden . But its mistaken determination that U.S. Bank did not deserve (or received) statutorily compliant notice of default cramped its analysis. As discussed above, Alessi & Koenig failed to give U.S. Bank statutorily required notice of default. Our caselaw establishes that "irregularities that may rise to the level of fraud, unfairness, or oppression" that will render a sale voidable "include an HOA's failure to mail a deed of trust beneficiary the statutorily required notices ." Shadow Canyon , 133 Nev. at 749 n.11, 405 P.3d at 648 n.11 (emphasis added). While the district court did not determine what the property's fair market value was, the record evidence suggests that the $5,331 bid price fell somewhere between 10% and 15% of its fair market value. The grossly inadequate price, combined with the problems with the notice of default-even assuming U.S. Bank received the notice of sale-presents a classic claim for equitable relief under Shadow Canyon , Shadow Wood , and Golden . (Also concerning, but not addressed by the district court, was the evidence U.S. Bank offered respecting Haddad's attorney-client relationship with one of the lawyers at Alessi & Koenig.)

Resources Group counters that the district court found it was a bona fide purchaser for value (BFP) and that, while a void sale could defeat its title, a voidable sale cannot, defeating U.S. Bank's claim to equitable relief under Shadow Canyon , Shadow Wood , and Golden . See Shadow Wood, 132 Nev. at 63-66, 366 P.3d at 1114-16 (holding that a district court must consider a party's BFP status when balancing the equities in an action to quiet title following an HO A foreclosure sale). A BFP is one who "takes the property for a valuable consideration and without notice of the prior equity, and without notice of facts which upon diligent inquiry would be indicated and from which notice would be imputed to him, if he failed to make such inquiry." Shadow Wood , 132 Nev. at 64, 366 P.3d at 1115 (internal quotation marks and citation omitted). The district court's misapprehension respecting U.S. Bank's entitlement to notice of default affected its decision that Resources Group was a BFP, because it made it unnecessary to consider what Resources Group's principal, Haddad, knew or should have known about the defective notice of default or other sale irregularities. We therefore vacate the district court's finding that Resources Group occupied BFP status.

Despite this, Resources Group urges us to affirm the BFP finding as a matter of law. As support, it points to Haddad's trial testimony that he made no inquiries of Alessi & Koenig about the notices of default and of sale and therefore did not have notice anything was amiss. But this argument proves too much. Haddad's trial testimony also established that he had extensive real estate and foreclosure sale experience, attending "five [foreclosure] sales a week, 52 weeks a year." While Haddad may not have had actual notice that Alessi & Koenig failed to give U.S. Bank proper notice of default, this does not mean he did not have inquiry notice, given his sophistication; the fact the sale had been continued and neither the homeowner nor U.S. Bank nor any other bidders appeared at the rescheduled sale; the allegations respecting his close relationship with Alessi & Koenig; and his acknowledgment in the bankruptcy that followed the sale that title to this property was contested. See Albice , 239 P.3d at 1157 (holding that "[a] purchaser is on notice if he has knowledge of facts sufficient to put an ordinarily prudent man on inquiry and a reasonably diligent inquiry would lead to the discovery of title or sale defects" and deeming it appropriate to "give substantial weight to a purchaser's real estate investment experience when determining whether a purchaser had inquiry notice"). Whether diligent inquiry by Haddad would have revealed the notice defect, or the other deficiencies alleged, are questions of fact for the district court to resolve. See Shadow Wood , 132 Nev. at 65-66, 366 P.3d at 1116.

III.

The district court erred when it rejected U.S. Bank's objection that it did not receive statutorily compliant notice of default. This error affected the other claims in the case. We therefore vacate the partial judgment in favor of Resources Group and remand this case for further proceedings consistent with this opinion.

We concur:

Parraguirre, J.

Cadish, J.

      The references to NRS Chapter 116 are to the pre-2015 version of those statutes, which apply to this dispute. See 2015 Nev. Stat., ch. 266, §§ 1-9, at 1333-49.

      The references in the text are to NRS 107.090 as written before its 2019 amendment. See 2019 Nev. Stat., ch. 238, § 15 (S.B. 382). The 2019 amendments affect the paragraph numbering, not the substance.

      Resources Group argues that U.S. Bank effectively had 90 days because the original sale, which followed the notice of sale by 33 days, was orally continued for 60 days. If U.S. Bank did not receive the notice of sale, this argument is a nonstarter. It also does not address the fact that, assuming U.S. Bank received the notice of sale, the sale was orally continued just 33 days after the first notice U.S. Bank received, which is less than the notice of default grace period the Legislature has established.

      Resources Group does not argue that NRS 116.31166, respecting HOA deed recitals, affects the analysis. The recitals NRS 116.31166 establishes as conclusive do not include recitals respecting service of the notices of default and of sale. And, given Alessi & Koenig's failure to mail the notice of default to U.S. Bank, conclusory recitals attesting to proper notice of default would fail in any event. See Albice v. Premier Mortg. Servs. of Wash., Inc., 157 Wash.App. 912, 239 P.3d 1148, 1154 (2010) ("We are unwilling to accept a trustee's legal conclusions contrary to the actual facts of the foreclosure process as conclusive evidence where an accurate reporting of the facts would have shown the legal conclusions to be incorrect."), aff'd, 174 Wash.2d 560, 276 P.3d 1277 (2012).


author: By the Court, STIGLICH, J.: SILVER, J., dissenting:

text:
    Yesennia Esmeralda AMAYA, Appellant, v. Milton Orlando GUERRERO RIVERA, Respondent.
    No. 75769
    Supreme Court of Nevada.
    FILED JULY 03, 2019
   By the Court, STIGLICH, J.:

Although appellant Yesennia Esmeralda Amaya was granted sole physical custody over her daughter, the district court denied her motion to make the three predicate findings necessary to petition the federal government for Special Immigrant Juvenile (SIJ) status. See 8 U.S.C. § 1101(a)(27)(J) (2012) ; NRS 3.2203. We take this opportunity to clarify that a child custody order can satisfy the first predicate SIJ finding, which requires a person be "appointed" to have custody over a juvenile. We further hold that the second predicate SIJ finding can be made where reunification is not viable with one parent due to abuse, abandonment, neglect, or some similar basis under Nevada law. Because the district court reached the opposite conclusions and also failed to determine whether the third predicate was met, we reverse and remand for further adjudication consistent with this opinion.

