Kroll v. Incline Village Gid ( 2014 )

 beach property to IVGID contained a restrictive covenant limiting use of
the beaches to people who owned property within the geographic
boundaries of 1968 IVGID. In 1987, IVGID codified the restrictive
covenant by adopting IVGID Ordinance 7, § 62. In 1995, Washoe County
merged IVGID with the Crystal Bay General Improvement District
(CBGID), a neighboring general improvement district. 2 Pursuant to the
restrictive covenant and IVGID Ordinance 7, § 62, former CBGID
residents do not have access to the IVGID beaches.
Appellant Steven Kroll owns property within the former
CBGID. Because Kroll does not own property within the geographic
boundaries of 1968 IVGID, he has been denied access to the IVGID
beaches. Kroll filed a complaint in state district court seeking access to
the IVGID beaches. 3 Kroll's second cause of action was for declaratory
relief seeking a declaration that IVGID Ordinance 7, § 62 violates Nevada
law. The district court granted summary judgment in IVGID's favor on all
of [(roll's state law claims, including his declaratory relief claim.
Kroll now appeals the district court's order granting summary
judgment in IVGID's favor on Kroll's second cause of action for declaratory
relief. Kroll argues: (1) the district court erred in granting IVGID's motion
for summary judgment after finding that IVGID Ordinance 7, § 62 is valid
2 The merged general improvement district retained the name
IVGID.
3 There was a federal component to this case. The federal district
court granted summary judgment in IVGID's favor on Kroll's federal law
claims and remanded the case to state district court for resolution of
Kroll's state law claims.
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under Nevada law, and (2) the district court abused its discretion when it
considered the affidavits of two IVGID witnesses in support of IVGID's
motion for summary judgment.
Standard of Review
"This court reviews a district court's grant of summary
judgment de novo, without deference to the findings of the lower court."
Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005).
"Summary judgment is appropriate and 'shall be rendered forthwith' when
the pleadings and other evidence on file demonstrate that no 'genuine
issue as to any material fact [remains] and that the moving party is
entitled to a judgment as a matter of law." Id. (alteration in original)
(quoting NRCP 56(c)). "This court has noted that when reviewing a
motion for summary judgment, the evidence, and any reasonable
inferences drawn from it, must be viewed in a light most favorable to the
nonmoving party." Id.
This appeal also raises questions of statutory interpretation.
Statutory interpretation is a question of law subject to de novo review. In
re Candelaria, 126 Nev. , 245 P.3d 518, 520 (2010). This court
attributes the plain meaning to a statute that is not ambiguous. Id. An
ambiguity arises where the statutory language lends itself to two or more
reasonable interpretations. Id.
Kroll sets forth insufficient legal authority supporting his argument that
1VGID Ordinance 7, ,¢ 62 is invalid under Nevada law
We conclude that Kroll fails to provide this court with
sufficient authority supporting his arguments that IVGID Ordinance 7, §
62 violates Nevada law. NRAP 28(a)(9)(A) requires that appellate briefs
contain "appellant's contentions and the reasons for them, with citations
to the authorities and parts of the record on which the appellant relies." If
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an appellant fails to provide this court with sufficient citations to
authority to support its contentions, that argument cannot prevail. Smith
v. Timm, 96 Nev. 197, 201-02, 606 P.2d 530, 532 (1980) (stating the court
was unable to find error because the appellant had failed to provide
adequate legal authority).
Kroll sets forth insufficient legal authority supporting his argument
that IVGID Ordinance 7, § 62 exceeds IVGID's statutory authority
NRS 318.050 authorizes Nevada counties to create general
improvement districts (GID's). NRS Chapter 318 enumerates the powers
Nevada counties can extend GID's. See NRS 318.077; NRS 318.143. A
GID can then use bylaws to exercise authority granted to it by the county
as long as the bylaws do not "conflict with the Constitution and laws of the
State." NRS 318.205. Pursuant to NRS 318.143, Washoe County gave
IVGID the authority to "acquire, construct, reconstruct, improve, extend
and better lands, works, systems and facilities for public recreation."
Washoe County Ordinance 97 (emphasis added). 4 Kroll argues that the
phrase "public recreation" requires that the IVGID beaches be open to the
general public. Kroll argues IVGID Ordinance 7, § 62 exceeds IVGID's
statutory authority because it excludes the general public from using the
IVGID beaches. However, Kroll cites almost no legal authority supporting
his argument.
