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

Filing 57

ORDER approving Prehearing Statement Re: 52 Order, Signed by Magistrate Judge Cam Ferenbach on 1/10/2018. (Copies have been distributed pursuant to the NEF - JM)

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 Leon F. Mead II, Esq. Nevada Bar No. 5719 eMail: leon@meadlawgroup.com Sarah A. Mead, Esq. Nevada Bar No. 13725 eMail: sarah@meadlawgroup.com MEAD LAW GROUP 10161 Park Run Drive, Suite 150 Las Vegas, NV 89145 Tel: 702.869-0192 Fax: 702.922.3831 Patrick G. Byrne, Esq. Nevada Bar No. 7636 eMail: pbyrne@swlaw.com Michael Paretti, Esq. Nevada Bar No. 13926 eMail: mparetti@swlaw.com SNELL & WILMER L.L.P. 3800 Howard Hughes Parkway, Suite 1100 Las Vegas, Nevada 89169 Tel: 702.784.5200 Fax: 702.784.5252 15 16 17 Attorneys for Defendants and Counter-claimants ALON LAS VEGAS RESORT, LLC and ALON LEISURE MANAGEMENT, LLC 18 UNITED STATES DISTRICT COURT 19 DISTRICT OF NEVADA 20 YWS Architects, LLC dba YWS Design & 21 Architecture, a Nevada limited liability company, 22 Plaintiff, 23 24 vs. Case No.: 2:17-CV-01417-RFB-VCF JOINT PREHEARING STATEMENT PURSUANT TO ORDER SETTING EVIDENTIARY HEARING [DOC 52] Alon Las Vegas Resort, LLC, a Delaware limited liability company; Alon Las Vegas 26 Landco, LLC, a Delaware limited liability company; TISHMAR, LLC, a Nevada 27 limited liability company, 25 28 Defendants. Mead Law Group 10161 Park Run Dr. Suite 150 Las Vegas, NV 89145 T. 702 869-0192 F/. 702.922.3831 1 1 2 Alon Las Vegas Resort, LLC, a Delaware limited liability company; Alon Leisure 3 Management, LLC, a Delaware limited 4 liability company, Counter-claimants, 5 6 vs. 7 YWS Architects, LLC dba YWS Design & Architecture, a Nevada limited liability 8 company; Tom Wucherer, an individual; 9 DOES 1 through 10; ROE CORPORATIONS 11-20, 10 Counter-defendants. 11 12 After briefing by all appropriate parties on Alon Las Vegas Resort, LLC and Alon 13 Leisure Management LLC’s (collectively “Alon”) Motion to Expunge YWS Architects, 14 LLC’s Mechanic’s Lien [Doc 31] Tishmar, LLC’s (“Tishmar”) Joinder in Alon’s Motion 15 [Doc 35], and Tishmar’s Motion to Expunge YWS Architects, LLC’s Mechanic’s Lien 16 [Doc 32], the parties make the following joint prehearing statement for the benefit of this 17 Court: 18 I. 19 20 21 22 23 24 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, 25 162-16-101-011, and 162-09-403-004 (the “Property”). 26 2. Alon is the fee owner of APN Nos. 162-16-101-009 and 162-16-101-011 27 (the “Alon Parcels”). Tishmar is the fee owner of APN No. 162-09-40328 Mead Law Group 10161 Park Run Dr. Suite 150 Las Vegas, NV 89145 T. 702 869-0192 F/. 702.922.3831 2 1 004, which is leased by Tishmar to Alon or its predecessors-in-interest (the 2 “Tishmar Parcel”). 3 3. Alon and YWS entered into a Letter of Intent (“10/29/14 LOI”) on October 4 29, 2014 for services relating to, among other things, a review and analysis 5 of the concept design criteria documents (“CDCD’s”) for the Project and 6 completion of a design feasibility analysis. YWS completed the services 7 pursuant to the 10/29/14 LOI and was paid in full by Alon for those initial 8 services. 9 4. Alon and YWS entered into a later Letter of Intent dated May 5, 2015 (the 10 11 “5/5/15 LOI”) in connection with architectural services for the Project. 12 5. The 10/29/14 LOI and 5/5/15 LOI were valid, binding agreements and governed the relationship between Alon and YWS. 13 14 6. YWS performed architectural services for Alon under the LOIs. 15 7. Alon sent a letter to YWS purporting to terminate the 5/5/15 LOI on August 24, 2016. 16 17 8. The 5/5/15 LOI contains a provision stating that: 18 25 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. 26 9. Tishmar is not a party to any agreement with YWS, including the agreement 19 20 21 22 23 24 between Alon and YWS for the Project. 27 28 /// Mead Law Group 10161 Park Run Dr. Suite 150 Las Vegas, NV 89145 T. 702 869-0192 F/. 702.922.3831 3 1 B. The Property 2 1. The Property is located on Las Vegas Boulevard, across from the Wynn. 3 2. Fencing with advertising for the future resort was erected surrounding the 4 Property. 