BACKGROUND

Amaya gave birth to A.A. in El Salvador in November 2004. A.A.'s father, respondent Milton Orlando Guerrero Rivera, and Amaya were never married and were no longer in a relationship when A.A. was born. A.A. lived with her mother and maternal grandmother in El Salvador until her mother moved to the United States when A.A. was two years old. A.A. then lived with her father until he kicked her out when she was ten years old, and she resumed living with her maternal grandmother. Amaya kept in regular contact with her daughter through A.A.'s maternal grandmother and sent money and clothes for A.A. A.A. recalls poor treatment from her father-alleging both emotional and physical abuse.

When A.A. was 12 years old, she moved to the United States to avoid the harsh realities of her life in El Salvador. Since February 2017, A.A. has lived with her mother, stepfather, and two half siblings in Las Vegas. A.A. does not want to return to El Salvador. In December 2017, Amaya petitioned for sole physical custody of A.A. The district court entered a default against the nonresponsive Guerrero Rivera, granted joint legal custody to both parties and sole physical custody to Amaya, and ordered Guerrero Rivera to pay child support at $100 per month.

Following the district court's default against Guerrero Rivera but before a written order was entered, Amaya filed a motion for SIJ predicate findings. The district court declined to hold a hearing and denied Amaya's request. The district court concluded that it did not appoint Amaya to have custody over A.A. by granting Amaya's petition for custody and that Amaya did not prove that A.A. was unable to reunify with both parents, rather than with just her father. Presumably because the district court concluded Amaya did not satisfy these first two predicate SIJ findings, it did not reach the third. Amaya then filed a motion for reconsideration, which the district court also denied without a hearing.

DISCUSSION

Federal law provides a pathway for undocumented juveniles residing in the United States to acquire lawful permanent residency by obtaining SIJ status under 8 U.S.C. § 1101(a)(27)(J). See 8 C.F.R. § 204.11 (2018). Obtaining SIJ status is a two-step process implicating both state and federal law: first, the applicant must go to state court to obtain a juvenile court order issuing predicate findings, and only after such findings are made can the applicant petition the United States Citizenship and Immigration Services (USCIS) for SIJ status. See Recinos v. Escobar , 473 Mass. 734, 46 N.E.3d 60, 64-65 (2016). The state trial court does not determine whether a petitioner qualifies for SIJ status, but rather provides an evidentiary record for USCIS to review in considering an applicant's petition. See Benitez v. Doe , 193 A.3d 134, 138-39 (D.C. 2018).

The Nevada Legislature enacted NRS 3.2203 in May 2017 to comport with federal law and codify the juvenile courts' existing authority to issue predicate findings for purposes of 8 U.S.C. § 1101(a)(27)(J). See 2017 Nev. Stat., ch. 212, Legislative Counsel's Digest, at 1146-47; Hearing on A.B. 142 Before the Assembly Judiciary Comm., 79th Leg. (Nev., March 8, 2017) (statement of Assemblyman Edgar Flores). Under the SIJ statutes, for an undocumented juvenile to be eligible to petition the USCIS, the state court's predicate findings must establish that (1) the juvenile is dependent on a juvenile court, the juvenile has been placed under the custody of a state agency or department, or the juvenile has been placed under the custody of an individual appointed by the court (dependency or custody prong); (2) due to abandonment, abuse, neglect, or some comparable basis under state law, the juvenile's reunification with one or both parents is not viable (reunification prong); and (3) it is not in the juvenile's best interest to be returned to the country of the juvenile's origin (best interest prong). See 8 U.S.C. § 1101(a)(27)(J) ; NRS 3.2203(3). We review the interpretation of these statutes de novo. Int'l Game Tech ., Inc. v. Second Judicial Dist. Court , 124 Nev. 193, 198, 179 P.3d 556, 559 (2008).

A child custody order satisfies the dependency or custody prong for SIJ predicate findings

First, Amaya challenges the district court's conclusion that the district court did not place A.A. under her custody in granting Amaya's petition for custody, In assessing the dependency or custody prong, the district court determines whether "[t]he child has been declared dependent on the court or has been legally committed to, or placed under the custody of, a state agency or department or a person appointed by the court[.]" NRS 3.2203(3)(a). Under Nevada law, the district court's order granting Amaya's petition for physical custody over A.A. constitutes a court determination that placed A.A. under Amaya's custody. See NRS 125A.045(1) (providing that an order determining a child's physical custody is a "[c]hild custody determination"). We conclude that an order determining physical custody of a child satisfies the dependency or custody prong for SIJ predicate findings.

Showing that reunification with one parent is not viable satisfies the reunification prong for SIJ predicate findings

Next, Amaya argues the district court erred in concluding the reunification prong required Amaya to demonstrate A.A. could not reunify with both parents. Amaya contends the plain language that "[t]he reunification of the child with one or both of [the juvenile's] parents was determined not to be viable" encompasses two scenarios: (1) reunification is not viable with one parent, or (2) reunification is not viable with both parents.

The district court did not explicitly rule as to this prong but denied Amaya's request, in part, because she could not show that reunification with both parents was not viable. In reaching this conclusion, the district court misreads this court's unpublished order in In re Guardianship of D.S.M ., Docket No. 72820 (Order of Affirmance, March 15, 2018). In D.S.M. , this court affirmed the district court's denial of a motion for SIJ findings because the appellant, D.S.M.'s aunt, did not show that D.S.M. was unable to reunify with his father due to abandonment or neglect where reunification was not possible because of the father's murder. Id. There, the district court had also determined that reunification with the mother was viable, a finding that D.S.M. did not challenge. Id. Accordingly, the appellant had not shown that reunification was not viable within the meaning of NRS 3.2203 with even one parent, and thus D.S.M. is distinguishable from the underlying facts here and, moreover, does not suggest that the reunification prong requires showing that reunification is not viable with both parents.