To support his argument, Kroll simply cites In re Candelaria,
126 Nev. at ,245 P.3d at 520 (holding "[i]f a statute's language is clear
`While Washoe County Ordinance 97 uses the phrase "facilities for
public recreation" (emphasis added), NRS 318.143(1) simply refers to
"facilities for recreation."
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and the meaning plain, this court will enforce the statute as written"), and
the definition of "private" from a 1979 edition of Black's Law Dictionary.
Black's Law Dictionary 1076 (5th ed. 1979) (defining "[p]rivate" as
"[a]ffecting or belonging to private individuals, as distinct from the public
generally"). It should be noted that the latest edition of Black's Law
Dictionary does not use the phrase "public generally" when defining
"[p]rivate." 5 Black's Law Dictionary 1389 (10th ed. 2014). We conclude
that these two sources alone are insufficient to support Kroll's broad
definition of the phrase "public recreation." Accordingly, because Kroll
sets forth insufficient legal authority supporting his argument that IVGID
Ordinance 7, § 62 exceeds IVGID's statutory authority, we conclude his
argument must fail.
Kroll sets forth insufficient legal authority supporting his argument
that IVGID Ordinance 7, 5SI 62 conflicts with Washoe County
Ordinance 928
Washoe County Ordinance 928 merged IVGID with CBGID.
Ordinance 928 states:
The surviving District as hereby created shall
have all the powers and purposes of the former
CBGID as provided in Ordinance No. 199 as
referenced herein and all the powers and purposes
of IVGID as provided in Ordinance No. 97, as
amended, and. . . referenced herein.
Kroll argues IVGID Ordinance 7, § 62 conflicts with Washoe County
Ordinance 928 because the county intended to give former CBGID
5 The latest edition of Black's Law Dictionary defines "private" as
"[o]f, relating to, or involving an individual, as opposed to the public or
government." Black's Law Dictionary 1389 (10th ed. 2014).
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residents the same rights as former IVGID residents, including beach
access rights. 6 To support his argument, Kroll simply refers to the
language of Ordinance 928 itself.
However, considering the plain language of Ordinance 928
alone does not support the conclusion that Washoe County intended to
invalidate IVGID Ordinance 7, § 62 and the beaches' restrictive covenant.
As we previously stated, the "powers and purposes" of general
improvement districts are enumerated in NRS Chapter 318. See NRS
318.077; NRS 318.116; NRS 318.143. We conclude that the plain language
of Washoe County Ordinance 928 simply extends the governing body of
the merged improvement district the same authority Washoe County
previously granted IVGID and CBGID. The plain language of Ordinance
928 does not speak to individual rights of residents, and it certainly does
not show an intent to invalidate IVGID Ordinance 7, § 62 and the beaches'
restrictive covenant. Accordingly, because Kroll sets forth insufficient
legal authority supporting his argument that IVGID Ordinance 7, § 62
conflicts with Washoe County Ordinance 928, we conclude his argument
must fail.
6 IVGID argues that this appeal is the first time Kroll raised the
issue of Ordinance 928, However, Kroll's second amended complaint
alleges a violation of NRS 318.205 which states GID bylaws cannot conflict
with Nevada law; in other words, that IVGID bylaw Ordinance 7, § 62
cannot conflict with the NRS or Washoe County ordinances. Accordingly,
we conclude that this court can consider Kroll's argument that IVGID
Ordinance 7, § 62 conflicts with Ordinance 928.
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Kroll sets forth insufficient legal authority supporting his argument
that IVGID violates Article 10, § 1 of the Nevada Constitution
Article 10, § 1 of the Nevada Constitution provides for a
"uniform and equal rate of assessment and taxation." Kroll argues IVGID
Ordinance 7, § 62 violates Article 10, § 1 of the Nevada Constitution
because former CBGID residents are assessed a different recreation fee
than 1968 IVGID residents with beach access. To support his argument,
Kroll cites other, seemingly unrelated portions of the Nevada Constitution.
For example, Kroll cites Article 1, § 2 of the Nevada Constitution which
provides "[a]ll political power is inherent in the people[.] Government is
instituted for the protection, security and benefit of the people," but fails
to coherently explain how this relates to his Article 10, § 1 uniform
taxation argument. Kroll further cites Article 4, § 25 of the Nevada
Constitution which provides "[t]he Legislature shall establish a system of
County and Township Government which shall be uniform throughout the
State," without coherently explaining how this relates to Article 10, § 1. It
appears, however, that the crux of Kroll's constitutional argument is that
the former CBGID residents are treated unfairly and have less of a voice
than 1968 IVGID residents, which violates the Nevada Constitution.
