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

United States District Court, D. Nevada

January 11, 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) Patrick G. Byrne, Esq. (NV Bar #7636) Michael Paretti, Esq. (NV Bar #13926) SNELL & WILMER L.L.P. Attorneys for Alon Las Vegas Resort, LL and Alon Leisure Management, LLC

          KAEMPFER CROWELL, Peter C. Bernhard, Esq. (NV Bar #734) Attorneys for Tishmar, 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

          AMENDED 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 amend their joint prehearing statement, previously filed and approved [Docs 56 and 57], for the benefit of this Court:

         I. Undisputed Facts

         The parties have agreed that the following facts are undisputed:

         A. The Parties' Relationship

         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”).

         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.

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

         8. The 5/5/15 LOI contains a provision stating that:

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

         B. The Property

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

         C. The Lien

         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.

         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.

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

         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

         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.

         3. Tishmar recorded a Memorandum of Lease Assumption agreement on October 16, 2014, Instrument No. 201410160002692, prior to YWS's agreement with Alon.

         5. YWS did not serve Tishmar with a pre-lien notice under NRS 108.245.

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

         2. If the Court determines that “visible construction” is necessary under the circumstances in this case, whether “visible construction” occurred prior to YWS' lien claim on the Alon Project.

         4. Whether YWS had a good-faith belief in the basis for recording its notice of lien in November of 2016.

         6. Whether the scope of services to be provided by YWS under the 5/5/15 LOI included design services for model rooms and mockups of rooms to be built in the resort.

         8. The ownership and management of Alon Las Vegas Resort, LLC and Alon Leisure Management, LLC.

         10. Whether the last construction work performed on the former Trump Sales building was in June, 2016.

         IV. Issues of Law to be Determined at the Evidentiary Hearing

         2. If the court determines that “visible construction” is a required element for a mechanic's lien claim under the circumstances described in Issue 1, whether the indicators of construction determined to have been present on the Property constitutes “visible construction” under Nevada law.

         4. Whether the lien release was consideration for Alon's agreement to attend mediation in light of the language in ...


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