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YWS Architects, LLC v. Alon Las Vegas Resort, LLC

United States District Court, D. Nevada

January 10, 2018

YWS Architects, LLC dba YWS Design & Architecture, a Nevada limited liability company, Plaintiff,
v.
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,
v.
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.

          MEAD 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]

         After 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 Court:

         I. Undisputed Facts

         The parties have agreed that the following facts are undisputed:

         A. The Parties' Relationship

         1. YWS 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 “Property”).

         2. Alon 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 “Tishmar Parcel”).

         3. Alon 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.

         4. Alon 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.

         5. The 10/29/14 LOI and 5/5/15 LOI were valid, binding agreements and governed the relationship between Alon and YWS.

         6. YWS performed architectural services for Alon under the LOIs.

         7. Alon sent a letter to YWS purporting to terminate the 5/5/15 LOI on August 24, 2016.

         8. The 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.

         9. Tishmar is not a party to any agreement with YWS, including the agreement between Alon and YWS for the Project.

         B. The Property

         1. The Property is located on Las Vegas Boulevard, across from the Wynn.

         2. Fencing with advertising for the future resort was erected surrounding the Property.

         3. A 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.

         C. The Lien

         1. On September 19, 2016, YWS recorded a notice of mechanics' lien against the Alon parcels.

         2. On 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.

         3. On October 7, 2016, YWS recorded a release of its lien recorded September 19, 2016.

         4. The 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.

         5. On November 21, 2016, YWS recorded a second notice of mechanics' lien on the Property.

         6. YWS served its notice of its November 21, 2016 mechanics' lien on the Property on Alon by certified mail return receipt requested.

         7. There is no priority dispute at issue in this case.

         8. YWS performed no work for Alon between September 19, 2016 and November 21, 2016.

         II. Facts Not Admitted, but Not Contested at the Evidentiary Hearing

         The following alleged facts are not admitted by all parties, however, none of the parties will contest these facts at the evidentiary hearing.

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 hearing.
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 108.245.

         III. Issues of Fact to be Determined at the ...


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