We conclude the plain language of "one or both of [the juvenile's] parents" is clear-the use of a disjunctive "or" signals the reunification prong is met where the juvenile cannot reunify with one parent or with both parents. In approving of one-parent SIJ cases, we join the majority of states that have considered this issue. See, e.g., Eddie E. v. Superior Court , 234 Cal.App.4th 319, 183 Cal. Rptr. 3d 773, 779-80 (2015) (noting the significance of the disjunctive "or" in "1 or both" language in 8 U.S.C. § 1101(a)(27)(J) ); E.P.L . v. J.L.-A ., 190 A.3d 1002, 1007 (D.C. 2018) ("[T]he [SIJ] statute only requires proof of abandonment by one parent."); In re Estate of Nina L ., 397 Ill.Dec. 279, 41 N.E.3d 930, 938 (2015) ("Use of the disjunctive indicates that abuse, neglect or abandonment by one parent is sufficient to support the predicate finding."); Marcelina M.-G. , 973 N.Y.S.2d at 721-24 (holding the reunification prong was met where reunification with a child's father was not viable due to abuse, though her mother retained custody). Additionally, this approach is in harmony with federal policy. See, e.g., 6 U.S. Citizenship & Immigr. Servs., Dep't of Homeland Sec., Policy Manual pt. J, ch. 2(D)(1), https://www.uscis.gov/policy-manual/volume-6-part-j-chapter-2 (last visited May 28, 2019) ("Placing the petitioner 'under the custody of a person requires physical custody. A qualifying court-appointed custodial placement could be with one parent, if reunification with the other parent is found to be not viable due to that parent's abuse, neglect, or abandonment of the petitioner."). The district court thus erred when it declined to consider whether reunification with A.A.'s father was viable after concluding that reunification with A.A.'s mother was viable.

Accordingly, we reverse the district court's custody order insofar as the court denied Amaya's motion for SIJ predicate findings, and we remand this case to the district court for further proceedings consistent with this opinion.

I concur:

Hardesty, J.

SILVER, J., dissenting:

To pursue Special Immigrant Juvenile (SIJ) status, a child must first petition a state juvenile court to issue an order making special findings of fact that the child is dependent upon the court or legally committed to a court-appointed individual. In re Marisol N.H ., 115 A.D.3d 185, 979 N.Y.S.2d 643, 645 (2014). A state court must thereafter make findings that reunification with one or both of the parents is not viable and that it is not in the child's best interest to return to his or her home country. Id. Once a state court has issued the predicate findings, the child may petition the federal government for SIJ status. Id. The fact that a child has one fit parent available to care for him or her does not, by itself, preclude the issuance of special findings under the SIJ statute. Id. at 645-48. "[I]t is entirely consistent with the legislative aim of the [SIJ] statute to consider the plight the child would face if returned to his or her native country"; therefore a child may be eligible for SIJ status where reunification with one parent is not viable and it is in the child's best interest to not return to his or her home country. Id. (concluding a family court erred by dismissing the children's petitions for the appointment of their mother as their guardian in order to pursue SIJ status, because a parent can be named as the guardian of his or her child, and the family court had refused to conduct a hearing on whether granting the mother's guardianship petition and potentially enabling the children to seek legal status in the U.S. was in the children's best interest).

In Nevada, NRS 3.2203 specifically details when a district court must make findings pursuant to the SIJ statutes: "during a proceeding held pursuant to chapter 62B, 125, 159, 159A or 432B of NRS." NRS 3.2203(2). If a statute is clear and unambiguous, we do not look beyond its plain language, and we strive to give effect to the plain meaning of its words and phrases. Davis v. Beling, 128 Nev. 301, 311, 278 P.3d 501, 508-09 (2012). Here, the statute clearly applies only to proceedings held pursuant to NRS Chapters 62B (Juvenile Court Proceedings), 125 (Dissolution of Marriage), 159 (Guardianship of Adults), 159A (Guardianship of Minors), or 432B (Protection of Children From Abuse and Neglect). By enumerating specific chapters and subchapters, yet omitting NRS Chapter 125C (Custody and Visitation), the Legislature placed NRS Chapter 125C child custody proceedings outside the scope of NRS 3.2203. See Antonin Scalia & Bryan A. Garner , Reading Law: The Interpretation of Legal Texts 107-11 (2012) (addressing the negative-implication canon); cf NRS 3.223 (specifically providing that the family court has jurisdiction over proceedings brought under NRS Chapter 125C, in addition to 125, 159A, 432B, and other delineated statutes).

Not only is NRS 3.2203(2) clear in this regard, but subsection 3 of the statute, which requires the child to have been placed under the custody of a state agency, department, or person "appointed by the court," likewise does not create ambiguity. Importantly, the "appointed" language relates back to the statutes enumerated earlier in that same subsection. NRS 3.2203(3) ("A person may include in a petition filed or motion made pursuant to chapter 62B, 125, 159, 159A or 432B of NRS a request that the court make the ... finding[ ] ... [that] [t]he child had been ... placed under the custody o f ... a person appointed by the court." (emphasis added)); cf State v . Plunkett , 134 Nev. Adv. Op. 88, 429 P.3d 936, 938-39 (2018) (addressing aider and abettor liability under NRS 212.165(4) and considering other subsections of the same statute in interpreting the statute's plain language). Accordingly, NRS 3.2203(3) when read as a whole is clear that for purposes of SIJ proceedings, the "person appointed by the court" must be appointed in a proceeding under one of those chapters enumerated earlier in the statute. Thus, the plain wording of NRS 3.2203 does not encompass an NRS Chapter 125C proceeding.

Instead of filing under one of the chapters enumerated in the statute, Amaya petitioned the district court under NRS Chapter 125C. Yet, NRS Chapter 125C is specifically excluded from NRS 3.2203, and the plain language of NRS 3.2203 does not mandate that the district court make findings for purposes of the SIJ statutes. Because Amaya petitioned the district court pursuant to NRS Chapter 125C, instead of petitioning the juvenile court for guardianship pursuant to NRS Chapter 159A, I agree with the district court here. The district court was not required to make specific findings because pursuant to NRS 3.2203, the child had not been "placed under the custody o f ... a person appointed by the court" in either temporary or permanent guardianship proceedings, which seems to be what Amaya really desired.

However, I believe nothing precludes Amaya from petitioning for guardianship pursuant to NRS Chapter 159A and thereafter seeking special findings, especially where such a request is unopposed as it was below. Amaya's desire for "specific findings" for SIJ status by the district court was thwarted, in my view, because she used the wrong vehicle to obtain them. Because this case involved a default in a child custody proceeding filed under NRS Chapter 125C, NRS 3.2203 is not implicated. Therefore, I cannot say that under these particular facts the district court abused its discretion and should be reversed for failing to make the specific findings. Further, nothing would preclude Amaya from obtaining her desired result by petitioning again under a different statute encompassed by NRS 3.2203 even if we were to affirm the district court in this case. Accordingly, I respectfully dissent.

      Guerrero Rivera did not file any answering brief in or otherwise respond to this fast-track appeal.

