Eighth Judicial Dist. Ct. v. Fox ( 2015 )

 Marshals Association. Clark County refused the Step 2 hearing request,
asserting that it was not a party to the EJDC's memorandum of
understanding.
Fox filed suit, asking the district court to compel Clark County
to abide by the memorandum of understanding. Clark County moved to
dismiss, arguing that it was not Fox's employer. The EJDC intervened
and agreed with Clark County that it, not the county, employed the
deputy marshals. The district court decided in favor of Fox, finding that
Clark County and the EJDC were de facto co-employers, • that Clark
County gave the EJDC apparent authority to bind Clark County to the
memorandum of understanding, and that due process requires that Fox
receive a Step 2 hearing. Both EJDC and Clark County filed separate
appeals.
The district court reasoned that Clark County could be bound
to the memorandum of understanding signed by the EJDC because Clark
County's letter of agreement relinquished authority to the EJDC. The
district court thus concluded that due process requires Clark County to
provide Fox with a Step 2 hearing or its functional equivalent.
We fail to see how Clark County is bound by the memorandum
of understanding. Clark County was not a party to the memorandum. It
therefore cannot be held liable for not complying with the memorandum's
provisions. See Cnt,y. of Clark v. Bonanza No. 1, 96 Nev. 643, 648-49, 615
P.2d 939, 943 (1980) ("As a general rule, none is liable upon a contract
except those who are parties to it.").
The district court's conclusions of law briefly mention a theory
of liability based on apparent authority. Apparent authority prevents a
party from denying agency when its conduct has cloaked the agent with
SUPREME COURT
OF
NEVADA
2
(l) 1947A Ae9
apparent authority to act on the party's behalf. Tsouras v. Sw. Plumbing
& Heating, 94 Nev. 748, 751, 587 P.2d 1321, 1323 (1978).
Here, the EJDC is not an agent, real or apparent, of Clark
County. Even assuming that Clark County is a co-employer, which we
decline to decide today, Clark County's letter of understanding did not
give the EJDC authority to bind Clark County into another agreement. In
the letter of understanding, "the court" adopted the Clark County Merit
Personnel System, but Clark County did not give any authority to the
court.
The record does not show that Clark County gave real or
apparent authority to the EJDC to bind Clark County to the memorandum
of understanding. The district court's order does not explain how, without
this apparent authority, Clark County could be bound by the
memorandum of understanding to which it did not agree.
Fox should have asked the EJDC to proceed with his post-
termination hearings under the memorandum of understanding. If the
EJDC was not receptive to such a request, he could have sued the EJDC to
enforce any right to a Step 2 hearing that he might have under the
memorandum. As it is, Fox sued Clark County to enforce an agreement to
which Clark County was not a party. But the record does not show how
Clark County could be liable under this agreement. The district court
therefore erred by granting Fox's motion for summary judgment.
Fox's NRS 289.120 claim
Fox argues, in his petition for rehearing, that this court should
remand the case because his NRS 289.120 claim was not resolved. He
asserts that the district court dismissed his claim without prejudice
because he did not yet exhaust his administrative remedies. He argues
SUPREME COURT
OF
NEVADA
3
(0) 1947A e
that, now that he does not have an administrative remedy, the case should
be remanded for the district court to consider his NRS 289.120 claim. We
agree. Therefore, we amend our previous order reversing the district
court's order in its entirety and instead reverse in part the district court's
order granting summary judgment and remand for further proceedings on
the NRS 289.120 claim. 2 Wood v. Safeway, Inc., 121 Nev. 724, 729, 121
P.3d 1026, 1029 (2005) (stating that this court reviews summary
judgments de novo). Accordingly, we •
ORDER the judgment of the district court REVERSED IN
PART AND REMAND this matter to the district court for proceedings
consistent with this order. We DENY Fox's petition for a rehearing.
C.J.
Hardesty
Parraguirre Douglas
cyae
Saitta
2 The remaining claims in Fox's petition lack merit.
SUPREME COUFtT
OF
NEVADA
4
(0) 1947A
cc: Chief Judge, The Eighth Judicial District Court
Hon. Charles M. McGee, Senior Judge
Kamer Zucker Abbott
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
Law Office of Daniel Marks
Eighth Judicial District Court Clerk
SUPREME COURT
OF
NEVADA
5
((I) 1947A e■