A CAB, LLC v. MURRAY , 2021 NV 84 ( 2021 )

137 Nev., Advance Opinion 04
IN THE SUPREME COURT OF THE STATE OF NEVADA
A CAB, LLC; AND A CAB SERIES, LLC, No. 77050
Appellants,
vs.
MICHAEL MURRAY; AND MICHAEL
RENO, INDIVIDUALLY AND ON
BEHALF OF ALL OTHERS SIMILARLY
SITUATED,
Respondents.
Appeal from a summary judgment and post-judgment orders in
a rninimum wage class action. Eighth Judicial District Court, Clark
County; Kenneth C. Cory, Judge.
Affirmed in part, reversed in part, and remanded.
Hutchison & Steffen, PLLC, and Michael K. Wall, Las Vegas; Rodriguez
Law Offices, P.C., and Esther Rodriguez, Las Vegas,
for Appellants.
Leon Greenberg Professional Corporation and Leon Greenberg, Las Vegas,
for Respondents.
BEFORE THE SUPREME COURT, EN BANC.'
'The Honorable Kristina Pickering, Justice, voluntarily recused
herself from participation in the decision of this matter.
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OPINION
By the Court, STIGLICH, J.:
Under the Minimum Wage Act (MWA) of the Nevada
Constitution, employers are required to pay their employees minimum
wage and to annually notify employees of the minimum wage rate.
Employers are also statutorily required to maintain records of wages and
hours worked by employees and to readily provide that information to
employees upon request.
Respondents Michael Murray and Michael Reno, the named
representatives in this class action, were taxi drivers who brought suit
against their former employer, appellants A Cab, LLC, and A Cab Series,
LLC (collectively A Cab),2 and its owner, alleging A Cab failed to pay them
minimum wage. The district court severed the claims against A Cab's
owner, Creighton Nady, and entered summary judgment for the drivers.
A Cab appeals from the summary judgment, challenging certain
interlocutory orders as well, and from several post-judgment orders.
We affirm in part, reverse in part, and remand. We must first
consider subject matter jurisdiction, and after doing so, we conclude this
matter was properly in front of the district court because plaintiffs in a class
action may aggregate damages for jurisdiction. Accordingly, we overrule
Castillo v. United Federal Credit Union, 134 Nev. 13, 409 P.3d 54 (2018), to
the extent that it held to the contrary.
2As discussed in this opinion, the parties strongly disagree as to
whether "A Cab, LLC," and "A Cab Series, LLC," are separate entities or
one and the same. Given the judgment appealed to this court lists them
separately, we do so as well here.
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For the reasons discussed in this opinion, we further conclude
that (1) the district court erred in tolling the statute of limitations because
it incorrectly interpreted the MWA notice requirement, (2) damages were
reasonably calculated using approximation evidence, (3) claims against
A Cab, LLC's owner were properly severed, (4) the attorney fees award must
be reconsidered for reasonableness, (5) the award of costs, including expert
witness fees, must be reconsidered under the proper standards, (6) the
judgment was properly amended to include the new name of A Cab, LLC,
and (7) the district court erroneously denied a motion to quash a writ of
execution without conducting an evidentiary hearing.
BACKGROUND
In 2006, Nevada voters amended the state constitution by
enacting the MWA. Nev. Const. art. 15, § 16. The MWA requires, in part,
that employers pay employees the minimum wage set forth therein, as
adjusted yearly. Id. at § 16(A). Following publication of the yearly
adjustment, employers "shall provide written notification of the rate
adjustments to each of [their] employees." Id.
Murray3 and Reno's 2012 district court class action complaint
against A Cab and its owner alleged that A Cab failed to pay drivers the
minimum wage under the MWA and compensation due to former employees
3Due to a clerical error, Murray was listed as Michael Murphy in the
caption of the original complaint, which was corrected in the first amended
complaint. Although A Cab alleged below and on appeal that "Michael
Murray" and "Michael Murphy" are two different men, we have been
provided with no evidence to support that contention, and it appears the
correct parties are involved. A district court can correct a misnomer in the
caption at any time, "so long as it is not misleading." Detwiler v. Eighth
Judicial Dist. Court, 137 Nev., Adv. Op. 18, 486 P.3d 710, 716 (2021)
(internal quotation marks omitted).
3
under NRS 608.040.4 The drivers sought compensatory damages, injunctive
and equitable relief, and punitive damages. Although taxicab drivers were
exempt from statutory minimum wage protections when the complaint was
filed, in 2014, we clarified that taxicab drivers were afforded minimum wage
protections under the MWA. Thomas v. Nev. Yellow Cab Corp., 130 Nev.
484, 327 P.3d 518 (2014).
In 2015, A Cab offered to settle with Murray and Reno for
$7,500 and $15,000, respectively, but they did not accept the offers. Also in
2015, the drivers amended their complaint to add Creighton Nady (the
principal of A Cab) as a defendant. Two new claims were added specifically
against Nady: one for civil conspiracy, concert of action, and liability as the
alter ego of the corporate defendants; and the other for unjust enrichment.
Thereafter, the district court certified the class as "all persons employed by
any of the defendants as taxi drivers in the State of Nevada at any[ ltime
from July 1, 2007 [,1 through December 31, 2015." Additionally, the district
court equitably tolled the statute of limitations for drivers who were
employed by A Cab on the annual minimum wage notification date because
it found that A Cab did not provide proper annual notice for the minimum
wage rate.
Throughout the litigation, the parties disputed what evidence
should be provided to determine damages. In theory, minimum wage
damages are simple to calculate: multiply the hours worked in a pay period
by the applicable minimum hourly wage to calculate the minimum amount
due, then subtract the actual pay received to determine whether a
deficiency exists. For the time period between January 1, 2013, and
4Inissuing the summary judgment, the district court dismissed the
NRS 608.040 claims without prejudice.
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December 31, 2015, that is what occurred. A Cab electronically provided
the drivers with all relevant data points, and the damages calculations were
easily performed, compiled, and submitted by the drivers to the court as
proof of damages. For the period between July 1, 2007, and January 1, 2013,
however, A Cab provided the information in a different format. The drivers
were given data, in electronic format, for the wages paid and the number of
shifts worked. A Cab failed to provide computed hours worked data,
however. Instead, A Cab provided copies of the drivers handwritten
"tripsheets," which reflected the hours actually worked during each shift.