      We note both Amaya and the district court refer to Assembly Bill 142, the bill that enacted NRS 3.2203 and went into effect in October 2017, before Amaya filed the underlying action. See 2017 Nev. Stat., ch. 212, § 1, at 1147. We apply NRS 3.2203 here.

      "Juvenile court" is defined under federal law as "a court located in the United States having jurisdiction under State law to make judicial determinations about the custody and care of juveniles." 8 C.F.R. § 204.11(a). A juvenile is a person who is under 21 years old and unmarried at the time of petitioning for SIJ. 8 C.F.R. § 204.11(c).

      The dissent concludes that NRS 3.2203(2) 's lack of explicit enumeration of NRS Chapter 125C places these proceedings beyond the reach of NRS 3.2203. We disagree. District courts conducting proceedings pursuant to NRS Chapter 125C already have jurisdiction to make the types of findings that constitute SIJ findings, see, e.g., NRS 125C.003 (awarding physical custody of a child); NRS 125C.003(3) (determining if a parent has I abandoned a child); NRS 125C.0035(4)(j) (determining if a parent has abused or neglected a child); NRS 125C.0035(4) (setting forth considerations in evaluating a child's best interest). In resolving Amaya's petition for custody, the district court's jurisdiction encompassed making the SIJ findings that were material to A.A.'s custody and best interest. See Landreth v. Malik , 127 Nev. 175, 187, 251 P.3d 163, 171 (2011) (concluding that the family court had jurisdiction to resolve issues beyond its jurisdiction when necessary to resolve matters over which its jurisdiction was properly exercised). NRS 3.2203 does not divest the court of this authority. See id. at 180, 251 P.3d at 166-67 (holding the Legislature cannot limit the constitutional powers of a district court judge).

      Several other jurisdictions have adopted this approach. See, e.g., Simbaina v. Bunay , 221 Md.App. 440, 109 A.3d 191, 201 (2015) (noting that the state court order awarding sole custody made a determination about the juvenile's custody for purposes of making SIJ findings); De Guardado v. Guardado Menjivar , 901 N.W.2d 243, 247-48 (Minn. Ct. App. 2017) (recognizing the determinations made in a dissolution proceeding satisfied the dependency or custody prong because the findings pertained to the minor child's physical and legal custody); In re Marcelina M.-G. v . Israel S., 112 A.D.3d 100, 973 N.Y.S.2d 714, 721 (2013) (finding that the family court order placing a juvenile in her mother's custody satisfied the dependency or custody prong).


text:
    Frederick FITZGERALD, Individually, Appellant, v. ISLA AT SOUTH SHORES HOMEOWNERS ASSOCIATION, a Domestic Corporation, Respondent.
    No. 78708
    Supreme Court of Nevada.
    FILED JULY 11, 2019
   Paternoster Law Group

Wood, Smith, Henning & Berman, LLP/Las Vegas

ORDER DISMISSING APPEAL

Appellant has filed notice of withdrawal of appeal in which he moves to voluntarily withdraw this appeal. The verification appended to the motion references NRAP 3C, which governs criminal fast track appeals. Respondent objects to the notice of withdrawal and moves to strike it.

Although appellant's notice tracks the language of NRAP Form 8, which relates to NRCP 3C, see NRAP 3C(1), appellant expressly moves to dismiss this appeal. Moreover, the notice itself does not reference NRAP 3C. This court rejects respondent's assertion that the notice is ineffective to withdraw or dismiss this civil appeal and denies the motion to strike.

The motion to voluntarily dismiss this appeal is granted. NRAP 42(b). Respondent's request for leave to file an opposition is denied. However, this dismissal is without prejudice to respondent's ability to file a motion seeking attorney fees and/or costs if deemed warranted.

It is so ORDERED.


text:
    SILVER STATE SCHOOLS CREDIT UNION, a Nevada Corporation, Appellant, v. OELLA RIDGE TRUST, Respondent.
    No. 76382
    Supreme Court of Nevada.
    FILED JULY 11, 2019
    Kolesar & Leatham. Chtd.
    Kerry P. Faughnan
    ORDER OF REVERSAL AND REMAND
   This is an appeal from a district court judgment in a quiet title action. Eighth Judicial District Court, Clark County; Gloria Sturman, Judge.

Respondent Oella Ridge Trust purchased the subject property at the HOA's lien foreclosure sale and then filed the underlying quiet title action. Appellant Silver State Schools Credit Union (SSCU) opposed the action and asserted counterclaims for wrongful foreclosure and quiet title. Following a bench trial, the district court entered judgment in favor of Oella Ridge. In so doing, the district court found that in the 9 months preceding the HOA's notice of lien, the homeowners had paid an amount equal to 12 months of common assessments, and the HOA's lien notice consisted of interest, late and collection fees, and CC&R fines, only. Relying on Shadow Wood Homeowners Ass'n, Inc. v. N.Y. Community. Bancorp, Inc., 132 Nev. 49, 366 P.3d 1105 (2016), the court nevertheless concluded that the foreclosure sale extinguished SSCU's deed of trust because, by the time the HOA recorded a notice of default and election sell, the homeowners had fallen behind on assessments, such that the lien foreclosed upon contained a superpriority component. SSCU appeals from that decision.

Having considered the parties' arguments and the record, we conclude that the district court's determination that the HOA foreclosure sale extinguished the first deed of trust was legally erroneous. See Weddell v. H20, Inc., 128 Nev. 94, 101, 271 P.3d 743, 748 (2012) (reviewing a district court's factual findings following a bench trial for substantial evidence and its legal conclusions de novo). In particular, substantial evidence in the record supports the district court's finding that the HOA's notice of delinquent assessments was for interest, late and collection fees, and fines, only, and the homeowners owed no past-due assessments at that time. Pursuant to controlling statutes and case law, the HOA's lien therefore lacked a superpriority component such that the district court erred by concluding that the ensuing foreclosure sale extinguished SSCU's deed of trust. See NRS 116.3116(2) (2009) (describing the superpriority component of an HOA's lien as "the assessments for common expenses ... which would have become due ... during the 9 months immediately preceding institution of an action to enforce the lien" (emphasis added)); Saticoy Bay LLC Series 2021 Gray Eagle Way u. JPMorgan Chase Bank , N.A., 133 Nev. 21, 26, 388 P.3d 226, 231 (2017) (recognizing that under the pre-2015 version of NRS 116.3116, serving a notice of delinquent assessments constitutes institution of an action to enforce the lien); Horizons at Seven Hills Homeowners Assn v . Ikon Holdings., LLC, 132 Nev. 362, 371, 373 P.3d 66, 72 (2016) ("[T]he superpriority lien granted by NRS 116.3116(2) does not include an amount for collection fees and foreclosure costs incurred; rather it is limited to an amount equal to the common expense assessments due during the nine months before foreclosure.").

