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Hefetz v. Beavor

Supreme Court of Nevada

July 6, 2017

YACOV JACK HEFETZ, Appellant,
v.
CHRISTOPHER BEAVOR, Respondent.

         Appeal 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.

          Cohen 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.

         BEFORE THE COURT EN BANC.

          OPINION

          STIGLICH, J.

         The 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 rule.

         FACTUAL AND PROCEDURAL HISTORY

         The 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.[1] 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.

         In 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.

         Without foreclosing on the property, Hefetz filed a complaint to recover damages against Beavor for breach of the guaranty agreement, [2]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 rule.

         On May 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."

         A jury 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.

         On May 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.

         Hefetz 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 ...


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