United States District Court, D. Nevada
ORDERGRANTINGMOTIONFOR PARTIAL SUMMARYJUDGMENT (ECF
P. GORDON UNITED STATES DISTRICT JUDGE.
State of Nevada exercised its eminent domain powers and
condemned property needed for a public roadway project called
Project Neon. Included in the condemned property was a
portion of a vacant lot at 1404 S. Martin Luther King
Boulevard in Las Vegas. Defendants Darrell E. Jackson; Thomas
M. Strawn, Jr.; and Andrew S. Levy (the
“Landowners”) own the property.
State filed an eminent domain action to assess the just
compensation due for the property. The Landowners
counterclaimed for pre-condemnation damages based on several
categories of damages. I previously granted summary judgment
in the State's favor as to two of these categories (lost
rent and holding costs) because the damages were too
speculative. ECF No. 121. The Landowners also seek payment
for what they characterize as lost professional services.
Prior to the condemnation, they incurred $58, 758 in
attorney's fees to rezone the property from residential
to office and paid $7, 500 to an architect to design an
State moves for summary judgment as to these damages, raising
three arguments. First, the State contends that no Nevada
court has ever recognized lost professional services as a
compensable category of pre-condemnation damages. Second, the
State argues that the Landowners incurred the costs and
decided to abandon the office building project before the
State announced Project Neon. The State thus asserts the
damages cannot be said to have been caused by the State's
alleged delay in initiating condemnation procedures following
its announcement. Finally, the State argues the value of the
professional services were not lost because the property
retains its office zoning.
Landowners respond that Nevada law does not exclude any
particular type of pre-condemnation damages nor does it
preclude pre-announcement activity from being considered.
They also argue the value of the services was lost because
given the uncertainty surrounding Project Neon, the
Landowners could not make use of the services they had paid
for, as it would have been foolhardy to build an office
building in light of the proposed condemnation.
judgment is appropriate if the movant shows “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). A dispute is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000). I view the evidence and
reasonable inferences in the light most favorable to the
non-moving party. James River Ins. Co. v. Hebert Schenk,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
recognizes a claim for pre-condemnation damages. State ex
rel. Dep't of Transp. v. Barsy, 941 P.2d 971, 976
(Nev. 1997), overruled on other grounds by GES, Inc. v.
Corbitt, 21 P.3d 11 (Nev. 2001), and modified in
part by Buzz Stew, LLC v. City of N. Las Vegas, 181 P.3d
670 (Nev. 2008) (en banc). But “not every decrease in
market value as a result of precondemnation activity is
compensable.” Sproul Homes of Nev. v. State ex rel.
Dep't of Highways, 611 P.2d 620, 622 (Nev. 1980). To
make out a pre-condemnation damages claim, the landowner must
show: (1) “an official action by the [would be]
condemnor amounting to an announcement of intent to
condemn;” (2) the condemnor “acted improperly
following the agency's announcement of its intent to
condemn, ” such as by “unreasonably delaying an
eminent domain action after announcing its intent to condemn
the landowner's property;” (3) resulting in
damages. Buzz Stew, 181 P.3d at 672-73;
Barsy, 941 P.2d at 976-77.
Landowners bear the burden of providing an evidentiary basis
to support the amount of damages they seek. Frantz v.
Johnson, 999 P.2d 351, 360 (Nev. 2000). “Although
the amount of damages need not be proven with mathematical
certainty, testimony on the amount may not be
speculative.” Clark Cty. Sch. Dist. v. Richardson
Const, Inc., 168 P.3d 87, 97 (Nev. 2007).
Landowners have not raised an issue of fact that the
State's post-announcement conduct caused them to lose the
value of the professional services. They paid to obtain
office zoning, they obtained that zoning, and that zoning
remains intact today. ECF No. 110-8 at 6. Landowner Jackson
testified that developing an office building is the preferred
plan if feasible. ECF No. 118-3 at 5. While there was some
evidence that in 2011 and 2012 an office building might not
be feasible, the Landowners' expert opined in 2016 that
the best use of the property is to hold it for future office
space development. ECF No. 110-8 at 7-8.
asserting that the State's delay left them in limbo about
whether to construct an office building, the Landowners are
really trying to recover for a lost opportunity, rather than
lost professional services. I previously granted summary
judgment in the State's favor on the lost rent claim
because the Landowners could not produce non-speculative
evidence to support it. To the extent the Landowners lost an
opportunity to develop an office building and thus lost
rents, they failed to present non-speculative evidence to
support that claim, as I previously ruled. Accordingly, I
grant the State's motion for summary judgment on the
claim for pre-condemnation damages in the form of lost
THEREFORE ORDERED that plaintiff State of Nevada's motion
for partial summary ...