Accordingly, the district court erred in determining that the foreclosure sale extinguished the first deed of trust. We therefore

ORDER the judgment of the district court REVERSED AND REMAND this matter to the district court for proceedings consistent with this order.

      Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted.

      As the district court observed, unless paid, assessments continue to accrue after an HOA records a notice of delinquent assessment lien, see Shadow Wood , 132 Nev. at 61, 366 P.3d at 1113. Here, however, there were no delinquent assessments at the time the HOA recorded and served its lien notice, and in order for a lien to be afforded superpriority status, it must include assessments that are unpaid before the lien notice is served. NRS 116.3116(2) (2009); see Saticoy Bay 133 Nev. at 26, 388 P.3d at 231.

      As SSCU's deed of trust was not extinguished by the HOA foreclosure sale, we need not address SSCU's other appellate arguments for reversal.


text:
    In the MATTER OF DISCIPLINE OF David R. HUNT, Esq., Bar No. 14062.
    No. 78945
    Supreme Court of Nevada.
    FILED JULY 10, 2019
    State Bar of Nevada/Las Vegas
    David R. Hunt
    ORDER
   This is a petition under SCR 111 concerning attorney David R. Hunt, based on a conviction in California for driving under the influence, a misdemeanor. Hunt self-reported the conviction to the State Bar as required by SCR 111(2).

A temporary suspension and referral for disciplinary proceedings are not mandatory in this matter because the conviction is not for a "serious crime" as defined in SCR 111(6). SCR 111(7), (8). Because this was not Hunt's first conviction for a misdemeanor offense involving the use of alcohol, bar counsel had to investigate, present the matter to a disciplinary board hearing panel, and include the panel's recommendation as to any appropriate discipline with the petition filed under SCR 111. See SCR 111(4). Bar counsel complied with those requirements. As such, a separate referral to a disciplinary board is not necessary at this time. And, having considered the petition and supporting documentation, we conclude that Hunt's offense is a minor one that does not warrant the imposition of a temporary suspension at this time. See SCR 111(9).

It is so ORDERED.

      The State Bar filed a motion to seal Exhibit 4 to the petition. That motion was inadvertently filed as an attachment to the petition. We direct the clerk of this court to detach the motion from the petition and file the motion. Cause appearing, the motion is granted. The clerk of this court shall detach Exhibit 4 from the petition and file it under seal.

      This constitutes our final disposition of this matter. Any further disciplinary matter involving Hunt shall be docketed as a new matter.


text:
    In the MATTER OF REINSTATEMENT OF Chandan MANANSINGH, Bar No. 12033.
    No. 78582
    Supreme Court of Nevada.
    FILED JULY 09, 2019
    Bailey Kennedy
    Bar Counsel, State Bar of Nevada
    Executive Director, State Bar of Nevada
    ORDER OF REINSTATEMENT
   This is an automatic review of a Southern Nevada Disciplinary Board hearing panel's recommendation to reinstate suspended attorney Chandan Manansingh. As no briefs have been filed, this matter stands submitted for decision. SCR 116(2).

This court suspended Manansingh from the practice of law for four years and required he pay the costs of the disciplinary proceedings. Manansingh's suspension term has passed, he has paid the costs, and the panel has recommended he be reinstated to the practice of law in Nevada.

Based on our de novo review, we agree with the panel's conclusions that Manansingh has satisfied his burden in seeking reinstatement by clear and convincing evidence. SCR 116(2) ; Application of Wright , 75 Nev. 111, 112-13, 335 P.3d 609, 610 (1959) (reviewing a petition for reinstatement de novo). We therefore approve the panel's recommendation that the petition be granted and Manansingh be reinstated.

Accordingly, Chandan Manansingh is hereby reinstated to the practice of law in Nevada. Additionally, Manansingh shall pay the costs of the reinstatement proceeding, including $2,500 under SCR 120, within 30 days of this order, if he has not done so already.

It is so ORDERED.


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    In the MATTER OF Petition of Angela M. HENSLEY, Nevada Bar 9833 (Fee-Suspended).
    Angela M. Hensley, Petitioner, v. State Bar of Nevada, Respondent.
    No. 78462
    Supreme Court of Nevada.
    FILED JULY 11, 2019
    Lipson Neilson P.C.
    State Bar of Nevada/Las Vegas
    ORDER DENYING PETITION
    This petition seeks relief from past due fees and fines owed to the State Bar. Having considered the petition and the attached documents, we deny the requested relief. While we have an "inherent supervisory authority over the State Bar of Nevada," O'Brien v . State Bar of Nev., 114 Nev. 71, 72, 952 P.2d 952, 953 (1998) (internal quotations omitted); see also SCR 39 ; SCR 76, the State Bar's refusal to waive petitioner's past due fees and fines is not so unfair as to warrant our intervention into the State Bar's affairs, O'Brien , 114 Nev. at 77, 952 P.2d at 957. See SCR 85(1) (providing that "the board of governors shall be charged with the executive functions of the state bar and the enforcement of the provisions of [SCR] 49 to 204"). SCR 98(12) provides that any member who fails to pay their fees "must be suspended from membership in the state bar, but may be reinstated upon the payment of accrued fees and such penalties as may be imposed by the board of governors." Unlike some other states, Nevada's rules do not include a hardship waiver. Cf. Ariz. Sup. Ct. Rule 32(7) ; Ky. Sup. Ct. Rule 3.040(4) ; La. Sup. Ct. DISC Rule 19(8)(A); Mont. Bar Bylaws Art. 1, Sec. 4(e); N.M. Bar Rule 24-102(G); N.C. Bar Rule 1A.0902(g); Tex. Bar Rule Art. 3, Sec. 8. Accordingly, we
    ORDER the petition DENIED.


text:
    In the MATTER OF the Parental Rights as to C.N.E.S.-N., and K.E.M.M., Minor Children.
    Shauna R.M.; and Danny E.M., Jr., Appellants, v. Alana McKinney, of Casa of Northeastern Nevada, Respondent,.
    No. 76911
    Supreme Court of Nevada.
    FILED JULY 11, 2019
    Lockie & Macfarlan, Ltd.
    Hillewaert Law Firm
    Michelle L. Rodriguez
    ORDER OF AFFIRMANCE
   This is an appeal from a district court order terminating appellants' parental rights. Fourth Judicial District Court, Elko County; Alvin R. Kacin, Judge.