Extracting the needed hours-per-shift data from these tripsheets would
have required extensive (and expensive) effort.
The district court found that supplying the hours-worked
information only in the form of the tripsheets constituted noncompliance
with the statutory requirements for employer record-keeping.
Consequently, the district court appointed a special master to calculate the
hours-per-shift information from the tripsheets and ordered A Cab to pay
the special master's fees. A Cab failed to meet deadlines the district court
set to pay the special master, however, so the drivers proved damages for
the pre-2013 time period another way. The drivers' expert calculated the
average hours per shift using the data from the 2013-2015 time period and
multiplied that estimated average by both the number of shifts per each pay
period and the minimum wage per hour to determine the wages that should
have been paid for each pay period. The amount actually paid per period
was subtracted to determine the deficiency. For this period, the only
estimated data point was the hours-per-shift. Against A Cab's objection, the
district court accepted the drivers' proof of damages.
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The district court then severed the claims against Nady and
granted summary judgment against A Cab, determining that the drivers
were entitled to damages for A Cab's failure to pay minimum wages. The
parties engaged in lengthy post-judgment motion practice. A Cab moved to
reconsider and to dismiss for lack of subject matter jurisdiction, arguing
that Murray and Reno had failed to demonstrate their claims met the
minimum threshold amount for district court jurisdiction under this court's
decision in Castillo v. United Federal Credit Union, 134 Nev. 13, 16, 409
P.3d 54, 57 (2018), and that there was no longer a claim for injunctive relief.
The court denied the motions to dismiss and for reconsideration, concluding
it did not believe it was devoid of jurisdiction in the matter. The drivers
moved to amend the judgment to include "A Cab Series, LLC," as a
defendant and for costs and attorney fees. The court granted these motions.
A Cab appeals the summary judgment and the post-judgment orders.
DISCUSSION
District courts have original jurisdiction over class actions when the
aggregate amount in controversy exceeds the statutory threshold
A Cab argues that the district court lacked subject matter
jurisdiction because no individual class member sought damages in an
amount that met the statutory threshold. It argues that, per this court's
decision in Castillo, individual class members claims may not be
aggregated to establish district court jurisdiction. See Castillo v. United
Fed. Credit Union, 134 Nev. 13, 16, 409 P.3d 54, 57 (2018). A Cab further
6
contends that the district court did not have jurisdiction based on the
drivers request for injunctive relief.5
In Nevada, justice courts have original jurisdiction over most
actions seeking to recover less than a statutory amount-in-controversy
threshold, which, when this action was filed in 2012, was $10,000.6 See
2011 Nev. Stat., ch. 253, § 54, at 1136 (amending NRS 4.370(1) and taking
effect July 1, 2011); Castillo, 134 Nev. at 16, 409 P.3d at 57. District courts
have original jurisdiction over matters in which the amount in controversy
is greater than this statutory threshold. See Nev. Const. art. 6, § 6(1).
Historically, whether aggregation of class claims to meet the
statutory threshold to establish district court jurisdiction was permitted
under the Nevada Constitution had never been meaningfully challenged.
And NRCP 23—setting out the rules for class actions—was silent on the
issue prior to its amendment in 2019. In 2018, however, the ability to
aggregate class claims to establish jurisdiction was directly challenged and
heard by this court in Castillo.
In Castillo, plaintiffs in a consumer protection case sought to
aggregate their claims to meet the statutory threshold amount to establish
jurisdiction in the district court. 134 Nev. at 14, 409 P.3d at 56. The
defendant filed a motion to dismiss, arguing the district court did not have
jurisdiction because each plaintiff failed to prove that they were
individually entitled to damages in excess of the statutory threshold. Id. at
5In light of this disposition, we need not reach the issue of whether
subject matter jurisdiction was proper as a result of the request for
injunctive relief.
6The statutory amount has since been raised to $15,000. 2015 Nev.
Stat., ch. 200, § 2.2, at 945.
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15, 409 P.3d at 56. The district court determined the plaintiffs could not
aggregate their claims and dismissed the case. Id. The plaintiffs then
appealed to this court. Id. Ultimately, a panel of this court reversed the
district court's decision and remanded the case, but did so on the basis that
the district court had jurisdiction through the plaintiffs request for
injunctive relief. Id. at 19, 409 P.3d at 59.
However, in Castillo, the court also considered the aggregation
issue and concluded that class claims could not be aggregated to establish
district court jurisdiction. Id. at 14, 409 P.3d at 56. In deciding that
aggregation of class claims was not permissible, the Castillo court looked to
other jurisdictions and distinguished Nevada. See id. at 16-17, 409 P.3d at
57-58. Castillo noted that "Eolther jurisdictions have allowed for
aggregation" in meeting their district court equivalents' jurisdictional
threshold because those states' courts of limited jurisdiction are not
"equipped to adjudicate class actions." Id. (quoting Dix v. Am. Bankers Life
Assurance Co. of Fla., 415 N.W.2d 206, 210-11 (Mich. 1987), and citing
Thomas v. Liberty Nat'l Life Ins. Co., 368 So. 2d 254, 257 (Ala. 1979); Judson
Sch. v. Wick, 494 P.2d 698, 699 (Ariz. 1972); and Galen of Fla., Inc. v.
Arscott, 629 So. 2d 856, 857 (Fla. Dist. Ct. App. 1993)). Castillo
distinguished Nevada because, under JCRCP 23, "justice courts have the
ability to hear class actions." Id. at 17, 409 P.3d at 58.
Thereafter, disagreeing with the court's conclusion regarding
aggregation of claims, multiple parties moved to proceed as amicus curiae
and requested this court depublish Castillo. See generally Amicus Curiae
Progressive Leadership Alliance of Nev.'s Motion to De-Publish Opinion and
to Stay Issuance of Remittitur, and for Possible Alternative Relief and
Motion to Exceed Page Limitation, Castillo v. United Fed. Credit Union,
8
Docket No. 70151 (Apr. 27, 2018). This court denied the motion to depublish
and stated that, "[b]ecause the aggregation discussion is not necessary to
the disposition, it arguably constitutes dictum, not mandatory precedent."
Castillo, Docket No. 70151, at *2 (Order Denying Motion to Depublish,
June 12, 2018).
