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Electronically Filed Feb 26 2014 12:41 p.m. Tracie K. Lindeman Clerk of Supreme Court Docket 63394 Document 2014-06302
Electronically FiledFeb 26 2014 12:41 p.m.Tracie K. LindemanClerk of Supreme Court
Docket 63394 Document 2014-06302
TABLE OF CONTENTS
TABLE OF AUTHORITIES ii
JURISDICTIONAL STATEMENT 1
ISSUES PRESENTED 1
STATEMENT OF THE CASE 2
STANDARD OF REVIEW 6
SUMMARY OF THE ARGUMENTS 7
LEGAL ARGUMENTS 9
A. Whether the District Court Erred by Entering Judgment against Appellant when the Arbitration Award was based on Matters Clearly Outside of the Scope of the Arbitration Agreement'?
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1. The determination of Arbitrability is for the District Court, Not the Arbitrator and it was Error for the Arbitrator to Allow the Counterclaims of Defendants To be Arbitrated Substantially Expanding the Scope of Matters to be Arbitrated and Far Exceeding the Orders of the District Court 9
2. The arbitration agreement is not susceptible to an Interpretation which includes all of the matters set Forth in Defendant's counterclaims 12
B. Whether the District Court Erred by Entering Judgment Against Appellant when the Arbitration Award was a Default Award? 14
1. The Arbitrator should have granted the Motion of Appellant to Set Aside the Default as good cause was shown 14
CONCLUSION 18 CERTLFICATE OF COMPLIANCE 20 CERTIFICATE OF MAILING 21
TABLE OF AUTHORITIES STATE CASES:
NEVADA STATE CASES: Anvui, LLC v. G.L Dragon, LLC., 123 Nev. 212, 215, 163 P.3d 405,407(2007) 6,7 Clark County Pub. Emp. V. Pearson, 106 Nev. 587, 590, 798, P.2d 136,137(1990) 7 Sealed Unit Parts v. Alpha Gamma Ch., 668 P.2d 288, 99 Nev. 641 (1983) 7, 17 Epstein v. Epstein, 113 Nev. 1401, 1405, 950 P.2d 771, 773 (1997) 7 Kahn v. Orme, 108 Nev. 510, 513 835 P.2d 790, 792 (1992) 7 Intl Assoc. Firefighters v. City of Las Vegas, 104 Nev. 615, 764 P.2d 478 (1988) 9, 12 Tahoe Village Realty v. DeSmet, 95 Nev. 131, 590 P.2d 1158 (1979) 13 Intermountain Lumber v. Glen Falls, 83 Nev. 126,424 P.2d 884 (1967) 14 Cicerchia v. Cicerchia, 77 Nev. 158, 360 P.2d 839 (1961) 17
3 OTHER FEDERAL CASES:
4 Jacobs Constructors v. NPS Energy Services, 264 F.3d 365,
5 371 3d Cir. (2001) 6
6 AT & T Technologies v. Communications Workers of America,
7 475, U.S. 643, 649, 106 S. Ct. 1415, 1418, 89 L.Ed.2d
8 648 (1986) 9,12
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10 STATUTORY AUTHORITIES: 11
12 NEVADA STATUTES
13 NRAP 3A(b)(1) 1
14 NRCP 55(c) 8,13,15,16, 17
15 NRCP 60(b) 14, 15
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APPELLANTS' OPENING BRIEF
2 I. JURISDICTIONAL STATEMENT
Under Nevada Rules of Appellate Procedure (NRAP) Rule 3A(b)(1) the
5 Supreme Court of Nevada may hear an appeal from a final judgment of a
district court in an action or proceeding commenced in the court in which the
underlying judgment was rendered. Here, the underlying action was
commenced in the District Court of the Eighth Judicial District of the State of
Nevada, in Clark County, Nevada. The Complaint was filed on April 28 2008
and a case was opened under case no. A561849. A fmal judgment was entered
on December 4, 2009. Appellant filed for bankruptcy protection and the
trustee and parties to the case stipulated in the bankruptcy that the case would
be timely appealed if a Notice of Appeal was filed within 30 days of the entry
of the bankruptcy stipulation which was May 17, 2013. Appellant filed its
Notice of Appeal from the above-referenced Judgment on June 17, 2013.
