from a district court order granting a motion to dismiss and
awarding attorney fees in an action seeking to enforce a
guaranty agreement. Eighth Judicial District Court, Clark
County; Ronald J. Israel, Judge.
Johnson Parker Edwards and H. Stan Johnson, Chris Davis, and
Michael V. Hughes, Las Vegas, for Appellant.
Dickinson Wright PLLC and Joel Z. Schwarz, Gabriel A.
Blumberg, and Taylor Anello, Las Vegas, for Respondent.
THE COURT EN BANC.
one-action rule generally requires a creditor seeking to
recover debt secured by real property to proceed against the
security first prior to seeking recovery from the debtor
personally. This opinion addresses whether the nonwaiver
provisions of NRS 40.495(5) preclude a party from waiving the
one-action rule by failing to assert it in his responsive
pleadings. We hold that the one-action rule must be timely
interposed as an affirmative defense in a party's
responsive pleadings or it is waived. Because respondent
Christopher Beavor failed to raise the one-action rule
defense until prior to the commencement of the
second trial in the case, the district court erred
by granting his motion to dismiss based on the one-action
AND PROCEDURAL HISTORY
Herbert Frey Revocable Family Trust (the trust) loaned Toluca
Lake Vintage, LLC (Toluca Lake) $6, 000, 000, pursuant to a
loan agreement dated March 29, 2007. Appellant Yacov Jack
Hefetz (Hefetz) entered into a participation agreement with
the trust and contributed $2, 214, 875 toward funding of the
loan. The proceeds of the loan were used to purchase
property, as well as the funding of engineering, marketing,
and architects for a planned development of the commercial
property. In relevant part, the loan was secured by the
personal residence of respondent Christopher Beavor and his
former wife, Samantha. In addition to Beavor's personal
residence, the loan was secured by a personal guaranty
agreement, wherein Beavor waived his rights under
Nevada's one-action rule, found in NRS 40.430. One of the
provisions of the loan stated that the loan would default
should Toluca Lake file for bankruptcy.
2009, Toluca Lake filed for bankruptcy, thereby defaulting on
the loan, and Beavor refused to repay the loan under the
terms of the personal guaranty agreement. Subsequently, the
trust assigned its interest in the loan, promissory note,
deeds of trust, and guaranty to Hefetz.
foreclosing on the property, Hefetz filed a complaint to
recover damages against Beavor for breach of the guaranty
agreement, Beavor did not assert the one-action rule
in either his answer to the complaint or his counterclaim.
The district court scheduling order mandated the parties file
motions to amend pleadings or add parties on or before
February 21, 2012, and file dispositive motions on or before
June 20, 2012. On April 9, 2012, Beavor filed his first
amended counterclaim, which did not assert the one-action
29, 2012, a stipulation and order to extend discovery
deadlines was entered, extending discovery until July 23,
2012, and the dispositive motion deadline until August 23,
2012. However, the parties expressly stipulated that the
"deadline for any party to amend the pleadings has
passed" and "[t]he parties do not seek an extension
of [the February 21, 2012, ] date."
trial was held between February 5, 2013, and March 1, 2013,
and the jury entered a verdict in favor of Beavor.
Subsequently, Hefetz filed a motion for a new trial, or in
the alternative, a motion for judgment notwithstanding the
verdict. The district court granted Hefetz's motion for a
new trial based on Beavor's failure to oppose the motion
on its merits. The new trial was scheduled for a five-week
stack, commencing October 12, 2015. The district court
ordered that the deadlines remained governed by the May 29,
2012, scheduling order, which had deadlines of July 23, 2012,
for discovery, and August 23, 2012, for dispositive motions.
5, 2015, Beavor filed a motion to dismiss Hefetz's
complaint based on the one-action rule, raising the
one-action rule defense for the first time. After a hearing,
the district court granted Beavor's motion to dismiss
based on the one-action rule, finding that the one-action
rule could not be waived. The district court later granted
Beavor attorney fees.
now appeals and raises the following issues: (1) whether the
district court erred by granting Beavor's motion to
dismiss because Beavor waived the one-action rule defense by
not timely asserting it, and (2) whether the ...