Then, in 2019, NRCP 23 was amended to expressly allow for the
aggregation of class claims to establish district court jurisdiction. See In re
Creating a Comm. to Update & Revise the Nev. Rules of Civil Procedure,
ADKT 522 (Order Amending the Rules of Civil Procedure, the Rules of
Appellate Procedure, and the Nevada Electronic Filing and Conversion
Rules, Dec. 31, 2018). Under the current rule, "[t]he representative parties
may aggregate the value of the individual claims of all potential class
members to establish district court jurisdiction over a class action." NRCP
23(b).
Recognizing this complicated and conflicting history, we take
this opportunity to review our decision in Castillo and to clarify the rule
regarding aggregation of class claims to establish district court jurisdiction.
Applying this court's precedent, we are not persuaded the aggregation
holding in Castillo is nonbinding dicta. In St. James Village, Inc. v.
Cunningham, we indicated, statement in a case is dictum when it is
unnecessary to a determination of the questions involved." 125 Nev. 211,
216, 210 P.3d 190, 193 (2009) (internal quotation marks omitted). Despite
the panel's subsequent equivocation in its Order Denying Motion to
Depublish, the Castillo court expressly chose to consider the aggregation
issue prior to resolving the injunctive-relief issue, and therefore, we
disagree that the aggregation discussion was mere dicta. See 134 Nev. at
16-17, 409 P.3d at 57-58.
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. ..."
"[Ul rider the doctrine of stare decisis," this court will not
overturn its prior decisions absent compelling reasons to do so. Armenta-
Carpio v. State, 129 Nev. 531, 535, 306 P.3d 395, 398 (2013) (alteration in
original) (quoting Miller v. Burk, 124 Nev. 579, 597, 188 P.3d 1112, 1124
(2008)). Compelling reasons include "badly reasoned" or "unworkable"
decisions. State v. Lloyd, 129 Nev. 739, 750, 312 P.3d 467, 474 (2013)
(internal quotation marks omitted). We are persuaded that there are
compelling reasons for overturning Castillo, to the extent that it holds that
individual class members claims cannot be aggregated to determine
jurisdiction.7
First, Castillo suggests that justice courts' ability to hear class
actions under JCRCP 23 somehow counsels against aggregation, but
nothing in JCRCP 23 speaks to aggregation and the two concepts are not
mutually exclusive.8
Second, the Castillo aggregation holding is in conflict with the
newly amended NRCP 23(b),9 which expressly allows for aggregation of
claims to establish district court jurisdiction.
7This opinion does not alter the approach to aggregation of claims in
non-class actions. In non-class actions with multiple plaintiffs, each
plaintiff must meet the statutory and constitutional requirements for the
court to have subject matter jurisdiction over its claim. See NRS 4.370(1);
Nev. Const. art. 6, § 6(1).
8Nothing in this opinion prevents justice courts from hearing small
class actions in which the total amount claimed does not exceed the
jurisdictional threshold.
9Whi1e the recently amended NRCP 23(b) expressly permits
aggregation of class members' alleged damages for jurisdictional purposes,
amendments to court rules do not apply retroactively, so NRCP 23(b) does
not apply in this case. See Nev. Pay TV v. Eighth Judicial Dist. Court, 102
10
Finally, we believe the opinion did not account for the purposes
behind the jurisdictional threshold and failed to fully consider the impact of
its decision on justice courts, which, as this case illustrates, could be
significant. Castillo correctly observed that Nevada justice courts have the
authority under JCRCP 23 to hear class actions, but it did not consider
whether a justice court is—as a practical matter—"equipped to adjudicate"
a large class action, with hundreds of plaintiffs and millions of dollars at
stake. The foreign cases the court cited, soundly, were not concerned so
much with the legal authority of local courts of limited jurisdiction to
adjudicate such a case as with those courts ability to provide "effective
relief." Wick, 494 P.2d at 699 (emphasis added). Justice courts are designed
to handle relatively small cases efficiently and quickly; that is precisely why
the Legislature has imposed a maximum amount in controversy on the
jurisdiction of justice courts. In our view, the monetary threshold of NRS
4.370 was designed to limit justice courts' civil docket to relatively small
and simple cases—not to blindly impose a rule that would result in a justice
court hearing a massive and complex case like the one before us today.
We find these practical concerns to be serious and not fully
ameliorated by the existence of a procedural rule—JCRCP 23—allowing
justice courts to preside over class actions. We are unaware of even a single
large class action that has ever been tried in a Nevada justice court
pursuant to JCRCP 23. We have the utmost respect for the competence and
professionalism of Nevada's justices of the peace, but we think the best way
Nev. 203, 205 n.2, 719 P.2d 797, 798 n.2 (1986) (citing NRS 2.120),
superseded by rule on other grounds as stated in State, Dep't of Motor
Vehicles & Pub. Safety v. Eighth Judicial Dist. Court, 113 Nev. 1338, 948
P.2d 261 (1997).
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to show that respect is by declining to saddle them with massive class
actions for which they are wholly unprepared.
Accordingly, as it appears that no "legitimate reliance
interest( (" will be affected by our decision today, South Dakota v. Wayfair,
Inc., U.S. , 138 S. Ct. 2080, 2098 (2018) (internal quotation
marks omitted) ("Reliance interests are a legitimate consideration when the
Court weighs adherence to an earlier but flawed precedent."), we hold that
the jurisdictional interpretation set forth in Castillo regarding aggregation
was incorrect and that total damages sought by the class, rather than those
sought by any individual class member, must be considered in determining
whether the justice court has jurisdiction under NRS 4.370.1° Because the
class here sought more than $10,000, jurisdiction was proper in district
court. Castillo is overruled to the extent it is inconsistent with this opinion.
The district court improperly interpreted the MWA notice requirements and
so improperly tolled the statute of limitations
A Cab contends that the district court's equitable tolling of the
MWNs two-year statute of limitations was based on an improper
interpretation of the MWA's notice requirement in the Nevada
Constitution. Perry v. Terrible Herbst, Inc., 132 Nev. 767, 768, 383 P.3d
257, 258 (2016) (concluding that applying the two-year statute of limitations
in NRS 608.260 is proper for MWA claims). "We review questions of
10At
oral argument before this court, counsel for A Cab expressed
concern that, should we overrule Castillo, plaintiffs would have the option
of aggregating their damages or not as they saw fit and could therefore
choose whether to file in district court or justice court. We can identify no
legal basis for that concern, but to remove any doubt, we clarify that the
total damages sought by the class must—not may—be considered.