U. ISS'UES PRESENTED
1. Whether the District Court erred by confirming the Arbitration
Award and entering Judgment against Appellant when the Arbitration Award
was based on matters clearly outside the scope of the arbitration agreement?
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1 2. Whether the District Court erred by confirming the Arbitration
Award and entering Judgment against Appellant when the Arbitration Award
was a default award?
5 IL STATEMENT OF TIFF, CASE AND RELEVANT FACTS
This matter initially relates to the intent of the Appellant and the
Defendants (Misso and Sharp) to form a partnership to engage in the real estate
investment business. Appellant was engaged in seminar marketing of real
estate investment products, was experienced, had developed materials and the
12 Defendants sought to get involved in the business with Appellant. On October
26, 2007 they entered into an agreement entitled "Intent to Form a
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Partnership'. Unfortunately, the parties to the agreement allegedly did not live
16 up to their obligations, ultimately resulting in the filing of a lawsuit by
Appellant (the instant case filed in Clark County, Nevada).
19 The initial pleading in this matter was a Complaint filed by the
Appellant, Tonj a Demoff. (APP0001) The Complaint set forth a claim by
22 Demoff and a company which she controlled, Financial Freedom Seminar
System, LLC, that Jim Sharp and Otto Miss° had breached the October 26,
25 2007 agreement wherein Appellant and her company had agreed to provide
26 financial freedom information, materials, seminar presentation techniques and
knowledge and experience to a joint venture with Jim Sharp and Otto Misso.
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1 H The Complaint alleged a breach of the agreement because Sharp and Misso
2 II failed to form the joint venture entity, perform any marketing, they failed to 3 II
perform any seminars and failed to monitor the office which had been set up
for the joint venture. In addition, Miss° was allegedly supposed to perform
property management services among other services on a property owned by
Demoff in Memphis, Tennessee. The Complaint alleged that Misso failed to
perform these services. The claims for relief in the Complaint included: 1) 10
Breach of Contract; 2) Breach of the Duty of Good Faith and Fair Dealing; 3)
Breach of Fiduciary Duty; 4) Negligence on the part of Miss° and Sharp; 5)
Misrepresentation; and 6) Declaratory Relief.
Upon being served with the Summons and Complaint, the Defendants
16 II sso and Sharp) filed a Motion to Dismiss the Complaint or in the 17
Alternative for Change of Venue or Order for Arbitration. (APP0012) On
September 2, 2008, Judge Gonzalez denied the Motion in part and ordered, sua 20
sponte, that the case be arbitrated stating in pertinent part: 21
"3. The Intent to form a partnership agreement executed by FFSS, Misso and Sharp on or about October 26, 2007 contains a provision for arbitration and the Court, sua sponte, finds that the claims in this action should be arbitrated in Nevada..." (APP0581)
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Complaint are to be arbitrated. Thereafter, the Defendants filed a Motion to
Clarify the September 2, 2008 Order regarding whether the arbitration was to
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1 I IIlbinding or non-binding. Judge Gonzalez clarified the September 2, 2008 Order
2 in a subsequent Order dated October 29, 2008, wherein she determined that the 3
arbitration was to be binding. 4
5 In the October 29, 2008 Order Judge Gonzalez again stated: "IT IS
FURTHER ORDERED by the Court that the claims in this action be
submitted to binding arbitration..." (APP0342)(Emphasis Added). Again,
only the claims in the Complaint were to be arbitrated. At the time of the
October 29, 2008 Order the Defendants had not Answered the Complaint.
12 On December 9, 2008, the arbitrator in this matter, attorney Jay Young,
memorialized a December 3, 2008 conference between counsel for the
15 Appellant (Demoff) and Defendants (Misso, Sharp) in a document entitled
16 "Arbitrator's Scheduling Order No. 1." (APP0351). Arbitrator Jay Young
indicates that no deadlines for discovery are set out because "...parties
19 anticipate the filing of cross claims and possibly a third party complaint..."