The two children were placed in protective custody after emergency responders were called to appellants' home to treat C.N.E.S.-N., who was unresponsive after suffering a traumatic brain injury from appellant Danny E.M., Jr.'s abuse. The injury resulted in the child's extensive hospitalization and ongoing rehabilitation and left her with limited use of the left side of her body. At the time, the child had numerous bruises in varying degrees of healing. Both Danny and appellant Shauna R.M. failed to provide plausible explanations for the child's injuries, claiming that they were accidental or self-inflicted. Danny was arrested and subsequently convicted of two felony counts of child abuse or neglect. Shauna R.M. acknowledged seeing Danny hit the child with a belt a few days earlier and that she was aware of previous reports that he had abused his older son but she continued to deny that Danny abused C.N.E.S.-N. and caused her injuries. The initial plan for Shauna in the protective custody matter was reunification concurrent with termination of parental rights. The plan required Shauna to gain insight into the cause of the child's injuries, including that the child was abused while under her care, and her role to protect the children from harm. Shauna later acknowledged that Danny caused C.N.E.S.-N.'s injuries but testimony and evidence at an interim review hearing indicated that Shauna still lacked insight regarding her role to protect the children and that she lacked minimally adequate protective capacities for the children's return to her custody.

Respondent subsequently filed a petition to terminate parental rights. After a seven-day hearing, the district court entered an order terminating appellants' parental rights, finding clear and convincing evidence supported that termination was in the children's best interest and parental fault based on unfitness, neglect, and failure to adjust the circumstances that led to the children's removal. See NRS 128.105(1) (providing that an order terminating parental rights must be based on evidence and findings that (1) termination would serve the children's best interest, and (2) at least one ground of parental fault exists); In re Parental Rights as to N.J., 116 Nev. 790, 800-01, 8 P.3d 126, 132-33 (2000) (recognizing that the best interests of the children and parental fault must be found by clear and convincing evidence). Danny and Shauna appeal.

Danny fails to raise any argument challenging the district court's decision based on insufficient evidence or legal error, and thus, we affirm the order terminating his parental rights. 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 claims that are not cogently argued or supported by relevant authority); see In re Parental Rights as to A.L., 130 Nev. 914, 918, 338 P.3d 758, 761 (2014) (stating that on appeal, this court reviews questions of law de novo and the district court's factual findings for substantial evidence).

Shauna argues that substantial evidence does not support the district court's findings of parental fault because she was never charged criminally with abuse or neglect and she did not know that Danny would abuse C.N.E.S.-N. She also contends that the record does not support a finding that termination of her rights was in the children's best interest because the Department of Child and Family Services failed to make reasonable efforts to reunify the family.

Having considered the briefing and record provided by Shauna, we conclude that the district court applied the correct legal standards under NRS Chapter 128 and that substantial evidence supports its findings of parental fault based on neglect and unfitness. NRS 128.105(l)(b) ; NRS 128.014(1) (explaining that a child is neglected when the child lacks "proper parental care by reason of the fault or habits of his or her parent"); NRS 128.018 (providing that a parent is unfit when "by reason of the parent's fault or habit or conduct toward the child or other persons, [the parent] fails to provide such child with proper care, guidance and support"); see In re Parental Rights as to A.L ., 130 Nev. at 918, 338 P.3d at 761.

Other than the petition to terminate rights and the district court's order, Shauna did not provide this court with the record from the termination proceedings, instead limiting her appendix to documents and transcripts from the protective custody proceedings. Although she points to documents from those proceedings to show she was complying with her case plan, the district court acknowledged that in its termination order but found neglect and unfitness based on evidence that Shauna failed to protect C.N.E.S.-N. from abuse and neglect, which the court determined was evident before Danny inflicted her near-fatal injuries. The court did not find credible Shauna's benign explanations for bruising observed over the child's body, determining that Shauna left the child with a dangerous and abusive caregiver, who she chose to continue to support after his abuse was exposed. The court found that Shauna exposed the younger child to the abuse resulting in mental and emotional trauma requiring therapy. It found that the children lacked proper parental care due to Shauna's fault or habits and life choices before and after Danny abused C.N.E.S.-N., and even if the court credited Shauna's testimony that the child was self-harming before Danny started abusing her, medical records demonstrated that Shauna did not attempt to secure care needed to deal with that issue.

The court found that Shauna's inability to protect the children was irremediable. It relied on evidence that she chose to stand by Danny through the date of his conviction and shortly thereafter, she began a live-in relationship with a man who has a felony conviction for a 2014 offense of battery that constitutes domestic violence and an earlier misdemeanor conviction for battery of his ex-girlfriend. The district court did not find credible Shauna's testimony that she truly believed Danny abused C.N.E.S.-N., but regardless, it found that Shauna had failed to resolve the main risk factor in the case, which is her inability to recognize people and situations posing dangers to her and her children. In that regard, the court considered evidence of Shauna's dependent personality traits and her insistence that C.N.E.S.-N. inflicted her own non-catastrophic injuries, which the court concluded rendered Shauna consistently unable to care for the children's immediate and continuing physical and psychological needs. See NRS 128.106(l)(a) (providing that in determining a parent's neglect or unfitness, the court must consider a "mental deficiency of the parent which renders the parent consistently unable to care for the ... needs of the child for extended periods of time").

The district court's order references the termination of parental rights hearing and exhibits, as well as its evaluation of the testimony, a transcript of which Shauna did not provide. Accordingly, we must presume that the missing part of the record provides substantial evidentiary support for the district court's parental fault findings of neglect and unfitness. See Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007) (explaining that the appellant is responsible for making an adequate appellate record, and when "appellant fails to include necessary documentation in the record, we necessarily presume that the missing portion supports the district court's decision"); see also NRAP 30(a) and (b).

We further conclude that substantial evidence supports the district court's finding that termination of Shauna's parental rights was in the children's best interest. Because the children have been out of Shauna's care for more than 14 consecutive months, the court applied the presumption that termination of Shauna's parental rights is in the children's best interest. NRS 128.109(2). Under NRS 128.109(3), that presumption "must not be overcome or otherwise affected by evidence of failure of the State to provide services to the family." Further, we must presume that substantial evidence in the record supports the district court's findings regarding the factors set forth in NRS 128.107 and NRS 128.108, including the children's physical, mental and emotional conditions and needs, the children's bonds with the foster family and the permanency that family provides; the children's lack of a bond with Shauna; and the foster family's ability to better care for the children, considering the oldest child's special needs. See Cuzze , 123 Nev. at 603, 172 P.3d at 135.