12
constitutional interpretation de novo." W. Cab Co. v. Eighth Judicial Dist.
Court, 133 Nev. 65, 73, 390 P.3d 662, 670 (2017).
Under the MWA, the Labor Commissioner is required each
spring to publish a bulletin announcing the adjusted minimum wage rates.
The MWA provides that "[a]n employer shall provide written notification of
the rate adjustments to each of its employees and make the necessary
payroll adjustments by July 1 following the publication of the bulletin."
Nev. Const. art. 15, § 16(A). Here, the district court concluded that "[a]
plain reading of the MWA can only result in an obligation on the employer
to 'provide to 'each' of its employees 'written notification' of the rate
adjustments to the minimum wage." Upon determining that the drivers
had not been properly informed of yearly minimum wage increases, the
district court remedied the situation by tolling the statute of limitations,
such that drivers whose claims arose prior to October 2010 and who were
employed by A Cab on the annual notification date—July 1—of 2007, 2008,
2009, and/or 2010 were included in the class.
The purpose of the MWA annual notification requirement is to
inform employees of the current minimum wage. There is no express
requirement that each employee be individually provided with written
notice; notice posted in a common work area is a form of written notification
that is available to each employee. The drivers here obtained this
notification, in writing, through the notices posted by A Cab in employee
common areas along with other required employment information. We
therefore conclude that, by posting the written notices in a common,
conspicuous area to which each driver had access, A Cab fulfilled the MWNs
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requirements to provide written notice to each employee.11 See, e.g., NRS
608.013 (requiring employers to "conspicuously post and keep so posted on
the premises where any person is employed a printed abstract of this
chapter [on Compensation, Wages and Hours] to be furnished by the Labor
Commissionee to inform employees of their rights).
Given that the district court's incorrect reading of the MWA was
its only justification for tolling the statute of limitations, we reverse the
tolling decision and conclude that the drivers claims extend backwards only
two years before their suit was filed. We remand to the district court to
recalculate damages for this shorter time period.
The district court properly granted summary judgment for the drivers
A Cab contends that the district court erred by entering
summary judgment in favor of the drivers, arguing that there were
outstanding issues of material fact regarding claims for wages for both the
2013-2015 period and prior to 2013. A Cab argues that, as for the pre-2013
period, detailed analysis of the tripsheets it provided is the only accurate
way to calculate any damages, although the district court found that A Cab
did not present any evidence of inaccuracy in the final calculations.
A district court's decision to grant summary judgment is
reviewed de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026,
1029 (2005). Summary judgment is proper if the pleadings and all other
11While we do not defer to an agency's interpretation of the state
constitution, we find it persuasive that, for over a decade, the Office of the
Nevada Labor Commissioner has required only posted notice. The Office of
the Labor Commissioner website instructs employers to post the annual
minimum wage bulletin in each place of business where employees work
and does not mention sending additional notices. State of Nev. Dep't of Bus.
& Indus., Office of the Labor Comm'r: Required Emp'r Postings (Dec. 3,
2021) (https://labor.nv.gov/Employer/Employer_Posters/).
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evidence on file demonstrate that no genuine issue of material fact exists
"and that the moving party is entitled to a judgment as a matter of law."
Id. (internal quotation marks omitted). All evidence "must be viewed in a
light most favorable to the nonmoving party." Id. To withstand summary
judgment, the nonmoving party cannot rely solely on general allegations
and conclusions set forth in the pleadings but must instead present "specific
facts demonstrating the existence of a genuine factual issue" supporting the
party's claims. Id. at 731, 121 P.3d at 1030-31 (internal quotation marks
omitted).
Period between 2013 and 2015
Reviewing A Cab's claim that the district court erred in
ordering summary judgment, this later time period, 2013-2015, presents a
simple question for our review. A Cab provided the drivers with its own
computerized pay and hour records, and the drivers expert simply entered
that data into a spreadsheet to calculate each driver's hours, pay, and
minimum wage deficiencies. The calculations showed a disparity between
the amounts owed as minimum wage and the actual pay, entitling the
drivers to recovery. The district court concluded that these spreadsheets
were mathematically accurate and entered summary judgment for the
damage amounts calculated in those spreadsheets.
A Cab argues that we should reverse the summary judgment as
to this period, yet it has not demonstrated existing issues of material fact
on the underlying data points (data points it provided to the drivers), the
calculations performed by the drivers' experts, or the minimum wage
deficiencies revealed by those calculations. As a result, we have been
provided with no justification to reverse the district court's order granting
summary judgment for this period.
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03) OVA MOP
Period before 2013
A Cab contends the district court incorrectly granted summary
judgment for the pre-2013 time period, arguing the records it provided to
the drivers were sufficient and that the district court improperly shifted the
burden to A Cab by requiring it to pay for a special master. Because A Cab
believes it provided all statutorily required information, A Cab further
asserts that the district court allowing reasonable approximation damages
was not appropriate. We review this issue de novo and conclude the district
court properly granted summary judgment for this period.
Pursuant to NRS 608.115(1), every employer is required to
"establish and maintain records of wages" for each pay period for its
employees. In pertinent part, these wage records must "show[ [ for each pay
period," among other things, the "[dross wage," "[n[et cash wage," and "total
hours employed in the pay period by noting the number of hours per day."
NRS 608.115(1)(a), (c) & (d). Additionally, employers are required to
maintain these records for two years, and the employer is required to
provide this information "to each employee within 10 days after the
employee submits a request." NRS 608.115(2)-(3).
During the discovery process, A Cab provided the drivers with
two forms of pay information for the period before 2013: data from its
computerized pay records and handwritten tripsheets. There is no dispute
that the computerized data for this period did not contain information
regarding the total hours worked per shift. However, the tripsheets
accounted for all hours worked by the drivers, including the start and end
times and handwritten notes from the drivers about breaks during the shift.