(APP0352) On January 27, 2009, Defendants (Misso and Sharp) file with the
22 Court a Counterclaim and Crossclaims. This document is 45 pages long and
23 sets forth claims not only against Appellant (Demoff) and Financial Freedom
25 Seminar Systems, LLC, but new crossdefendants which are not parties to the
26 October 26, 2007 agreement upon which the entire Order compelling
arbitration is based. The new parties include: Terrie Haynes, an individual,
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1 BBTNT Properties, LLC, and TDCO, LLC. The new claims asserted by
2 Defendants (Misso and Sharp) in their words set out the extremely broad scope
of these claims: "...this case involves a portion of a far-ranging and complex
5 investment fraud scheme spearheaded by Demoff..." (APP0368) And, in fact,
Defendants brought counter-claims for everything under the sun, including:
Civil RICO, violation of California Civil Code 1710 fraud, negligent
misrepresentation, breach of fiduciary duty, conversion, recission, Fraud in the
Inducement, constructive trust, conspiracy, violation of California franchise
12 code, unjust enrichment, violation of California unfair business practices act,
and declaratory relief.
15 In addition, the facts alleged in the Counterclaim now encompass a real
16 estate deal in Long Beach, California, Demoff's dealings with a person named
18 Kemery Day, and other persons, specifically: Amanda Flores and Caroline
19 Frilot, Eric Baker, James Stewart, Wade Holland and Karen Kane. The
Counterclaim articulates a series of alleged "scams" referred to by the
22 Defendants as: the Villa Rica1525 Scam, the DLN Scam, the Belize Scam, the
Wealth Centers Scam, and the Demoff Foundation Scam.
25 The day after the filing of the Answer, Counterclaims and Crossclaims
26 (in the nature of third party complaint), the attorneys representing Appellant
filed a Motion to Withdraw as Counsel and to Adjudicate Attorneys Lien. (see
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Register of Action APP0557) On March 5, 2009 the District Court granted
2 Appellant's counsel's Motion to Withdraw (Register of Action APP0557)
Appellant was left without counsel and prior counsel had not answered the
5 Counterclaim nor moved to dismiss the new claims. Thereafter on March 30, 6
2009 the Arbitrator, sua sponte, entered a Default against the Appellant.
Appellant retained new counsel James E. Smith, who made an
9 appearance by filing a Notice of Appearance on May 6, 2009 (Register of
Action APP0557) On July 24, 2009 Appellant's counsel submitted to the
12 District Court a Status Report. (APP0417) On August 3, 2009, Appellant's
counsel filed an Opposition to Application for Default Judgment and Motion to
15 Set Aside Default. (APP0508) Apparently, the arbitrator Jay Young, ignored
the Appellant's Motion to Set Aside the Default because without Order or
explanation, Jay Young entered a final Arbitration Award on October 7, 2009.
19 On December 4, 2009 an Order was entered by the District Court confirming
the Arbitration Award. (APP0505) This Appeal follows.
22 IV. STANDARD OF REVIEW
The interpretation of a clause within a contract is a question of law,
25 which this court will review de novo. Jacobs Constructors v. NPS Energy
26 Services, 264 F.3d 365, 371 (3d Cir.2001); see also Anvui, LLC v. G.L.
Dragon, LLC., 123 Nev. 212, 215, 163 P.3d 405, 407 (2007). -Whether a
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dispute is arbitrable is a question of construction of contract. Clark County
2 Pub. Emp. v. Pearson, 106 Nev. 587, 590, 798 P.2d 136, 137 (1990).
The standard of review whether to set aside an entry of default is abuse
5 of discretion. Sealed Unit Parts v. Alpha Gamma Ch., 99 Nev. 641, 643, 668 6
P.2d 288, 289 (1983), overruled on other grounds by Epstein v. Epstein, 113
8 Nev. 1401, 1405, 950 P.2d 771, 773 (1997); Kahn v. Orme, 108 Nev. 510, 513,
9 835 P.2d 790, 792 (1992).
V. SUMMARY OF THE ARGUMENTS
12 The October 26, 2007 agreement had a narrow arbitration clause limiting
the arbitrable issues to those matters concerning the new partnership/joint
15 venture. The original Complaint filed by the Appellant in the case limited its
16 claims to the partnership/joint venture matters. The case was ordered to
18 arbitration by the District Court and only after the matter was before the
19 arbitrator did the Defendants (Misso and Sharp) file the counterclaims and
crossclaims. These new claims greatly exceed the limited arbitration clause in
22 the October 26, 2007 agreement.
