Appeal from a district court judgment on a jury verdict, on remand, in a real property action. Eighth Judicial District Court, Clark County; Michael Villani, Judge.
Law Offices of Kermitt L. Waters and James J. Leavitt, Kermitt L. Waters, Michael A. Schneider, and Autumn L. Waters, Las Vegas, for Appellant.
Holley, Driggs, Walch, Puzey & Thompson and Stacy D. Harrop and Gregory J. Walch, Las Vegas, for Respondent.
Hardesty, C.J. We concur: Parraguirre, J., Saitta, J., Douglas, J., Pickering, J. GIBBONS, J., with whom CHERRY, J., agrees, dissenting.
BEFORE THE COURT EN BANC.
Article 1, Section 8(6) of the Nevada Constitution states that a landowner's property may not be taken for public use without just compensation. In Buzz Stew, LLC v. City of North Las Vegas, 124 Nev. 224, 181 P.3d 670 (2008) ( Buzz Stew I ), we recognized that, regardless of whether property has actually been taken, the just compensation provision requires compensating a landowner for a lesser invasion of his property rights when a would-be condemnor acts improperly following its announcement of intent to condemn, such as by unreasonably delaying condemnation of the property. Id. at 228-29, 181 P.3d at 672-73. Thus, in Buzz Stew I, we held that even though appellant Buzz Stew, LLC, failed to state a claim for the actual taking of its property, it could still maintain a claim for precondemnation damages against respondent City of North Las Vegas, and we remanded the matter for a jury trial on the issue of whether the City acted unreasonably in delaying its condemnation of Buzz Stew's property after publicly announcing its intent to do so. Id. at 230, 181 P.3d at 674. On remand, the jury found that the City did not act unreasonably, and the district court entered judgment against Buzz Stew. Buzz Stew now appeals to this court for a second time.
In this appeal, Buzz Stew asserts that a new trial is required due to a number of errors made below, both with regard to the precondemnation claim and with respect to
new evidence demonstrating that the City actually took its property. With respect to the latter assertion, we conclude that the evidence presented at trial did not establish that a taking occurred while Buzz Stew maintained an interest in the property, either by the eventual construction of a drainage system on the property or by any prior water invasion. Further, we conclude that no error made below warrants a new trial. Finally, we conclude that, even though costs are unavailable in eminent domain actions, here, costs may be recovered by the City with respect to the unsuccessful precondemnation claim. Therefore, we affirm the judgment of the district court.
FACTS AND PROCEDURAL HISTORY
Appellant Buzz Stew, LLC, purchased a 20-acre parcel of land located in North Las Vegas in 2002. Around this same time, respondent City of North Las Vegas was preparing to construct a flood waters drainage system that would traverse Buzz Stew's property. The City offered to purchase an easement across Buzz Stew's land, but Buzz Stew refused the offer. In 2003, the City publicly announced its intent to condemn the portion of the land needed for the project. A condemnation action was not filed, however, because the City was unable to secure construction funding. Notwithstanding its inability to proceed with the project, the City failed to publicly retract its prior public announcement of its intent to condemn the parcel. Buzz Stew subsequently sold the land in 2004 to a third party, Dark, LLC. In the seller's disclosures clause in the sale contract, Buzz Stew informed Dark, LLC, of the City's demand for a drainage easement, and Buzz Stew retained the right to any proceeds resulting from a condemnation of the area proposed in the easement. Dark, LLC, eventually sold the property to Standard Pacific of Las Vegas, Inc., who thereafter granted the City an easement to accommodate the water drainage project.
A few years after selling the land, Buzz Stew filed a complaint against the City for inverse condemnation and precondemnation damages. The district court granted the City's motion to dismiss the complaint for failure to state a claim, and Buzz Stew appealed. See Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 181 P.3d 670 (2008) ( Buzz Stew I ). In Buzz Stew I, we affirmed, in part, the district court's order dismissing the inverse condemnation claim because we concluded that Buzz Stew had not alleged any facts demonstrating that a taking had occurred. Id. at 230-31, 181 P.3d at 674. We also concluded that Buzz Stew had a viable claim for precondemnation delay damages because questions of fact remained regarding whether the City's delay in condemning the property after the City had publicly announced in 2003 its intent to condemn but then failed to ...