So, the wage and shift information was in the computerized form, and the
hours worked information was in the handwritten tripsheets. Therefore, to
determine hours worked per shift and pay period for each of the drivers in
16
the class based on the tripsheets, it would have been necessary to perform
extensive calculations from the tripsheets, and then to harmonize those
with the shift and wages per pay period information to establish any
deficiencies.
The district court held that the information A Cab provided to
the drivers did not conform to the requirements of what records employers
must keep and provide under NRS 608.115. We agree. The plain meaning
of the statute requires employers to keep records showing an employees
wage and the number of hours worked per day and to provide this
information to employees on request. See NRS 608.115(1), (2); Beazer
Homes Nev., Inc. v. Eighth Judicial Dist. Court, 120 Nev. 575, 579-80, 97
P.3d 1132, 1135 (2004) (providing this court interprets clear and
unambiguous language by its plain meaning). Although the drivers could
have ultimately determined hours worked from what was provided, A Cab
did not fulfill its burden to provide this statutorily required information to
the drivers.12
As a result, we conclude that the district court properly
required A Cab to pay for a special master to analyze the information.
Under NRCP 53, a court may appoint a master to assess and determine
factual issues, and the court is required to consider fairness when imposing
the expenses of the master on the parties. We agree with the district court
12We recognize that this information provided by A Cab may be
sufficient in other civil actions. See Pizarro-Ortega v. Cervantes-Lopez, 133
Nev. 261, 265, 396 P.3d 783, 787 (2017) (recognizing that a party requesting
damages has a duty to provide a computation of damages based upon
information available to it). However, in this matter, the employer has the
burden to maintain and produce the records in the manner provided by the
statute. See NRS 608.115.
17
that "it would not have been equitable nor justified to require Plaintiffs to
pay for work performed by the Special Master when it was Defendant
A Cab's failure to comply with NRS 608.115" that led to the need to hire a
special master in the first place.
After A Cab did not pay the special master fees, the district
court appropriately permitted the drivers to approximate the damages for
this time period. In doing so, the district court relied on Anderson v. Mount
Clemens Pottery Co., 328 U.S. 680 (1946), superseded by statute on other
grounds as stated in Integrity Staffing Sols., Inc. v. Busk, 574 U.S. 27 (2014),
which this court relied upon in Bombardier Transportation (Holdings) USA,
Inc. v. Nevada Labor Commissioner, 135 Nev. 15, 28, 433 P.3d 248, 259
(2019). In Mount Clemens, the United States Supreme Court permitted
plaintiffs to use approximate calculations of damages in a Fair Labor
Standards Act action when the defendant employer failed to keep proper
and accm.ate records and also failed to produce evidence to negate the
approximation evidence. 328 U.S. at 687-88. In Bombardier, this court
agreed with that analysis on the grounds that employees "should not be
penalized for the employer's failure to keep accurate records as required by
law." 135 Nev. at 28, 433 P.3d at 259 (internal quotation marks omitted).
Although here, A Cab had the information required and
requested, it was in a form different and more complicated than that
required by statute, and we conclude this difference is immaterial for the
purposes of a Mount Clemens analysis. We conclude that the district court's
decision to permit the drivers to approximate damages was proper, given
A Cab's insufficient information and refusal to pay the special master.
We must next consider whether the spreadsheets for this period
were reasonable approximations of the records that the district court found
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defendants should have produced. In Mount Clemens, the approximation
evidence presented was employee testimony regarding time spent walking
to worksites and engaging in extensive work-related preparation before the
shift period began, which the employees would not be able to prove with a
high degree of reliability or accuracy. 328 U.S. at 692-93. In Bombardier,
the evidence was in the form of the plaintiffs reasonable estimates of what
proportion of hours worked and tasks completed "constituted repair work."
135 Nev. at 28, 433 P.3d at 259. Here, as described above, the drivers made
calculations from the actual pay given to the drivers, the actual number of
shifts worked by the drivers per pay period, and an approximation of the
hours worked per shift (using the hours-per-shift in the 2013-2015 data to
estimate the average shift length in the earlier time period). We agree this
was an appropriate method to approximate damages. See Mount Clemens,
328 U.S. at 693 ("Unless the employer can provide accurate estimates, it is
the duty of the trier of facts to draw whatever reasonable inferences can be
drawn from the employees' evidence . . . .").
A Cab points out that the district court initially declined to
enter summary judgment on the calculations based on the estimations,
which is true. However, the district court had merely said that, while its
preference would have been for the special master to make calculations
based on the tripsheets, A Cab did not enable that to happen, and
consequently, the district court was permitted to use less specific data to
calculate damages. See id. at 687-88 (stating that when an employer does
not keep accurate records, "Mlle burden then shifts to the employer to come
forward with evidence of the precise amount of work performed or with
evidence to negative the reasonableness of the inference to be drawn from
the employee's evidence. If the employer fails to produce such evidence, the
19
court may then award damages to the employee, even though the result be
only approximate"); see also Bombardier, 135 Nev. at 28, 433 P.3d at 259.
The spreadsheets provided reasonable approximations of the records that
defendants should have produced and provided appropriate calculations of
damages. The only approximation evidence was the 9.21 hours-per-shift
average estimate, •which had ample support, including one of A Cab's own
experts testimony acknowledging that his average sampling would have
allowed for 9.7 hours-per-shift. Therefore, with damages calculated based
on these reasonable estimates, the district court properly granted summary
judgment. We affirm the district coures summary judgment; however, as
stated above, we remand to the district court to recalculate damages based
on the two-year statute of limitations.
The district court did not abuse its discretion in severing the claims against
Nady
A Cab argues that the district court erred in severing the claims
against Nady, contending that the district court severed the claims only "to
artificially create finality" to beat a similar, concurrently litigated class
action to judgment. We have not previously stated the standard of review
for a severance under NRCP 21. We note that "NRCP 21 parallels FRCP
21," Valdez v. Cox Commc'ns Las Vegas, Inc., 130 Nev. 905, 908, 336 P.3d
969, 971 (2014), and under the federal rule, "[tl he trial court has broad
discretion to sever issues to be tried before it," Brunet v. United Gas Pipeline
Co., 15 F.3d 500, 505 (5th Cir. 1994). We today clarify that we review a
district court's severance of claims for an abuse of discretion.