The law in the United States and Nevada indicates that arbitration is
25 limited to what the parties to the contract containing the arbitration clause
26 agree to. While courts favor arbitration, if the scope of the clause is not subject 27
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to a reasonable interpretation that arbitration was agreed to, then the arbitration
should not be compelled with respect to ancillary matters. The counterclaims
ruled upon by the arbitrator (in a default proceeding) exceeded the scope of the
5 arbitration clause in the October 26, 2007 agreement and the award should be
determined to be void.
In addition, the Appellant was changing attorneys at the exact time the
9 counterclaims were filed by the Defendants (Misso and Sharp). As such, an
Answer to the counterclaims was not timely filed and a default was entered by
12 the arbitrator against Appellant. Prior to any scheduled arbitration hearing,
new counsel for the Appellant filed a Motion to Set Aside the Default,
15 however, the arbitrator did not rule on this motion and entered an Arbitration
16 Award against the Appellant. Appellant contends that the arbitrator abused his
discretion by not setting aside the default. Further, the District Court abused its
19 discretion by entering a Judgment on the Arbitration Award.
Appellant believes that the law in the State of Nevada clearly favors
22 hearing matters on the merits. The law abhors a default. NRCP Rule 55(c)
allows for a default to be set aside if "good cause" can be shown. Appellant's
25 counsel indicated in the Motion to Set Aside the Default its good cause,
26 including the Appellant's intent to participate in the litigation. And further,
described the withdrawal of counsel for Appellant and previous counsel's
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1 II failure to Answer the counterclaims The arbitration hearing had not yet been
set at the time Appellant sought to set aside the default a period of slightly
more than four (4) months had gone by since the entry of the default.
VI. LEGAL ARGUMENTS
A. Whether the District Court Erred by Entering Judgment against Appellant when the Arbitration Award was based on Matters Clearly Outside of the Scope of the Arbitration Agreement?
1. The determination of Arbitrability is for the District Court, Not the Arbitrator and it was Error for the Arbitrator to Allow the Counterclaims of Defendants to be Arbitrated Substantially Expanding the Scope of Matters to be Arbitrated and Far Exceeding the Orders of the District Court.
Whether a dispute is arbitrable is essentially a question of construction
of a contract. Thus, the reviewing court is obligated to make its own
independent determination on this issue, and should not defer to the district
court's determination. "Unless the parties clearly and unmistakably provide
otherwise in their agreement, the question of arbitrability is to be decided by
the district court, not the arbitrator." Intl Assoc. Firefighters v. City of Las
Vegas, 104 Nev. 615, 620 n. 6, 764 P.2d 478, 481 n. 6 (1988) (quoting AT & T
Technologies v. Communications Workers of America, 475 U.S. 643, 649, 106
S.Ct. 1415, 1418, 89 L.Ed.2d 648 (1986)).
The original Order by District Court Judge Gonzalez and the subsequent
Order clarifying the original Order compelling Arbitration stated specifically,
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that the Arbitration was to cover the issues with respect to the October 26,
2 2007 agreement. The October 26, 2007 agreement was a contract to
preliminarily form a partnership/joint venture to engage in the real estate 4
5 investment seminar business. A reading of the document shows that it was to
be an enforceable letter of intent and was limited in detail comprising only two
(2) short pages. The arbitration clause was drafted by a non-attorney (the
Appellant) and reads as follows: 10
"All parties agree that in the event of a dispute that they will make every attempt to resolve the dispute prior to seeking any legal action. All parties agree to prepare and present any dispute in writing to one of the partners in FFSS prior to any legal action or they hereby waive their right to damages that may have been awarded in arbitration or a court of law. The essence of this clause is to facilitate open and honest communication between all partners. Should communication efforts fail all parties agree to dispute resolution by a qualified mediator and finally arbitration."
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18 The District Court did not broaden the scope of the arbitration clause of the
19 October 26, 2007 agreement. Judge Gonzalez simply believed that the matter
(the Complaint of the Appellant) should be resolved by arbitration, in light of 21
22 the Appellant's claims (breach of contract, dissolution of the partnership, etc.). 23 Judge Gonzalez never saw the counterclaims of Defendants (Misso and Sharp) 24
25 because they were interposed for the first time only to the arbitrator after the
26 Order compelling the arbitration. The arbitrator allowing the counterclaims to 27
28 be determined in the arbitration was usurping the power of the District Court to
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determine the scope of the matters to be arbitrated. Judge Gonzalez never
ordered the matters in the counterclaim to be arbitrated. Only the arbitrator
made that determination. As such, the Arbitration Award should be deemed to
5 be void.
