United States District Court, D. Nevada
YWS Architects, LLC dba YWS Design & Architecture, a Nevada limited liability company, Plaintiff,
Alon Las Vegas Resort, LLC, a Delaware limited liability company; Alon Las Vegas Landco, LLC, a Delaware limited liability company; TISHMAR, LLC, a Nevada limited liability company, Defendants. Alon Las Vegas Resort, LLC, a Delaware limited liability company; Alon Leisure Management, LLC, a Delaware limited liability company, Counter-claimants,
YWS Architects, LLC dba YWS Design & Architecture, a Nevada limited liability company; Tom Wucherer, an individual; DOES 1 through 10; ROE CORPORATIONS 11-20, Counter-defendants.
LAW GROUP Leon F. Mead II, Esq. (NV Bar #5719) Sarah A. Mead,
Esq. (NV Bar #13725) 10161 Park Run Drive, Suite 150 Patrick
G. Byrne, Esq. (NV Bar #7636) Michael Paretti, Esq. (NV Bar
#13926) SNELL & WILMER L.L.P. Attorneys for Alon Las
Vegas Resort, LLC and Alon Leisure Management, LLC
GREENBERG TRAURIG, LLP Mark G. Tratos, Esq. (NV Bar #1086)
Donald L. Prunty, Esq. (NV Bar #8230) Shauna L. Norton, Esq.
(NV Bar #11320) Attorneys for YWS Architects, LLC
KAEMPFER CROWELL Peter C. Bernhard, Esq. (NV Bar #734)
Attorneys for Tishmar, LLC
JOINT PREHEARING STATEMENT PURSUANT TO ORDER SETTING
EVIDENTIARY HEARING [DOC 52]
briefing by all appropriate parties on Alon Las Vegas Resort,
LLC and Alon Leisure Management LLC's (collectively
“Alon”) Motion to Expunge YWS Architects,
LLC's Mechanic's Lien [Doc 31] Tishmar, LLC's
(“Tishmar”) Joinder in Alon's Motion [Doc
35], and Tishmar's Motion to Expunge YWS Architects,
LLC's Mechanic's Lien [Doc 32], the parties make the
following joint prehearing statement for the benefit of this
parties have agreed that the following facts are undisputed:
The Parties' Relationship
Architects, LLC (“YWS”) entered into an agreement
with Alon to perform architectural services for the
construction project formerly known as the Alon Resort
project in Las Vegas, Nevada (the “Project”),
located at 3120 S. Las Vegas Blvd., Las Vegas, Nevada, APN
Nos. 162-16-101-009, 162-16-101-011, and 162-09-403-004 (the
is the fee owner of APN Nos. 162-16-101-009 and
162-16-101-011 (the “Alon Parcels”). Tishmar is
the fee owner of APN No. 162-09-403- 004, which is leased by
Tishmar to Alon or its predecessors-in-interest (the
and YWS entered into a Letter of Intent (“10/29/14
LOI”) on October 29, 2014 for services relating to,
among other things, a review and analysis of the concept
design criteria documents (“CDCD's”) for the
Project and completion of a design feasibility analysis. YWS
completed the services pursuant to the 10/29/14 LOI and was
paid in full by Alon for those initial services.
and YWS entered into a later Letter of Intent dated May 5,
2015 (the “5/5/15 LOI”) in connection with
architectural services for the Project.
10/29/14 LOI and 5/5/15 LOI were valid, binding agreements
and governed the relationship between Alon and YWS.
performed architectural services for Alon under the LOIs.
sent a letter to YWS purporting to terminate the 5/5/15 LOI
on August 24, 2016.
5/5/15 LOI contains a provision stating that:
In the event any dispute pertaining to this LOI arises, the
parties agree to first try in good faith to settle the
dispute by mediation pursuant to the Construction Industry
Mediation Procedures of the American Arbitration Association.
Notwithstanding Sections M-9 and M-12 of the Construction
Industry Mediation Procedures, neither party's failure to
attend any mediation conference or exercise their best
efforts to prepare and engage in mediation is actionable by
the other party as a claim of failure to perform or to act in
good faith, and either party may terminate mediation at any
time by giving notice to the other party and, if applicable,
the mediator. If the dispute is not settled by mediation, it
may be resolved by final and binding arbitration, if the
parties so agree, or otherwise by civil litigation in a court
of competent jurisdiction in Clark County, Nevada.
Tishmar is not a party to any agreement with YWS, including
the agreement between Alon and YWS for the Project.
Property is located on Las Vegas Boulevard, across from the
Fencing with advertising for the future resort was erected
surrounding the Property.
previously-existing structure, identified as the former Trump
sales building, was partially demolished and model rooms were
constructed within the structure on the Alon Parcel.
September 19, 2016, YWS recorded a notice of mechanics'
lien against the Alon parcels.
October 6, 2016, Alon demanded that the lien be released by
close of business on Friday October 7, 2016 based on its
position that the lien was improperly and unlawfully
recorded, or else Alon stated it would not participate in
mediation of their dispute.
October 7, 2016, YWS recorded a release of its lien recorded
September 19, 2016.
parties attended mediation on November 17, 2016 and presented
their respective cases to Floyd Hale, Esq. of JAMS. No.
resolution was reached at the mediation. Tishmar did not
participate in the mediation.
November 21, 2016, YWS recorded a second notice of
mechanics' lien on the Property.
served its notice of its November 21, 2016 mechanics'
lien on the Property on Alon by certified mail return receipt
There is no priority dispute at issue in this case.
performed no work for Alon between September 19, 2016 and
November 21, 2016.
Facts Not Admitted, but Not Contested at the Evidentiary
following alleged facts are not admitted by all parties,
however, none of the parties will contest these facts at the
1. YWS' allegation that it is owed any amount of money
from Alon is disputed by Alon, but will not be contested for
purposes of the evidentiary hearing.
2. YWS' allegation that it is the rightful owner of the
architectural plans and other IP work described in YWS'
Complaint and Alon's Counterclaim is disputed by Alon,
but will not be contested for purposes of the evidentiary
3. Tishmar recorded a Memorandum of Lease Assumption
agreement on October 16, 2014, Instrument No.
201410160002692, prior to YWS's agreement with Alon.
4. From and after entering into the lease for the Tishmar
Parcel, Tishmar recorded Notices of Non-Responsibility as to
the Tishmar Parcel, most recently on September 29, 2006,
August 22, 2007, September 10, 2015, and November 20, 2015.
5. YWS did not serve Tishmar with a pre-lien notice under NRS
Issues of Fact to be Determined at the ...