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NRCP 68 Offers of Judgment and Claim Preclusion

Desert Path.jpgOn October 5, 2017, in Mendenhall v. Tassinari, Case No. 68053, the Nevada Supreme Court answered the question of whether claim preclusion bars a party from subsequently filing claims based on fraud discovered during the ten-day irrevocable period for an offer of judgment.  The Court held that claim preclusion would apply if the three-part test for claim preclusion set forth in Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1054, 194 P.3d 709, 713 (2008) is met: (1) the parties or their privies are the same; (2) the final judgment is valid; and, (3) the subsequent action is based on the same claims or any part of them were or could have been brought in the first case.  The Court in Mendenhall found that claim preclusion did apply based on the three-part test and the fact that the offer of judgment was timely accepted.  The Court held that the proper avenue for relief in such a situation is through the filing of a NRCP 60(b) motion for relief from a final judgment or order, as alluded to in Nava v. Second Judicial District Court, 118 Nev. 396, 46 P.3d 60 (2002).  Unfortunately, the appellant/defendant failed to file a NRCP 60(b) motion after the offer of judgment was accepted.  The Court noted that claim preclusion may not apply if the offer of judgment does not "evince an intent by the parties to prevent a broad set of claims from being raised in a second action."  Unfortunately for appellants/defendants, the Court found that the broad wording of the offer of judgment evinced an intent for the offer to apply broadly to "any related or potential claims" that could have been asserted "between and among" the parties.

Where to seek support in the claim and delivery process

Many creditors in Nevada face stressful situations due to loan defaults. While it's possible in many circumstances to sue their debtors, creditors may also use alternative means for satisfying such debts, such as the claim and delivery process. Some states refer to the search and seizure of collateral property as the replevin process. In this state, secured creditors can obtain writs of possession from the court to authorize sheriffs or constables to take possession of personal property that borrowers used as collateral to acquire loans.

Verbal contracts are legal, but can you prove them?

Do you remember the old days when businesspeople in Nevada, and just about any town in America, would discuss a few issues, iron out their own details, smile, shake hands and seal the deal? Nowadays, you hear contract advisers saying it's best to get everything in writing. This isn't because verbal agreements aren't legally enforceable. They absolutely are. However, try to prove one. It's possible, in certain situations, to do so, but it's usually quite difficult.

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Law Office of Hayes & Welsh

Law Office of Hayes & Welsh
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