The counterclaims of Defendants included breach of the October 26,
2007 agreement, but also included a variety of claims stemming from alleged
violations of the California Civil Code including unfair business acts, fraud and
franchise law violations. These all exceed the scope of the arbitration
agreement which limits the arbitration to issues concerning the October 26,
2007 agreement. In addition, the counterclaims alleged a claim of Civil Rico
and sought relief for other real estate transactions which were not related to the
October 26, 2007 agreement. The counterclaims of Defendants also added
other entities and individuals who were non-parties to the October 26, 2007
agreement and asserted completely unrelated matters. It is hard to imagine that
a two (2) page agreement like the October 26, 2007 agreement alone could give
22 rise to more than forty five (45) pages of specific allegations.
2. The arbitration agreement is not susceptible to an interpretation which includes all of the matters set forth in Defendants' counterclaims.
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and a party to a contract cannot be required to submit to arbitration any dispute
2 which he has not agreed to submit. AT & T Technologies v. Communications
Workers of America, 475 U.S. 643, 649, 106 S.Ct. 1415, 1418, 89 L.Ed.2d 648
5 (1986). Disputes are presumptively arbitrable, and courts should order
arbitration of particular grievances "unless it may be said with positive
assurance that the arbitration clause is not susceptible of an interpretation
that covers the asserted dispute." Infl Assoc. Firefighters v. City of Las
Vegas, 104 Nev. 615, 764 P.2d 478 (1988) (quoting AT & T Technologies, 475
U.S. at 650, 106 S.Ct. at 1419) (emphasis added).'
Here, Appellant did not agree to have her rights with respect to alleged
Civil RICO, statutory California Civil Law matters or unrelated real estate
transactions be determined by binding arbitration. Had this been the intent,
surely the parties to the October 26, 2007 agreement could have indicated that
they wanted to have all of their past and future business dealings resolved by
In the Federal arena there are many courts which make it clear that the first task of a court
asked to compel arbitration of a dispute is to determine whether the parties agreed to
arbitrate that dispute. Moses H Cone Memorial Hospital, 460 U.S., at 24, 103 S.Ct., at
941. See Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 400 -404, 87 S.Ct.
1801,1804-1806, 18 L.Ed.2d 1270 (1967); Southland Corp. v. Keating, 465 U.S. 1, 12,104
S.Ct. 852, 859, 79 L.Ed.2d 1 (1984) Mitsubishi Motors Corporation v. Solersoler v.
Mitsubishi Motors Corporation, 473 U.S. 614, 105 S.Ct. 3346, 87 L.Ed.2d 444 (1985).
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1 II arbitration. Yet, this is not what the clause states. The agreement simply states
2 II that "...M the event of a dispute the parties ...agree to dispute 3
resolution...arbitration." The term "parties" implies the signatories of the 4
agreement. The lack of any expansive language, such as: "all matters
concerning any dealings between the parties" is noticeably absent. In addition 7
the clause implies only that the contract and partnership issues are subject to
arbitration. Nowhere do the parties submit to arbitration claims of statutory 10 II 11
violations or civil RICO allegations. Without specifically including these
matters in the agreement the parties have not included them in matters to be
determined by arbitration. The arbitration clause in the October 26, 2007 14
agreement concerning a joint venture between the parties therefore is not
subject to an interpretation which would include the matters set forth in 17
the Counterclaim (with the exception of the breach of contract claims). As
such the Arbitration Award should be deemed by this Honorable Court to be 20
void. 21
B. Whether the District Court Erred by Entering Judgment against Appellant when the Arbitration Award was a Default Award?
1. The Arbitrator should have granted the Motion of Appellant to Set Aside the Default as good cause was shown.
NRCP 55(c) authorizes a court to set aside an entry of default upon good 27
cause shown. See Tahoe Village Realty v. DeSmet, 95 Nev. 131, 590 P.2d 28
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(1967). The "good cause" standard is substantially broader than the standard
which must be met pursuant to NRCP 60(b) with respect to vacating a default
judgment. Intermountain Lumber v. Glens Falls, supra. The facts in this case
warrant a reversal of the arbitrator's decision not to set aside the default
against Appellant.