However, Kroll fails to set forth sufficient legal authority
supporting his argument that IVGID Ordinance 7, § 62 violates Article 10,
§ 1 of the Nevada Constitution. [(roll provides no applicable caselaw to
support his argument, and the other Nevada constitutional provisions
Kroll cites are not relevant to his Article 10, § 1 argument. Instead, it
appears that Kroll is using Article 10, § 1 as a means to make an equal
protection argument. However, Kroll's equal protection argument has
already been disposed of by the federal district court in this case.
Accordingly, because Kroll sets forth no applicable legal authority
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supporting his Nevada constitutional argument, we conclude his argument
must fail.
The district court did not abuse its discretion by considering the affidavits
of Gerald Eick and Ramona Cruz when granting summary judgment in
IVGID's favor
Kroll argues the district court should not have considered the
affidavits of IVGID witnesses Gerald Flick and Ramona Cruz when
granting summary judgment in IVGID's favor. Kroll argues the affidavits
were legally insufficient under NRCP 56(e) because (1) the affiants based
their testimony on a review of IVGID records and therefore lacked
personal knowledge, (2) IVGID did not attach all of the documents the
affiants reviewed in preparing their testimony to their affidavits, and (3)
the affidavits contained statements that were technically incorrect. We
disagree.
"[This court] review[s] a district court's decision to admit or
exclude evidence for abuse of discretion, and will not interfere with the
district court's exercise of its discretion absent a showing of palpable
abuse. M.G. Multi-Family Dev., L.L.C. v. Crestdale Assocs., Ltd., 124 Nev.
901, 913, 193 P.3d 536, 544 (2008).
A review of relevant business records can be the basis for personal
knowledge in an affidavit
Affidavits offered in support of a motion for summary
judgment must be made on personal knowledge. NRCP 56(e). A review of
relevant business records can be the basis for personal knowledge in
affidavits. Vote v. United States, 753 F. Supp. 866, 868 (D. Nev. 1990)
(holding an IRS officer's review of a taxpayer's file met the "personal
knowledge" requirement of FRCP 56(e)); see also Washington Cent. R.R.
Co., Inc. v. Nat'l Mediation Bd., 830 F. Supp. 1343, 1353 (E.D. Wash.
1993) (holding "personal knowledge can come from review of the contents
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of files and records."). Moreover, "{personal knowledge [can] be inferred
from a[n] [affiant's] position." In re Kaypro, 218 F.3d 1070, 1075 (9th Cir.
2000).
Here, Eick and Cruz had personal knowledge of the facts
testified to in their affidavits because their testimony was based on a
review of relevant IVGID business records. Both Eick and Cruz gave
affidavit testimony describing IVGID's purchase of the beaches in 1968
and both testified that former CBGID residents have not been assessed for
the purchase of or improvements to the IVGID beaches. Eick and Cruz
premised their testimony on "my review of the records of IVGID." 7 We
conclude that because Eick and Cruz gave affidavit testimony based on
their review of IVGID business records, they had sufficient personal
knowledge as required by NRCP 56(e).
NRCP 56(e) does not require that IVGID attach every document Eick
and Cruz reviewed in preparation for their affidavit testimony
Kroll argues that NRCP 56(e) required IVGID to attach every
document Eick and Cruz reviewed in preparation for their testimony to
their affidavits. We disagree.
When documents are referenced in an affidavit, NRCP 56(e)
commands that "[s]worn or certified copies" of the documents be attached
to the affidavit. NRCP 56(e); Daugherty v. Wabash Life Ins. Co., 87 Nev.
32, 38, 482 P.2d 814, 818 (1971) (holding that "[w]hen written documents
7 While
in federal court, IVGID filed a motion which relied on an
affidavit from Cruz in which she stated she was testifying "to the best of
my recollection." However, during the state court action, IVGID
submitted a clarifying affidavit from Cruz in which she stated she was
testifying based on her "review of the records of IVGID."
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are relied on, they must be exhibited in full"). In Daugherty, a motion for
summary judgment was filed and ultimately granted. 87 Nev. at 36, 482
P.2d at 817. The motion was supported by an affidavit which referenced a
specific insurance policy that was at issue in the case. Id at 38, 482 P.2d
at 818. However, because the moving party did not attach a copy of the
insurance policy to the affidavit, this court held that the affidavit was
insufficient under NRCP 56(e). Id.