5 3. A previously-existing structure, identified as the former Trump sales 6 7 8 9 10 11 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. 12 2. On October 6, 2016, Alon demanded that the lien be released by close of 13 business on Friday October 7, 2016 based on its position that the lien was 14 improperly and unlawfully recorded, or else Alon stated it would not 15 participate in mediation of their dispute. 16 17 3. On October 7, 2016, YWS recorded a release of its lien recorded September 19, 2016. 18 4. The parties attended mediation on November 17, 2016 and presented their 19 respective cases to Floyd Hale, Esq. of JAMS. No resolution was reached 20 at the mediation. Tishmar did not participate in the mediation. 21 22 23 24 25 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. 26 8. YWS performed no work for Alon between September 19, 2016 and 27 November 21, 2016. 28 Mead Law Group 10161 Park Run Dr. Suite 150 Las Vegas, NV 89145 T. 702 869-0192 F/. 702.922.3831 4 1 II. Facts Not Admitted, but Not Contested at the Evidentiary Hearing 2 The following alleged facts are not admitted by all parties, however, none of the 3 parties will contest these facts at the evidentiary hearing. 4 1. YWS’ allegation that it is owed any amount of money from Alon is disputed 5 by Alon, but will not be contested for purposes of the evidentiary hearing. 6 2. 7 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 8 disputed by Alon, but will not be contested for purposes of the evidentiary 9 hearing. 10 3. 11 Tishmar recorded a Memorandum of Lease Assumption agreement on 12 October 16, 2014, Instrument No. 201410160002692, prior to YWS’s 13 agreement with Alon. 4. 14 From and after entering into the lease for the Tishmar Parcel, Tishmar 15 recorded Notices of Non-Responsibility as to the Tishmar Parcel, most 16 recently on September 29, 2006, August 22, 2007, September 10, 2015, and 17 November 20, 2015. 18 19 20 5. III. Issues of Fact to be Determined at the Evidentiary Hearing 1. 21 22 Whether under Nevada’s mechanic’s lien statute, providers of architectural services can be lien claimants. 2. 23 If the Court determines that “visible construction” is necessary under the circumstances in this case, whether “visible construction” occurred prior to 24 25 YWS did not serve Tishmar with a pre-lien notice under NRS 108.245. YWS’ lien claim on the Alon Project. 3. What the circumstances were surrounding YWS’ release of its September 26 2016 notice of lien. 27 4. Whether YWS had a good-faith belief in the basis for recording its notice 28 of lien in November of 2016. Mead Law Group 10161 Park Run Dr. Suite 150 Las Vegas, NV 89145 T. 702 869-0192 F/. 702.922.3831 5 1 5. Whether any of Tishmar’s Notices of Non-Responsibility were timely or 2 effective as to YWS’ claim of lien. 3 6. Whether the scope of services to be provided by YWS under the 5/5/15 LOI 4 included design services for model rooms and mockups of rooms to be built 5 in the resort. 6 7. 7 Whether the former Trump Sales building was leased to a third party entity, Alon Leisure Management LLC, which entered into an agreement with 8 Penta Building Group to perform the work. 9 8. 10 The ownership and management of Alon Las Vegas Resort, LLC and Alon Leisure Management, LLC. 11 9. 12 Whether Alon recorded a Notice of Non-Responsibility with respect to 13 Penta’s work, with the Clark County Recorder before the work was 14 performed. 10. 15 building was in June, 2016. 16 17 18 Whether the last construction work performed on the former Trump Sales IV. Issues of Law to be Determined at the Evidentiary Hearing 1. Whether “visible construction” is a required element for a mechanics’ lien 19 claim against property where there is a direct contract between the lien 20 claimant and the owner of the property, and there is no priority dispute. 21 2. 22 a mechanic’s lien claim under the circumstances described in Issue 1, 23 whether the indicators of construction determined to have been present on 24 25 If the court determines that “visible construction” is a required element for the Property constitutes “visible construction” under Nevada law. 3. Whether YWS permanently waived and is barred from asserting its rights 26 to lien the Property when it recorded its release of the September 19, 2016 27 lien; specifically, whether Nevada law prohibits recording a subsequent 28 notice of lien within the statutory period, after a release is recorded to Mead Law Group 10161 Park Run Dr. Suite 150 Las Vegas, NV 89145 T. 702 869-0192 F/. 