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On January 27, 2009 the Defendants (Misso and Sharp) filed with the
District Court their counterclaims and crossclaims. One day later the
3 Appellant's attorneys filed a Motion to Withdraw (January 28, 2009). Prior to
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with respect to the counterclaims and crossclaims of Defendants (Misso and
17 Sharp). Because no Answer was filed with respect to the counterclaims and
18 crossclaims, the arbitrator, Jay Young entered a Default against Appellant on
20 March 30, 2009. Appellant hired new counsel who appeared in the matter on
21 May 6, 2009 (a notice of appearance was filed with the District Court). The
record of the arbitration proceeding is scarce, but it is believed that no
24 arbitration hearing had been set in the matter when Appellant's counsel filed a
status report with the District Court on July 24, 2009. 26
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On August 3, 2009 Appellant filed an Opposition to the Defendants'
Application for Default Judgment and Motion to Set Aside the Default. No
hearing on the Motion was held and no Order or Findings of Fact or
5 Conclusions of Law denying the Motion to Set Aside were made by the
arbitrator. The arbitrator determined to enter an Arbitration Award in favor of
the Defendants. This was done on September 9, 2009 with a subsequent forty
one (41) page Findings of Fact and Conclusions of Law being issued on
October 7, 2009.
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13 The October 7, 2009 Findings of Fact and Conclusions of Law do not
14 address the application to set aside the default. As such, Appellant is left to 15
speculate as to why the arbitrator did not set aside the Default. Appellant 16
17 contends that the failure of the arbitrator to set aside the default was an abuse
18 of discretion which was later ratified by the District Court confirming the 19
20 Arbitration Award. The arbitrator should have set aside the default as
21 Appellant's new counsel had set forth "good cause" as required by NRCP Rule 22
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26 2 (c) Setting aside default. For good cause shown the court may set aside an entry of
27 default and, if a judgment by default has been entered, may likewise set it aside in
28 accordance with Rule 60.
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In the Opposition to Application for Default Judgment and Motion to Set
2 Aside Default which was filed by Appellant's attorney, James Smith, three
"good cause" reasons were given by counsel for Appellant as to why the
5 Default should be set aside. Counsel for Appellant specifically cited to NRCP
Rule 55(c) when he stated: 7
9 Esq., to represent them up until he was allowed to withdraw. An Answer to the "Plaintiffs/Counterdefendants relied upon their counsel L. Christopher Rose,
10 Counterclaim was due before that time as his firm was served with the Counterclaim on December 10, 2008. Defendant Tonj a Demoff could not
11 represent Financial Freedom Seminar System, LLC because she is not an 12 attorney who can represent a legal entity. Defendant Tonja Demoff could not
obtain a copy of her file a(s) sic L. Christopher Rose, Esq. asserted a retaining 13 lien on his law firm's behalf. In fact an Affidavit or Declaration will be filed 14 wherein Ms. Demoff will state that she never received a copy of the 15 Counterclaim and was told by Arbitrator Jay Young's office, after the March 5,
2009 withdrawal, that Jay Young, Esq. could only speak to her attorney and not 16 Ms. Demoff herself about this case." (APP00417) 17
In addition, the Motion to Set Aside the Default came prior to a hearing 16
19 date to be scheduled for the arbitration and only four (4) months after the entry
20 of the Default. It should have been clear to the arbitrator that the Appellant 21
22 needed some reasonable time to obtain new counsel. And perhaps more time
23 than normal due to the retaining lien being placed on the file by L. Christopher 24
25 Rose. Surely, once Mr. Smith made an appearance in the case (by filing his
26 notice of appearance with the District Court on May 6, 2009) the arbitrator 27
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1 should have expected that Tonja Demoff wanted to participate in the arbitration
2 process. She was the original Plaintiff in the case. 3
4 The Nevada Supreme Court has repeatedly held that it favors the
resolution of matters on the merits and that NRCP Rule 55 (c) is to be "very 6
7 liberally applied." Sealed Unit Parts Co., Inc. v. Alpha Gamma Chapter of
Gamma Phi Beta Sorority Inc. of Reno, 668 P.2d 288, 99 Nev. 641 (Nev.,
1983); Cicerchia v. Cicerchia, 77 Nev. 158, 360 P.2d 839 (1961).
