{Converted
to html. JM}
Electronically
Filed
Nov
05 2021 11:45 a.m.
Elizabeth
A. Brown
Clerk
of Supreme Court
IN
THE SUPREME COURT OF THE STATE OF
Supreme
Court Case No. 82559
District
Court Case No. 09OC005791B
REZA
ZANDIAN, A/K/A GOLAMREZA ZANDIANJAZI, A/K/A GHOLAM REZA ZANDIAN, A/K/A REZA
JAZI, A/K/A J. REZA JAZI, A/K/A G. REZA JAZI, A/K/A GHONOREZA ZANDIAN JAZI, an
individual,
Appellant,
vs.
JED
MARGOLIN, an individual,
Respondent.
On
Appeal from Order Granting Plaintiff’s Motion To Void Deeds, Assign
Property, For Writ Of Execution And To Convey dated January 19, 2021 in the
First Judicial District Court,
The
Honorable James T. Russell Presiding
APPELLANT’S
REPLY BRIEF
Mark
Forsberg (SBN 4265)
Rick
Oshinski (SBN 4127)
OSHINSKI
& FORSBERG, LTD.
Telephone
775-301-4250
Attorneys
for Appellant
TABLE
OF CONTENTS
Table
of Contents .....................................................................................................
i
Table
of Authorities
.................................................................................................
ii
Summary
of Reply ...................................................................................................
1
Argument
.................................................................................................................
2
A
. The Order Appealed From is a “Special Order” under Gumm v. Mainor ........ 2
B.
Appellant is Not Challenging the Default Judgment Itself
................................ 4
C.
This Court Should Consider Appellant’s NRS 17.150(4) Argument
for
the First Time on Appeal to Prevent Plain Error
.............................................. 5
D.
Respondent’s Interpretation of NRS 17.150(2) Would
Render
Subsection (4) Meaningless
....................................................................... 9
Conclusion
............................................................................................................
16
-i-
TABLE
OF AUTHORITIES
CASES:
Bradley v. Romeo, 102
Clark Co. v. Southern
Nevada Health District, 289 P.3d 212, 215 (2012) ...........................
10
Cook v.
124
Givens v. State, 99
Gumm v. Mainor, 118
International Game
Technology, Inc. v. Second Jud. Dist. Court,
124
Landmark Hotel &
Casino, Inc. v.
104
Leven v. Frey, 123
Leyva v. National
Default Service,
125
Nutraceutical Dev. Corp.
v. Summers,
373 P.3d 946, fn 1 (2011) .......................................... 9
Pasillas v. HSBC Bank
-ii-
Roberts v. American
Family Mut. Ins. Co.,
144 P.3d 546 (
Sea & Sage Audubon
Society, Inc. v. Planning Com., (1983) 34
Secured Holdings, Inc.
v. Eighth Jud. Dist. Court of State
(
Southern Nevada Home
Builders v.
121
Thomas v. Hardwick, 126
Torres v. Farmers Ins.
Exchange,
106
We The People
124
Wilkinson v. Wilkinson, 73
Winn v.
Worsnop v. Karam, 458 P.3d 353
(2020)
..................................................................................
14
STATUTES:
NRS
17.150(2)
...........................................................................................................
1
NRS
17.150(4)
.....................................................................................
1, 9, 10, 13, 14
NRS
17.214
..............................................................................................................
13
-iii-
RULES:
-iv-
SUMMARY
OF REPLY
This Court has jurisdiction
over this appeal because the order under review is a special order pursuant to NRAP
3A(b)(8). The order affects the rights of “some party to the action, growing
out of the judgment previously entered” and “affects rights incorporated in the
judgment.” Despite Respondent’s claim, this appeal does not challenge the
default judgment itself but asserts that the judgment became unenforceable when
the judgment creditor failed to comply with the statutory requirement that an
affidavit of judgment be recorded at the time the judgment was recorded.
Caselaw establishes that this
Court may consider a matter which was not raised in the court below if the
error results in a miscarriage of justice. In particular, appellate review is
appropriate where a statute which is controlling was not applied by the court
below. In this case, NRS 17.150(4) was not applied by the district court and
that failure has resulted in manifest injustice.