Under NRCP 21, the court may drop or add a party through a
motion of any party or on its own, and the court may sever claims. We have
said that "when a judgment has been entered resolving claims properly
severed, it is final and appealable, despite the existence of other pending,
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unsevered claims." Valdez, 130 Nev. at 907, 336 P.3d at 971. However, we
have not provided guidance on when severance is proper.
Federal courts consider several factors in deciding whether
severance is proper under FRCP 21, including
(1) whether the claims arise out of the same
transaction or occurrence;
(2) whether the claims present some common
questions of law or fact;
(3) whether settlement of the claims or judicial
economy would be facilitated;
(4) whether prejudice would be avoided if severance
were granted; and
(5) whether different witnesses and documentary
proof are required for separate claims.
Parchman v. SLM Corp., 896 F.3d 728, 733 (6th Cir. 2018).
The trials of A Cab and Nady had already been bifurcated for
purposes of judicial economy under NRCP 42(b). During the summary
judgment hearing, the drivers stressed the importance of finality as to the
corporate defendants and asked the court to sever the remaining claims
against Nady. The district court severed all claims against Nady pursuant
to NRCP 21 and stayed them for 60 days in its order.13
A Cab's only cogent argument against the severance is based on
one case, where the United States Court of Appeals for the Second Circuit
found an abuse of discretion because "the severance was so transparently a
confusion of bifurcation and severance "or an attempt to separate an
essentially unitary problem" for the purposes of creating finality. Spencer,
131n 2019, we dismissed Nady's appeal in this matter on the
jurisdictional ground that no final judgment had been entered against Nady
since the claims against him had been severed. Nady v. Murray, No. 77050,
2019 WL 3072593 (Nev. July 12, 2019) (Order Dismissing Appeal).
21
White & Prentis Inc. of Conn. v. Pfizer Inc., 498 F.2d 358, 362 (2d Cir. 1974)
(internal quotation marks omitted). A Cab argues this matter is
comparable to Spencer and that the district court severed the claims against
Nady to win the race between the two similar class actions, to get to a final
judgment to vindicate the MWA, and to defeat Nady's right to a timely trial.
We find no merit in A Cab's arguments that the district court
abused its discretion and no support for its bald claims regarding the
district court's supposed ulterior motives for severing the case. A Cab
speculates on the judges actual reasons for granting finality while ignoring
the judge's legitimate, stated reasons. In considering the Parchman factors,
we see several reasonable justifications for the district court's severance.
Most prominently, the district court sought to facilitate settlement and
judicial economy by severing the alter ego claims—particularly because, if
the drivers collected the full amount of their judgment against the corporate
defendants, there would be no need to proceed with the claims against
Nady. The claims against Nady (as an alter ego of A Cab and under an
unjust enrichment theory) were severable under the Parchman factors
because those claims involved different forms of evidence and might be
rendered unnecessary. Therefore, we conclude that A Cab has not shown
that the district court abused its discretion in severing these claims.
The award of attorney fees must be reconsidered, in light of this disposition,
and the district court abused its discretion in awarding costs
A Cab argues that the district court disregarded procedural
rules and awarded excessive fees and costs, even though the eventual
22
recovery by the class representative plaintiffs was less than the amounts
A Cab had offered in settlement.14
Under the MWA, 'Uri employee who prevails in any action to
enforce this section shall be awarded his or her reasonable attorney's fees
and costs." Nev. Const. art. 15, § 16(B). "A district court's decision
regarding an award of costs will not be overturned absent a finding that the
district court abused its discretion." Village Builders 96, L.P. v. U.S. Labs.,
Inc., 121 Nev. 261, 276, 112 P.3d 1082, 1092 (2005). The district court in
this matter awarded the drivers $568,071 in attorney fees and $46,528 in
costs, including $29,022 in expert fees. For the reasons outlined below, we
reverse the award of attorney fees and costs, and remand to the district
court for further proceedings consistent with this opinion.
Attorney fees
With respect to attorney fees, district courts have discretion
regarding which method is used to determine the fees but must consider the
four factors outlined in Brunzell v. Golden Gate National Bank, 85 Nev. 345,
349-50, 455 P.2d 31, 33 (1969). These factors include the attorney's
"professional qualities, the nature of the litigation, the work performed, and
the result. In this manner, whichever method the court ultimately uses, the
result will prove reasonable as long as the court provides sufficient
reasoning and findings in support of its ultimate determination." Shuette
v. Beazer Homes Holdings Corp., 121 Nev. 837, 865, 124 P.3d 530, 549
(2005).
HA Cab argues the drivers did not best the settlement offer under
NRCP 68 and therefore may not recover any attorney fees or costs.
However, we need not consider this argument because the drivers were
entitled to reasonable attorney fees and costs under the MWA. See Nev..
Const. art. 15, § 16(B).
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A Cab argues the attorney fees award was excessive and that
the drivers did not provide proper documentation for the district court to
calculate the amount awarded. The drivers supported their request for
attorney fees with a declaration by counsel that detailed the experience of
the advocates, the difficulty of the work, and the time devoted to the work
through a review of "contemporaneous time records" (which were not
attached). A Cab argues this did not meet NRCP 54(d)(2)(B)'s requirement
at the time that a request for fees must, among other things, "state the
amount sought or provide a fair estimate of it; and be supported by counsel's
affidavit swearing that the fees were actually and necessarily incurred and
were reasonable, [as well as] documentation concerning the amount of fees
claimed." NRCP 54(d)(2)(B) (2009). The district court awarded attorney
fees in the amount of 8568,071. It supported that award by going through
three possible formulations to calculate hours and fees and through a
consideration of the four Brunzell factors. We conclude that the declaration
of counsel constituted the "documentation" required under NRCP
54(d)(2)(B), and A Cab has not shown that the attorney fees award was
unsupported or excessive beyond asserting that the drivers did not provide
the appropriate documentation. However, in light of this disposition and
the district court's improper tolling of the statute of limitations, the amount
of the attorney fees must be reconsidered for reasonableness, and we
therefore reverse and remand the award of attorney fees.
Costs
With respect to costs, trial courts are urged to exercise restraint
and strictly construe statutes permitting recovery of costs. Bergmann v.
Boyce, 109 Nev. 670, 679, 856 P.2d 560, 566 (1993), superseded by statute on
other grounds as stated in In re DISH Network Derivative Litig., 133 Nev.