Appellant's second attorney in the underlying matter, James Smith,
relied heavily upon this Court's analysis in Sealed Unit Parts Co., Inc. v. Alpha
Gamma Chapter of Gamma Phi Beta Sorority Inc. of Reno, supra. Mr. Smith
indicated the good cause reasons in his brief, he set forth the basis for a
meritorious defense and he showed that the Defendants (Misso and Sharp)
would not be prejudiced by the inadvertent delay. (APP00420). The arbitrator
ignored all of these arguments and applied a harsh determination that will
allow, without the Supreme Court's intervention, an injustice to stand.
Appellant respectfully requests this Honorable Court to Remand this matter to
the District Court such that the case may be heard on the merits.
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VII. CONCLUSION
2 The arbitrator in the underlying matter allowed for the scope of matters to be
heard in the arbitration to significantly exceed the scope set out by District
5 Court Judge Gonzalez. The arbitrator rather than the District Court Judge 6 interpreted the October 26, 2007 agreement and the scope of the arbitration
clause and in doing so infringed on the purview of the District Court Judge.
The Nevada Supreme Court may review the scope of the October 26, 2007
arbitration agreement de novo. A correct interpretation that the counterclaims
of Defendants (Misso and Sharp) were beyond the scope of the agreement is
warranted and the Arbitration Award should be declared void.
In addition, the arbitrator denied Appellant's Motion to Set Aside the
Default, despite "good cause" being shown by Appellant's counsel. The
arbitrator denied Appellant the right to have her case heard on the merits. The
denial of the Motion to Set Aside Default was an abuse of discretion and the
District Court continued the abuse of discretion by entering a Judgment on the
22 default Arbitration Award. Appellant requests that the Nevada Supreme Court 23
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set aside the default and allow the matter to be heard on the merits.
DATED this PAPCv day of February, 2014.
LAW OFFICES OF P. STERLING KERR
By: P. STE rKERR, ESQ. Nevada Bar No. 3978 2450 St. Rose Parkway, Suite #120 Henderson, Nevada 89074 Attorneys for Appellant
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DATED this 'day of February, 2014 22
1 CERTIFICATE OF COMPLIANCE
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1. I hereby certify that this brief complies with the formatting requirements
of NRAP 32(a)(4), the typeface requirements of NRAP 32(a)(5) and the type
style requirements of NRAP 32(a)(6) because this brief has been prepared in a
6 proportionally spaced typeface using Corel WordPerfect, version X5 in 14
7 point font and Times New Roman type style. 2. I further certify that this brief complies with the page- or type-volume
limitations of NRAP 32(a)(7) because, excluding the parts of the brief
exempted by NRAP 32(a)(7)(C), it does not exceed 30 pages.
3. Finally, I hereby certify that I have read this appellate brief, and to the
best of my knowledge, information, and belief, it is not frivolous or interposed
for any improper purpose. I further certify that this brief complies with all
applicable Nevada Rules of Appellate Procedure, in particular NRAP 28(e)(1),
which requires every assertion in the brief regarding matters in the record to be
supported by a reference to the page and volume number, if any, or the
transcript or appendix where the matter relied on is to be found. I understand
that I may be subject to sanctions in the event that the accompanying brief is
not in conformity with the requirements of the Nevada Rules of Appellate
Procedure.
LAW By:
ICES OF P. STERLING KERR 23
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eilin-g Kerr, Esq. vada Bar No. 3978
2450 St. Rose Parkway, Suite #120 Henderson, Nevada 89074 Attorney for Appellant
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CERTIFICATE OF MAILING
I hereby certify that on the ' . .l.Qday of February, 2014, I served the
foregoing APPELLANT'S OPENING BRIEF and a copy of the JOINT
APPENDIX on CD-ROM, by placing a true and correct copy in the United
States Mail, postage prepaid, addressed to the following:
Bradley J. Richardson GORDAN SILVER 3690 H. Hughes Pkwy, 9th Floor Las Vegas, NV 89169 Attorney for Respondents
An employee of the LAW OFFICES OF
P. STERLING KERR
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