Finally, Respondent’s
interpretation of NRS 17.150(2), if adopted by this Court, would render
Subsection (4) of the statute meaningless. Subsection (4) provides that “in
addition to recording the information described in subsection 2, a judgment
creditor who records a judgment or decree for the purpose of creating a lien
upon the real property of the judgment debtor pursuant to subsection 2 shall
record at that time an affidavit of judgment…” By use of the word “shall,” the
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legislature expressed its
intent that the above provision is not merely advisory, it is mandatory. If the
legislature had intended that recording of a judgment was all that was
necessary to create a judgment lien, it would not have included subsection (4)
in the statute.
ARGUMENT
A. The Order Appealed From is a “Special Order”
under Gumm v. Mainor.
Presently, the rule regarding
appealable special orders entered after final judgment is found at NRAP
3A(b)(8). It makes appealable “a special order entered after final judgment,
excluding an order granting a motion to set aside a default judgment under NRCP
60(b)(1) when the motion was filed and served within 60 days after entry of the
default judgment.” The exception is not applicable here. Therefore, under Gumm v. Mainor, 118 Nev. 912, 59 P.3d
1220 (2002), the order of the district court ordering the conveyance of
property owned in part by Appellant to the Respondent here was a special order
appealable under the rule. The order, in fact, affected the rights of both
parties: it affected the rights of Respondent by permitting him to execute on
the real property, and it affected the rights of Appellant by allowing
execution when the Respondent failed to follow the statutory obligations
imposed upon him for the perfecting of a lien. In Gumm, a lien holder sought to have the appeal dismissed on
jurisdictional grounds based on earlier cases decided by this Court that the
order distributing the judgment proceeds was not appealable
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because it did not affect both
parties to the underlying action. The court reviewed its jurisprudence with
respect to what constitutes a special order and concluded that a special order,
to be appealable, must be an order affecting the rights of “some party to the
action, growing out of the judgment previously entered. It must be an order
affecting rights incorporated in the judgment.”
The Wilkinson interpretation is at odds with the
rule’s language, as well as with the precedent the case relies upon in
formulating the definition, and with the cases that have allowed a party to
appeal from a post-judgment order adjudicating an attorney’s lien and awarding
attorney fees and costs.
This lack of clarity violates the fundamental
principle that jurisdictional rules should be simple and clear. Therefore, we
take this opportunity to clarify that what constitutes a special order made
after final judgement, which is independently appealable under NRAP 3A(b)(2).
We reject the Wilkinson interpretation, and we adopt the
A special order made after final judgment, to be
appealable under NRAP 3A(b)(2), must be an order affecting the rights of some
party to the action, growing out of the judgment previously entered. It must be
an order affecting the rights incorporated in the judgment.
-3-
Moreover, contrary to the assertions
of Respondent, NRS 17.150(4), offers protection for judgment creditors by
requiring that certain steps, including the recording of an affidavit of
judgment, be accomplished at the time the judgment is recorded in order to
perfect a judgment lien. Here, it is undisputed that Respondent, the judgment
creditor, failed to meet those statutory requirements for perfecting a lien by
recording an affidavit of judgment at the time the judgment was recorded. And,
as also set forth in the Opening Brief, those provisions of the statute require
strict compliance. In the absence of strict compliance, no lien is created and
the judgment creditor cannot execute on the property. Zandian’s right to strict
compliance with the statutory scheme with respect to his property is not
imaginary and nonexistent as asserted (without supporting authority) by
Respondent.
B. Appellant is Not Challenging the Default
Judgment Itself.
Respondent’s second argument
regarding jurisdiction is without merit as it is based on a faulty premise:
that Appellant is challenging the default judgment itself. That is simply not
the case. Rather, Appellant asserts that the judgment became unenforceable when
the judgment creditor failed to comply with statutory requirement that an
affidavit of judgment be recorded at the time the judgment was recorded. And,
because strict compliance is required, Respondent cannot cure his
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noncompliance by recording the
affidavits of judgment in 2021, during the pendency of this appeal and some
seven years after the judgment was recorded.
C. This Court Should Consider Appellant’s NRS
17.150(4) Argument for the First Time on Appeal to Prevent Plain Error.