Based on the foregoing, we

ORDER the judgment of the district court AFFIRMED.

      Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted in this appeal.

      As to Danny, the court found unfitness based on conduct under NRS 432B.393(3)(a)(3) (providing that reunification efforts need not be made where the parent caused extreme abuse or neglect of the child or a sibling, such that any plan to return the child would be an unacceptable risk to the child's health or welfare) and NRS 128.106(b), (f), and (g) (addressing as bases for parental unfitness: abusive conduct, the parent's felony conviction for certain crimes, and the child or sibling suffering physical injury resulting in substantial bodily harm while in the parent's care).

      To the extent that Danny is challenging the termination of Shauna's parental rights, he lacks standing to do so. See Logan v. Abe , 131 Nev. 260, 263, 350 P.3d 1139, 1141 (2015) (observing that a party generally lacks standing to complain of errors that affect only the rights of others).

      Respondent's answering brief cites to the trial transcript as evidentiary support for the district court's findings. In her reply brief, Shauna does not meaningfully address those citations or refute that they provide what respondent claims.

      As only one ground of parental fault is required to support the termination of parental rights, see NRS 128.105(1)(b), we need not review the district court's finding regarding failure to adjust the circumstances that led to the children's removal.

      We have considered Shauna's remaining arguments on appeal, and conclude that they do not provide a basis for reversal.


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    David Levoyd REED, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK, Respondent, and The State of Nevada, Real Party in Interest.
    No. 78892
    Supreme Court of Nevada.
    FILED JULY 11, 2019
    David Levoyd Reed
    Attorney General/Carson City
    Clark County District Attorney
    ORDER DENYING PETITION
    This pro se petition for a writ of mandamus challenges Judge Michael Villani's order denying petitioner's motion to recuse Judge William Kephart for bias or prejudice. We conclude petitioner has not demonstrated that the district court arbitrarily or capriciously exercised its discretion in denying his motion. See NRS 34.160 ; Poulos v. Eighth Judicial Dist. Court , 98 Nev. 453, 455, 652 P.2d 1177, 1178 (1982) (recognizing that a writ of mandamus is an extraordinary remedy and that the decision to entertain such a writ rests within this court's discretion); Round Hill Gen. Imp. Dist. v. Newman , 97 Nev. 601, 603-04, 637 P.2d 534, 536 (1981) (recognizing that a writ of mandamus is available to control an arbitrary or capricious exercise of discretion); see also State v. Eighth Judicial Dist. Court (Armstrong ), 127 Nev. 927, 931-32, 267 P.3d 777, 780 (2011) ("An arbitrary or capricious exercise of discretion is one 'founded on prejudice or preference rather than on reason' ... or 'contrary to the evidence or established rules of law.' " (internal citations omitted)). Accordingly, we
    ORDER the petition DENIED.


text:
    Samantha MERRELL, Petitioner, v. Clark County Justice of the Peace Suzan BAUCUM; and Justice of the Peace Ann Zimmerman, Respondents, and The State of Nevada, Real Party in Interest.
    No. 78802
    Supreme Court of Nevada.
    FILED JULY 11, 2019
    Law Offices of John G. Watkins
    The Pariente Law Firm, P.C.
    Clark County District Attorney
    ORDER DENYING PETITION
    This petition for a writ of mandamus challenges a district court order denying a motion to recuse/disqualify a judge in a misdemeanor DUI prosecution. We are not satisfied that this court's intervention by way of an extraordinary writ is warranted because petitioner has not demonstrated that the justice court acted arbitrarily and capriciously in denying the motion to recuse/disqualify. See NRS 34.160 ; State v. Eighth Judicial Dist. Court (Armstrong), 127 Nev. 927, 931-32, 267 P.3d 777, 780 (2011) (recognizing that a writ of mandamus may issue to control an arbitrary or capricious exercise of discretion and defining an arbitrary and capricious exercise of discretion as "one founded on prejudice or preference rather than on reason, or contrary to the evidence or established rules of law") (internal citations and quotations omitted); Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 228, 88 P.3d 840, 844 (2004) (recognizing that a petitioner bears the burden of demonstrating that extraordinary relief is warranted); Smith v. Eighth Judicial Dist. Court, 107 Nev. 674, 677, 818 P.2d 849, 851 (1991) (recognizing that the issuance of a writ of mandamus is discretionary); see also NCJC 2.11(A)(1) (requiring disqualification where a judge's impartiality might reasonably be questioned); Rivero v . Rivero , 125 Nev. 410, 439, 216 P.3d 213, 233 (2009) (recognizing that bias must stem from an extrajudicial source, something other than what the judge learned from her participation in the case); In re Petition to Recall Dunleavy, 104 Nev. 784, 789, 769 P.2d 1271, 1275 (1988) (holding that adverse judicial rulings during the proceedings are not a basis to disqualify a judge). Accordingly, we
    ORDER the petition DENIED.


text:
    Richard BANDA, a/k/a Tony Banda, Appellant, v. The STATE of Nevada, Respondent.
    No. 78752
    Supreme Court of Nevada.
    FILED JULY 12, 2019
    Richard Banda
    Attorney General/Carson City
    Clark County District Attorney
    ORDER DISMISSING APPEAL
    This appeal was initiated by the filing of a pro se notice of appeal. Eighth Judicial District Court, Clark County; William D. Kephart, Judge.
    Appellant filed a notice of appeal on May 6, 2019. The notice of appeal fails to identify any decisions of the district court. See NRAP 3(c)(1)(B). To the extent that appellant appeals from the order denying a "motion for an order to grant evidentiary hearing," no statute or court rule provides for an appeal from such an order. Castillo v. State , 106 Nev. 349, 792 P.2d 1133 (1990). To the extent that appellant appeals from the order denying a motion to modify sentence entered on January 14, 2019, the notice of appeal was untimely filed. Lozada v. State , 110 Nev. 349, 352, 871 P.2d 944, 946 (1994). Accordingly, this court
    ORDERS this appeal DISMISSED.