438, 451 n.6, 401 P.3d 1081, 1093 n.6 (2017). "To support an award of costs,
24
justifying documentation must be provided to the district court to
demonstrate how such [claimed costs] were necessary to and incurred in the
present action." In re DISH, 133 Nev. at 452, 401 P.3d at 1093 (alteration
in original) (internal quotation marks omitted).
The drivers supported their request for nonexpert costs with a
declaration by counsel that included a table noting litigation expenses
extracted from a review of office records. However, this documentation was
insufficient because the drivers did not provide justification for why each
cost was necessary or proof that each cost was incurred in the present
action. See id.; see also Cadle Co. v. Woods & Erickson, LLP, 131 Nev. 114,
121, 345 P.3d 1049, 1054 (2015) ([J]ustifying documentation must mean
something more than a memorandum of costs?), Village Builders 96, L.P.
v. U.S. Labs, Inc., 121 Nev. 261, 276-78, 112 P.3d 1082, 1092-93 (2005)
(explaining that providing justification for each copy made or call placed is
necessary in order for the district court to properly assess whether the cost
was actually incurred and reasonable), Bobby Berosini, Ltd. v. PETA, 114
Nev. 1348, 1352-53, 971 P.2d 383, 386 (1998) (concluding the district court
abused its discretion in awarding costs where parties did not provide
itemization or justification of certain costs incurred). Accordingly, the
district court abused its discretion in awarding the drivers their nonexpert-
related costs, and we remand for further proceedings.
A Cab additionally argues that the district court erred in its
award of expert witness fees because the amount exceeded the statutory cap
and the case did not go to trial. NRS 18.005(5) caps expert witness fees at
$1,500 per expert, for not more than five experts. Any award beyond that
cap requires careful evaluation by the district court, in which the court must
consider several factors, including "the importance of the expert's testimony
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to the party's case," the extent of the expert's work, and "whether the expert
had to conduct independent investigations or testing." Frazier v. Drake, 131
Nev. 632, 650-51, 357 P.3d 365, 377-78 (Ct. App. 2015).
We conclude that the district court did not adequately support
its award of expert witness fees in excess of NRS 18.005(5)s limitation, in
light of Frazier's instructions for how that analysis should be conducted.
The district court referenced the dispute regarding who bore the burden of
providing and analyzing wage-and-hour information, saying "defendants
might have a colorable argument against the [drivers'] expert costs had the
[s]pecial [m]aster completed his work regarding the trip sheets. . . . (The
drivers') experts were necessary and their expenses were reasonable given
the extent of the work performed in calculating the damages based upon the
computer data information which was provided by A Cab." However, this
weighs against awarding excess expert witness fees. The drivers did not
hire an expert to do the work the special master would have done; their
expert performed only the wage-and-hour calculations that would have been
required even if A Cab had provided sufficient information for both time
periods. Given that the district court did not provide a reasonable
justification for such excess expert fees, we also reverse and remand this
portion of the costs award for further consideration by the district court in
light of Frazier.
The district court did not err in amending the judgment, but it should have
held an evidentiary hearing on the motion to quash collection of the
judgment amount
The day after summary judgment was entered, the district
court granted a motion to amend the judgment to include "A Cab Series
LLC" (one of the named appellants here). This order allowed the judgment
to be amended "to indicate it is against 'A Cab Series LLC as the current
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•
name of the originally summoned defendant and judgment debtor 'A Cab
LLC.'" A Cab contends that "A Cab, LLC," and "A Cab Series, LLC," are
different entities and the district court's order "add[ed] a party after final
judgment." The drivers insist that "A Cab Series, LLC," is simply the new
name of the defendant they originally sued.
A Cab urges us to review this order as an impermissible
addition of a third party as a judgment debtor. For the purposes of framing
this question, we use the language of amending the judgment, as per the
district court's order. NRCP 59(e) permits motions to alter or amend a
judgment. Orders deciding an NRCP 59(e) motion are not independently
appealable but are reviewed for an abuse of discretion when included with
a proper appeal. AA Primo Builders, LLC v. Washington, 126 Nev. 578, 589,
245 P.3d 1190, 1197 (2010).
In 2005, Nevada amended NRS 86.296 to allow for the creation
of "Series LLCs," a relatively new form of corporate entity that exists only
in certain states. 2005 Nev. Stat., ch. 459, § 27, at 2193-94. Within a Series
LLC structure, an "LLC may establish and contain within itself separate
series or cells. . . . Each such separate Protected Series is treated as an
enterprise separate from each other and from the Series LLC itself."
Alberto R. Gonzales & J. Leigh Griffith, Challenges of Multi-State Series
and Framework for Judicial Analysis, 42 J. Corp. L. 653, 655 (2017). If
certain conditions are met, then "Mlle debts, liabilities, obligations and
expenses incurred, contracted for or otherwise existing with respect to a
particular series are enforceable against the assets of that series only, and
not against the assets of the company generally or any other series." NRS
86.296(3). In Nevada, a Series LLC is created by first allowing for the
creation of one or more cell series in the articles of organization or operating
27
agreement of an LLC. NRS 86.296(2). Second, in order to trigger the
liability shield protections of the created cell series, a cell series must have
separate records from the LLC as a whole and from any other cell series,
and the articles of organization or operating agreement must provide that
debts, liabilities, and expenses are only enforceable against that individual
cell series. NRS 86.296(3).
Although we have not previously had occasion to interpret the
statutory scheme, the plain text of the statute governs a few important
considerations for this case. First, the one-or-more cell series within the
Series LLC is created by the LLC's operating agreement or articles of
organization—not by a filing with the Nevada Secretary of State. NRS
86.296(2). Second, NRS 86.296(2) provides a list of optional, but not
mandatory, attributes for a Series LLC. Third, the liability shield
protections require the triggers discussed above, which are shown in the
operating agreement or articles of organization and through the practice of
separate and distinct record-keeping and accounting. NRS 86.296(3).
In 2012, A Cab, LLC, amended its articles of organization and
filed them with the Secretary of State. The attached articles listed the name
of the company as "A Cab, LLC," and stated in one article—
This is a Series Limited Liability Company that
may establish designated series of members,
managers, company interests having separate
rights, powers or duties with respect to specified
property or obligations of the Company or profits
and losses associated with specified property or
obligations, and, to the extent provided in the
Operating Agreement of the Company, any such
series may have a separate business purpose or
investment objective and/or limitation on liabilities
of such series in accordance with the provisions of
Section 86.161(e) of the Nevada Revised Statutes.