Respondent argues that the
district court did not abuse its discretion by granting Respondent’s motion to
void deeds because Appellant did not oppose it in the district court and should
not be allowed to raise the argument on appeal. However, this is the kind of
case and the kind of circumstances in which this Court previously has
considered an appeal notwithstanding the failure of the appellant to articulate
the basis for the appeal in the district court. For example, in Bradley v. Romeo,
102
The ability of this court to consider relevant
issues sua sponte in order to prevent plain error is well established. See, e.g., Western Indus., Inc. v. General Ins. Co., 91
-5-
Here, Respondent moved the
district court for an order in furtherance of its execution on a judgment
recorded in 2013 without providing the district court with any evidence that it
had complied with the mandates of NRS 17.150(4) to establish that a judgment
lien had been created. This failure to establish compliance with the statute
was made more egregious by the context of Respondent’s motion in the district
court: Respondent informed the district court that the judgment it was seeking
to execute upon had been declared void ab
initio by the bankruptcy court and affirmatively represented to the
district court that that order would be appealed. For reasons Respondent has
yet to explain, Respondent submitted the motion for decision after the
bankruptcy case was dismissed, and without revealing or explaining to the
district court his non-compliance with NRS 17.150(4), which he knew was an
issue, having raised the bankruptcy court decision in the motion.
This case, like Bradley, is one
in which a statute which is clearly controlling was not applied by the court
below. Respondent does not dispute that NRS 17.150(4) is applicable in this
case. Ironically and disingenuously, Respondent argues both that the
requirement for the recording of an affidavit of judgment at the time the
judgment is recorded is not mandatory, while drawing to the court’s attention
in his motion to take judicial notice, that he had complied by recording the
affidavits of judgment during the pendency of this appeal. Respondent’s conduct
in this regard supports Appellant’s argument that NRS 17.150(4) does require an
affidavit of
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judgment to be recorded at the
time the judgment is recorded and his recognition that he had not complied with
the statute at the time the judgments were recorded. Respondent plainly
recognizes that the statute is applicable, that it was not complied with and
that the district court failed to consider the effects of the statute. Otherwise,
there would be no reason for him to record the affidavits of judgment seven
years after the default judgment was recorded nor to seek this Court’s judicial
notice of the fact that they were recorded at all.
Thus, this case is, as it was
in Bradley, one in which this Court
should consider, sua sponte, the NRS 17.150(4) issue, as it is a case where a
statute which is controlling was not applied by the court below. Furthermore,
this Court may consider plain error even in the absence of an objection if the
error resulted in a miscarriage of justice. Landmark
Hotel & Casino, Inc. v.
-7-
record below will result in a
different outcome: a denial of the motion and order from which this appeal is
taken.
-8-
supra, this
Court is not constrained by the failure of a party to specifically identify an
issue and bring it to the trial court’s attention.
See also, Nutraceutical Dev.
Corp. v. Summers, 373 P.3d 946, fn 1 (2011) in which the court restated the
proposition that issues are waived unless they constitute plain error, and
citing
D. Respondent’s Interpretation of NRS 17.150(2)
Would Render Subsection (4) Meaningless.
Respondent contends that he
created a judgment lien against several properties merely by recording a copy
of the judgment in the county where the properties were located. Respondent
relies upon subsection (2) of NRS 17.150 for this position. According to the
Respondent, once he records the judgment, a lien attaches without any further
action on the part of the judgment creditor. To accept this interpretation, one
must necessarily ignore subsection (4) of the same statute which provides, in
pertinent part, “In addition to recording the information described in
subsection 2, a judgment creditor who records a judgment or decree for the
purpose of creating a lien upon the real property of the judgment debtor
pursuant to subsection 2 shall record at that time an affidavit of judgment…”
stating certain information intended to identify the judgment debtor and the
property, and which
-9-
must include a statement, made
on personal knowledge, that the judgment creditor has confirmed that the
judgment debtor is the legal owner of that real property. Subsection (4)
expressly states that it is for the purpose of “creating a lien upon the real
property of the judgment debtor pursuant to subsection 2” and that the
affidavit “shall” be recorded at the same time the judgment is recorded. This
provision is clear and unambiguous because it unmistakably requires the
affidavit to be recorded at the same time as the judgment and unmistakably
requires the identifying information required by the statute which addresses
the legislature’s concerns and intent behind the statute. See Opening Brief at
pp. 19-24. This provision is not merely advisory, it is mandatory. Respondent
completely ignores this portion of the statute.
When analyzing a statute, this
Court begins with the plain meaning rule. Clark
Co. v. Southern Nevada Health District, 289 P.3d 212, 215 (2012), citing We The People Nevada v. Secretary of State,
124
-10-
it is capable of two or more
reasonable interpretations, this Court will look to the provision’s legislative
history and the scheme as a whole to determine what the framers intended.