      Given this order, this court takes no action on the pro se document filed on May 22, 2019.


text:
    LN MANAGEMENT LLC SERIES 7947 MAGIC LAMP, Appellant, v. BANK OF AMERICA, N.A., Successor by Merger to BAC Home Loans Servicing, LP, f/k/a Countrywide Home Loans Servicing, LP, Respondent.
    No. 78302
    Supreme Court of Nevada.
    FILED JULY 12, 2019
    Kerry P. Faughnan
    Akerman LLP/Las Vegas
    ORDER DISMISSING APPEAL
    This is an appeal from an order granting summary judgment. Eighth Judicial District Court, Clark County; Kenneth C. Cory, Judge.
    This court directed appellant to show cause why this appeal should not be dismissed because several claims between the parties have not been resolved and the order appealed from has not been certified pursuant to NRCP 54(b). This court noted that the mere imposition of a stay of such related claims does not render the order final or appealable. A final judgment is one that finally resolves all claims and issues against all parties to an action and leaves nothing to the district court's consideration except postjudgment issues such as attorney fees and costs. Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000).
    In response, appellant concurs that the district court has not resolved all the claims between the parties. Accordingly, this court lacks jurisdiction and
    ORDERS this appeal DISMISSED.


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    HELIX ELECTRIC OF NEVADA, LLC, Appellant, v. APCO CONSTRUCTION, INC., a Nevada Corporation, Respondent.
    No. 76276
    Supreme Court of Nevada.
    FILED JULY 12, 2019
   Peel Brimley LLP/Henderson

Fennemore Craig, P.C./Las Vegas

Marquis Aurbach Coffing

Spencer Fane LLP/Las Vegas

Fennemore Craig, P.C./Phoenix

ORDER DISMISSING APPEAL

This is an appeal from a district court order entering judgment against appellant. Eighth Judicial District Court, Clark County; Mark R. Denton, Judge.

When review of appellant's amended docketing statement revealed that it was incomplete, this court ordered appellant to file and serve an amended docketing statement that contained a complete response to item 23. Appellant filed a second amended docketing statement but that document still did not contain all required information. It was thus unclear whether the district court had entered a final judgment appealable under NRAP 3A(b)(l). See Lee v. GNLV Corp ., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000) (defining a final judgment). Accordingly, this court entered an order directing appellant to show cause why this appeal should not be dismissed for lack of jurisdiction. The order noted that the underlying case is extraordinarily complex, involving dozens of parties and multiple consolidated cases. Appellant was directed to provide specific information regarding each claim, counterclaim, third-party claim, and complaint in intervention asserted.

Having reviewed appellant's response, as well as the attached exhibits, appellant fails to demonstrate that the district court has entered a final judgment in the constituent case. See Moran v. Bonneville Square Assocs., 117 Nev. 525, 527, 25 P.3d 898, 899 (2001) (stating that the burden of establishing appellate jurisdiction lies with appellant). Appellant states that several claims and counterclaims were abandoned and not expressly resolved in a district court order but asserts that these claims are fully resolved due to the application of claim preclusion. Whether or not the claims may be brought again in future litigation is a separate inquiry from whether all asserted claims have been fully resolved so as to invoke this court's jurisdiction under NRAP 3A(b)(1). As noted in this court's order to show cause, the fact that a party was not inclined to pursue a claim does not operate as a formal dismissal of that claim. KDI Sylvan Pools, Inc . v. Workman , 107 Nev. 340, 342, 810 P.2d 1217, 1219 (1991). Accordingly, it appears that the order challenged in this appeal is not appealable as a final judgment. As no other statute or court rule appears to authorize an appeal from the challenged order, see Brown v. MHC Stagecoach, LLC, 129 Nev. 343, 345, 301 P.3d 850, 851 (2013) (this court ''may only consider appeals authorized by statute or court rule"), it appears this court lacks jurisdiction and

ORDERS this appeal DISMISSED.

      Given this dismissal, the motion to consolidate this appeal with Docket No. 77320 is denied as moot. This court will determine its jurisdiction in Docket No. 77320 at a later date.


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    Earl J. BARNES, II, Petitioner, v. The EIGHTH JUDICIAL DISTRICT COURT of the State of Nevada, IN AND FOR the COUNTY OF CLARK; and the Honorable Elizabeth Goff Gonzalez, District Judge, Respondents, and Farmers Group, Inc.; and Farmers Insurance Exchange, Real Parties in Interest.
    No. 77069
    Supreme Court of Nevada.
    FILED JULY 11, 2019
    Rempfer Mott Lundy, PLLC
    Greenman Goldberg Raby & Martinez
    The Feldman Law Firm, P.C.
    ORDER DENYING PETITION FOR WRIT OF MANDAMUS
    This is an original petition for a writ of mandamus challenging the district court's denial of petitioner's countermotion for summary judgment in a tort action. Having considered petitioner's and real parties in interest's argument and the supporting documents, we conclude that our extraordinary and discretionary intervention is not warranted because an appeal from a final judgment provides an adequate remedy. See NRS 34.160 ; NRS 34.170 ; Pan v. Eighth Judicial Dist. Court , 120 Nev. 222, 224, 228, 88 P.3d 840, 841, 844 (2004) (stating that an appeal is generally an adequate legal remedy precluding writ relief and recognizing that petitioner bears the burden of demonstrating that writ relief is warranted, unless the district court is obligated to summarily adjudicate the action or an important issue of law requires clarification); Smith v . Eighth Judicial Dist. Court , 113 Nev. 1343, 1344-45, 950 P.2d 280, 281 (1997) (observing that this court generally will not consider writ petitions challenging orders denying motions for summary judgment); Smith v. Eighth Judicial Dist. Court , 107 Nev. 674, 677, 818 P.2d 849, 851 (1991) (observing that issuance of the writ is subject to this court's discretion).
    Accordingly, we
    ORDER the petition DENIED.


text:
    Pasqual Andres MCMURRY, Appellant, v. The STATE of Nevada, Respondent.
    No. 79023
    Supreme Court of Nevada.
    FILED JULY 15, 2019
    Attorney General/Carlson City
    Clark County District Attorney
    ORDER DISMISSING APPEAL
    This appeal was initiated by the filing of a pro se notice of appeal. Eighth Judicial District Court, Clark County; Kathleen E. Delaney, Judge.
    Appellant filed his notice of appeal on June 13, 2019. In his notice of appeal, appellant states that he is challenging the district court order "that denied his motion to oppose the withdrawal of his court appointed counsel." Because no statute or court rule provides for an appeal from an order denying a motion opposing the withdrawal of court-appointed counsel, this court lacks jurisdiction. See Castillo v. State , 106 Nev. 349, 792 P.2d 1133 (1990). Accordingly, this court
    ORDERS this appeal DISMISSED.