28
According to A Cab, after the Series LLC was formed, at least
five separate cell series entities were created: "A Cab Series, LLC,
Maintenance Company; [A] Cab Series, LLC, Administration Company;
A Cab Series, LLC, Taxi Leasing Company; A Cab Series, LLC, Employee
Leasing Company[;] A Cab Series, LLC, Medallion Company; and others."
In 2016, the Nevada Taxicab Authority authorized "Admiral Taxicab
Service, LLC dbaA Cab, LLC," to operate 115 taxicab medallions. In 2017,
A Cab, LLC, again filed with the Secretary of State an amendment to the
articles of organization, with the statement, "The name is now A Cab, Series
L.L.C."
Following the district court's summary judgment in August
2018, the drivers moved to amend the judgment to include "A CAB SERIES
LLC," and then served a writ of garnishment (execution) on Wells Fargo
Bank for any accounts or monies "owned by judgment debtors A Cab LLC
or A Cab Taxi Service LLC."15 The defendants moved to quash that writ of
execution on the grounds that funds were taken from "separate independent
entities which although related to A Cab LLC are not subject to execution,"
i.e., various series companies created under the umbrella of A Cab Series,
LLC, and that the court had not yet granted the drivers motion to amend
the judgment. The district court then granted the drivers' motion to amend
the judgment to include "A Cab Series, LLC," and denied the defendants'
motion to quash the writ of execution.
15A Cab Taxi Service LLC was named as a party to the case from the
beginning but was not served and did not appear, and it does not appear to
exist.
29
On appeal, A Cab argues again that the district court should
not have allowed a new, third party (A Cab Series, LLC) to be added to the
judgment and should not have allowed garnishment from accounts
belonging to separate series entities such as "A Cab Series, LLC,
Maintenance Company." A Cab argues that the requirements of NRS
86.296 have been met, and as a result, separate, shielded series entities
exist. The drivers respond that no third party was added because "A Cab
Series, LLC," is one and the same as "A Cab, LLC," given the name change
in 2017. Further, the drivers contend that collection from the individual
series entity accounts is appropriate because no cell series entities with the
NRS 86.296(3) liability shield exist. Even if cell series entities did exist, the
drivers insist the cell entities alleged injury should not be part of this
appeal since neither of the appellants may assert the rights of third parties.
The record convinces us that the drivers are correct that the
original defendant "A Cab, LLC," no longer exists except under the changed
name of "A Cab Series, LLC," and the district court properly allowed the
judgment to be amended to reflect that change. In 2012, A Cab, LLC,
became a Series LLC, and, in 2017, it changed its name to reflect that shift.
A Cab's arguments that there are two separate entities is belied by the
record, the 2017 name change document, and even the way the names were
used interchangeably to refer to the parties within the dispute below and
on appeal. As a result, we conclude that the district court did not abuse its
discretion in amending the judgment to include "A Cab Series, LLC."6
16For clarity, the district court should have substituted "A Cab, LLC,"
with "A Cab Series, LLC," to reflect the fact that there was only ever one
such entity.
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We next must consider whether the district court nevertheless
erred in permitting collection from the Wells Fargo accounts without
conducting an evidentiary hearing on whether the requirements of NRS
86.296 had been met and the separate series liability shield had been
created. Series entities under the umbrella of a Series LLC either exist or
not based on their compliance with NRS 86.296. In a hearing on the motion
to amend the judgment, the district court said, "I don't think this is the time
to take evidence, frankly," and such evidence was never taken. We
acknowledge that the district court's concerns about standing were valid.
The district court was understandably unsure of what corporate entities
were even represented during the hearings discussing the motions to quash
the writ of execution and to amend the judgment.
But the district court did err in denying the motion to quash
without conducting an evidentiary hearing. The district court
acknowledged that while the issues could potentially "be cured by a belated
appearance by the alleged series LLCs (if they are, in fact, properly
constituted and exist), the interests of justice, and the need to promote
judicial efficiency" led the court to make its decision without such
appearances. The only way to assess the existence of the individual series
entities for the purpose of judgment collection is through examining the
operating agreements, and A Cab did not have the opportunity to use those
agreements to present the district court with an argument for the series'
existence. A Cab (and the series entities, if they actually exist and join the
action) is entitled to an opportunity to present such evidence and argue its
motion to quash. Accordingly, we reverse on this point and remand to the
district court in order to reconsider the motion to quash the writ of
execution.
31
•
CONCLUSION
This complex litigation ultimately hinged on two questions:
(1) were the drivers underpaid? and (2) if yes, by how much? As a
preliminary matter, we necessarily conclude the district court had
jurisdiction over this class action because the drivers could aggregate their
claims to meet the statutory threshold. Accordingly, we overrule Castillo to
the extent that it conflicts with this opinion.
We conchide the district court erred by tolling the statute of
limitations far beyond two years based on an erroneous interpretation of
the MWA's notice requirements. We affirm the district court decision to
grant summary judgment for the drivers using reasonable approximation
evidence when A Cab failed to disclose the drivers hours worked as required
by statute. And we conclude the claims against Nady were properly
severed. However, we conclude the district court must reconsider the award
of attorney fees, in light of this disposition. Furthermore, the district court
erred in its award of costs because its order did not adequately support the
award of expert fees in excess of the statutory cap. Additionally, the drivers
did not provide sufficient documentation for the district court to award the
remaining costs. Finally, while the district court properly amended the
judgment to include "A Cab Series, LLC," it erred by denying A Cab's motion
to quash the execution of judgment without taking evidence on what
corporate entities existed and were actually liable for the judgment.
Accordingly, we affirm in part the district court's summary
judgment, as amended to include A Cab Series, LLC, and the severance of
claims against Nady, however, we reverse the summary judgment as to
damages for claims outside of the two-year statute of limitations, the order
denying the motion to quash, the order awarding attorney fees, and the
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costs award. We remand this matter to the district court for further
proceedings consistent with this opinion.
Stiglich
We concur:
Hardesty
, J.
Parraguirre Cadish
LIZ6AM)
Silver Herndon
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