Here, however, because the affidavits of Eick and Cruz did not
reference any specific documents, there was nothing for IVGID to attach to
the affidavits. Unlike in Daugherty, where the affiant referenced a
specific insurance policy, here, Eick and Cruz simply state that from their
review of IVGID records, nothing indicated that former CBGID residents
were assessed for the beaches. Moreover, under NRCP 56(f), Kroll could
have requested that the district court allow additional time for discovery
so that Kroll could review the IVGID records on which Eick and Kroll
based their testimony. See NRCP 56(f). Kroll failed to do so. Accordingly,
we conclude that because the affidavits of Eick and Cruz do not reference
any specific documents, NRCP 56(e) did not require that IVGID attach all
of the records Eick and Cruz reviewed in preparation for their testimony
to their affidavits.
The statements in Eick's and Cruz's affidavits that were technically
incorrect were immaterial to the district court's decision granting
summary judgment in IVGID's favor
Kroll argues that the affidavits of Eick and Cruz were legally
insufficient because they contained statements that are technically
incorrect. We disagree.
Summary judgment is appropriate when the evidence shows
"there is no genuine issue as to any material fact and that the moving
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party is entitled to a judgment as a matter of law." NRCP 56(c); Wood v.
Safeway, Inc., 121 Nev. 724, 731, 121 P.3d 1026, 1031 (2005). Material
facts are those which may affect the outcome of the case. Wood, 121 Nev.
at 730, 121 P.3d at 1030.
Here, the statements in Eick and Cruz's affidavits that were
technically incorrect were immaterial to the district court's decision to
grant summary judgment in IVGID's favor. First, Eick's affidavit stated
"at all times since IVGID purchased the IVGID Beaches, the IVGID
Beaches have been used for outdoor recreation." Kroll argues that
statement is technically incorrect because IVGID Policy and Procedure
136 opens the beaches' parking lots and sidewalks to the general public for
free speech purposes. Kroll argues that exercising free speech is not
"outdoor recreation" so Eick's statement is false. However, Kroll fails to
explain how this discrepancy affects the district court's finding that IVGID
Ordinance 7, § 62 is valid under Nevada law. We conclude that this
discrepancy is not material because the beaches' parking lots and
sidewalks being open for free speech has no bearing on the outcome of this
case.
Second, both Eick's and Cruz's affidavits stated "owners of real
property annexed to or merged into IVGID after 1968 have not been
assessed for the purchase of or improvements to the IVGID Beaches."
Kroll argues that these statements are technically incorrect because Kroll
owned real property within the boundaries of 1968 IVGID from 1982-94,
during which time he was assessed fees for the beaches. 8 However, it is
8 In
the federal portion of this case, Cruz's affidavit stated "Steven
Kroll has not been assessed for the purchase of the IVGID Beaches or any
continued on next page . . .
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undisputed that Kroll does not currently own real property within the
boundaries of 1968 IVGID, nor did he own such property when CBGID
merged with IVGID in 1995. Kroll does not appear to argue that he
should now have beach access because he was assessed for the beaches
from 1982-94; instead, Kroll simply argues that Eick's and Cruz's
affidavits contain false testimony rendering them legally insufficient to
support a motion for summary judgment. However, we conclude that
these discrepancies are not material because it is undisputed that Kroll
does not currently own property within the boundaries of 1968 IVGID, nor
did he own such property when CBGID merged with IVGID in 1995.
Because Kroll's former ownership of 1968 IVGID property is immaterial to
the case at hand, Eick's and Cruz's affidavits were still legally sufficient
despite the discrepancies.
In sum, we conclude that the affidavits of Eick and Cruz were
legally sufficient under NRCP 56(e). Accordingly, the district court did not
abuse its discretion by relying on the affidavits in granting summary
. . . continued
of the improvements made to the IVGID Beaches." Kroll points out that
this statement is incorrect because he was assessed a fee for the beaches
from 1982-94 when he owned property within 1968 IVGID. However, in
the state court case, Cruz provided a clarifying affidavit in which she
stated "Steven Kroll has not been assessed for the purchase of the IVGID
Beaches or any of the improvements made to the IVGID Beaches as a
result of his ownership of real property annexed to or merged into IVGID
after 1968," which is a correct statement.
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judgment in favor of IVGID. 9 Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Hardesty
t CtAsk i2-5%
Parraguirre
f ta-a J.
Douglas
Lut J.
Cherr
, J.
Saitta
9 We have considered the parties' remaining arguments and conclude
they are without merit.
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cc: Hon. David A. Hardy, District Judge
David Wasick, Settlement Judge
Sterling Law, LLC
Steven E. Kroll
Thorndal Armstrong Delk Balkenbush & Eisinger/Reno
Washoe District Court Clerk
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