When interpreting the meaning
of a statute, the term “may” is construed as permissive and “shall” is
construed as mandatory unless the statute demands a different construction to
carry out the clear intent of the legislature. Givens v. State, 99
Subsection (4) of the statute
is clear and unambiguous. If a judgment creditor desires to create a judgment
lien, he must record a copy of the judgment in the appropriate county and
“shall” also record an affidavit of judgment “at that time.” Respondent does
not explain why this section of that statute should be ignored under the
circumstances of this case.
Should this Court decide that
subsection (4) is ambiguous or susceptible to more than one meaning, then it
must apply its normal rules of statutory construction.
-11-
As set forth above, it is well
settled that statutes must be construed as a whole and that a statute should
not be interpreted in such a manner as to render a portion of the statute
meaningless or a nullity. Under the interpretation urged by Respondent, that is
exactly what he is asking this Court to do. Surely, if the legislature had
intended that recording of a judgment was all that was necessary to create a
judgment lien, it would not have included subsection (4) in the statute.[1]
Respondent asserts that the
Court of Appeals’ decision in Secured
Holdings, Inc. v. Eighth Jud. Dist.
_________________
[1] Respondent claims that Appellant’s argument
that the district court erred because it was on notice of the bankruptcy
court’s order when it granted the motion to void deeds is specious. Respondent
relies on the fact that the bankruptcy court’s order was ruled void ab initio
and all bankruptcy proceedings were dismissed prior to the district court’s
order being entered. Answering Brief at 15-16. There is nothing in the record
showing that these facts had any influence on the district court’s decision.
However, there is ample evidence in the record that the court was on inquiry
notice that the judgment liens were not perfected. A person is put on inquiry
notice when he or she should have known of facts that would lead an ordinarily
prudent person to investigate the matter further. Winn v.
-12-
does not assert that writ
relief is warranted based on an important issue of law needing clarification
and we therefore do not address that issue further.”
Similarly, Respondent’s claim
that this Court’s decision in Leven v.
Frey is not analogous to this case is unpersuasive. In Leven, this Court held that statutes allowing for a “reasonable
time” to act are subject to interpretation for substantial compliance, but
those with set time limitations are not. 123
-13-
as in Leven, must be strictly
construed. See also Worsnop v. Karam,
458 P.3d 353 (2020). It is undisputed in this case that Respondent failed to
record an affidavit of judgment at the time he recorded the judgment itself. To
the extent any affidavits were filed at all, they were filed years later and
only during the pendency of this appeal. The Leven court observed that with respect to NRS 17.214, “the
legislature did not provide for any deviations from this [timing] requirement,
and we perceive no reason to extend this period in contravention of the
legislature’s clear and express language.” Leven,
123
Instead, Respondent alleges
that Appellant’s Opening Brief made a false statement of fact with regard to
the filing and/or recordation of Respondent’s affidavit of judgment. Respondent
alleges that Appellant stated to this Court that the affidavit of judgment was
never “recorded anywhere” and then relies upon its motion to take judicial
notice (filed concurrently with the Answering Brief) to support this claim.
However, Respondent’s motion for the court to take judicial notice was denied
and it is therefore inappropriate for Respondent to rely on its failed motion
as authority. In any event, it is clear that Appellant never made that
statement. What the Appellant did say was “…notwithstanding the filing of the
untimely affidavit of
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judgment, there is no evidence
in the record that the untimely affidavit of judgment was recorded anywhere in
compliance with NRS 17.150(4).” Opening
Brief at p. 11 [emphasis added]. This is an accurate statement because
there is no evidence in the record on appeal proving that the Appellant
recorded an affidavit of judgment and Respondent does not cite to any portion
of the record to demonstrate that the affidavit was in fact recorded. See also Opening Brief at p. 5 (“In fact, the
record on appeal contains no evidence that such an affidavit of judgment was
recorded at the time the default judgment was recorded.”)
Finally, the Respondent argues
that the legislative history of NRS 17.150(4) does not support Appellant’s
interpretation of the statute. Respondent contends that the legislative history
demonstrates that the amendments to the statute were designed to protect
consumers. Appellant agrees. Opening
Brief at 23-24.[2] The legislative
history demonstrates that the purpose of the amendments was to protect or
benefit clerks and recorders, judgment debtors and consumers. The legislature
sought to ensure that a particular judgment be accurately tied to a particular
piece of property, and to prevent situations where a judgment lien would
wrongfully burden the property of an innocent third person. For example,
subsection (4) of the statute
_____________________
[2] “Again, Carson City Clerk-Recorder Glover
testified that the purpose of the bill would be to ensure that the information
in the affidavit of judgment is for the right person and the right piece of
property and that the information was on all necessary documents to record a
lien. He testified that the amended provisions would benefit consumers.”
-15-
requires, among other things,
that the affidavit of the judgment creditor state, based upon personal
knowledge, that the property being liened is actually owned by the judgment
debtor. Respondent does not explain how this public policy could be advanced or
that the intent of the legislature could be realized by allowing a judgment
creditor to record the affidavit of judgment several years after recording the
judgment, or not recording the affidavit at all. Respondent merely claims that
he knew who owned the property at issue. Answering Brief at p. 23-24. However,
there is no evidence in the record that Respondent demonstrated to the public
at large that the property being liened was actually owned by the judgment
debtor because Respondent simply failed to record his affidavit of judgment at
the time he recorded the judgment itself.[3]
CONCLUSION
For the reasons stated above,
Appellant urges this Court to reverse the order of the District Court that
allowed execution on a judgment for which no lien was perfected in the manner
prescribed by NRS 17.150(4) because no affidavit of judgment was recorded.
Appellant requests that in doing so, the Court clarify that
___________________
[3]
Respondent contends that the legislative history’s “commentary” reflects an
acknowledgment that recording the judgment alone creates a valid lien and NRS
17.150(4) is being created to clarify the identity of the judgment debtor “(if
known)”. Respondent does not cite to the record or the legislative history to
support this claim and, even if true, Respondent does not explain why the
legislature did not intend for the affidavit to be recorded at the same time as
the judgment.
-16-
perfection of a lien on real
property by judgment creditors requires strict compliance with the timing and
recording provisions of NRS 17.150(4).
Respectfully
submitted this 5th day of November, 2021.
OSHINSKI
& FORSBERG, LTD.
By
/s/ Mark Forsberg, Esq.
Mark
Forsberg, Esq., NSB 4265
Rick
Oshinski, Esq., NSB 4127
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CERTIFICATE OF
COMPLIANCE
1. I hereby certify that this brief complies
with the formatting requirements of NRAP 32(a)(4), the typeface requirements of
NRAP 32(a)(5) and the type style requirements
of NRAP 32(a)(6) because:
1. This brief has been prepared in a
proportionally spaced typeface using Microsoft Word in 14-point Times New Roman
font.
2. I further certify that this brief complies with
the page or type volume limitations of NRAP 32(a)(7) because, excluding the
parts of the brief exempted by
NRAP 32(a)(7)(C), it is: proportionately spaced,
has a typeface of 14 points or more and contains 4631 words.
3. Finally, I hereby certify that I have read
this appellate brief, and to the best of my knowledge, information, and belief,
it is not frivolous or interposed for any improper purpose. I further certify
that this brief complies with all applicable Nevada Rules of Appellate
Procedure, in particular NRAP 28(e)(1), which requires every assertion in the
brief regarding matters in the record to be supported by a reference to the
page and volume number, if any, of the transcript or appendix where the matter
relied on is to be found. I understand that I may be subject to sanctions in
the event that the accompanying brief is not in conformity with the
requirements of the Nevada Rules of Appellate Procedure.
Dated
this 5th day of November, 2021.
OSHINSKI
& FORSBERG, LTD.
By
/s/ Mark Forsberg, Esq.
Mark
Forsberg, Esq., NSB 4265
Rick
Oshinski, Esq., NSB 4127
CERTIFICATE OF SERVICE
I
hereby certify that I am an employee of Oshinski & Forsberg, Ltd., and that
on November 5, 2021, I filed a true and correct copy of the foregoing Appellant’s
Reply Brief with the Clerk of the Court through the Court’s CM/ECF system,
which sent electronic notification to all registered users as follows:
Arthur
A. Zorio
Matthew
Francis
Brownstein
Hyatt Farber Schreck
Attorneys
for Respondent
I
declare under penalty of perjury that the foregoing is true and correct.
Executed
on this 5th day of November, 2021, in
/s/
Linda Gilbertson
Linda
Gilbertson