702.922.3831 6 1 further settlement discussions and where there has been no satisfaction of 2 the underlying obligation. 3 4. Whether the lien release was consideration for Alon’s agreement to attend 4 mediation in light of the language in the Dispute Resolution section of the 5 LOI. 6 5. 7 Whether an architect who performs architectural work has any lien rights under Nevada law against a landlord who has recorded a memorandum of 8 lease and Notices of Non-Responsibility, without the architect serving a 9 pre-lien notice. 10 11 6. Whether YWS’ lien is timely. 12 7. Whether YWS’ lien should be limited to the amount of alleged unpaid work related to the former Trump sales office, if any. 13 14 15 16 17 V. Stipulated Exhibits A. The following exhibits are stipulated into evidence in this case and may be so marked by the clerk: Alon’s Exhibits 18 1. YWS September 19, 2016 Notice of Lien 19 2. YWS October 7, 2016 Release of Lien 20 3. YWS November 21, 2016 Notice of Lien 21 4. October 6, 2016 LFM Letter to Frank Flansburg Demanding Release 22 of September Notice of Lien 23 Alon specifically reserves the right to utilize any exhibits identified 24 25 by any other party. Tishmar’s Exhibits 26 5. Memorandum of Lease Assumption Agreement, recorded October 27 16, 2014 (Exhibit “A” to Tishmar’s motion to expunge); 28 Mead Law Group 10161 Park Run Dr. Suite 150 Las Vegas, NV 89145 T. 702 869-0192 F/. 702.922.3831 7 1 6. Notice of Non-Responsibility recorded September 10, 2015 (Exhibit 2 “B” to Tishmar’s motion to expunge); 3 7. Notice of Non-Responsibility recorded November 20, 2015 (Exhibit 4 “C” to Tishmar’s motion to expunge); 5 8. Clark County Recorder’s Office index, available at 6 https://recorder.co.clark.nv.us/recorderecommerce, noting Notices 7 of Non-Responsibility, attached as Exhibit “D” to Tishmar’s motion 8 to expunge; 9 10 9. Clark County Recorder’s Office index, available at 11 https://recorder.co.clark.nv.us/recorderecommerce, noting UCC 12 filing, attached as Exhibit “E” to Tishmar’s motion to expunge; 13 10. Assessor’s Parcel Map; 14 11. Assessor’s Aerial View; 15 Tishmar specifically reserves the right to utilize any exhibits 16 identified by any other party. 17 YWS’ Exhibits 18 12. 5/5/15 LOI 19 13. Clark County building permits and inspection records; permit 20 application submitted by Alon for interior demolition of Trump 21 sales building (4/21/15) 22 14. 23 24 25 Copies of Certified Return Receipts for service of November Notice of Lien 15. November 18, 2016 letter from Leon Mead to Frank Flansburg 16. November 23, 2016 letter from Frank Flansburg to Leon Mead. 26 YWS specifically reserves the right to utilize any exhibits identified 27 by any other party. 28 Mead Law Group 10161 Park Run Dr. Suite 150 Las Vegas, NV 89145 T. 702 869-0192 F/. 702.922.3831 8 1 VI. Disputed Proposed Exhibits 2 B. The following exhibits are not stipulated into evidence, but will be offered 3 by one or more of the parties and objected to by the party against whom 4 the same will be offered: 5 Alon’s Exhibits and Objections 6 7 17. No. ALON000742-748) YWS objection, Hearsay, lack foundation 8 9 18. Development Center (1/28/2016) (Bates No. ALON000817-822) 11 19. Clark County Building Department re Alon Development Center (1/28/2016) (Bates No. ALON000823) 13 14 Clark County Building Department Permit re Alon Leisure Management 10 12 Development Center Site Plan (dated December 18, 2015) (Bates 20. Lease Between ALON Las Vegas Resort LLC and Alon Leisure 15 Management LLC (Bates No. ALON000824-843) -- YWS 16 Objection: Hearsay, Lack Foundation 17 21. Notice of Non-Responsibility (Bates No. ALON000844-845) 18 22. Clark County Building Department Permit re Trump Sales Center 19 20 Office (Bates No. ALON000846-848) 23. 21 22 Objection: Hearsay, Lack Foundation 24. 23 24 25 Emails regarding Alon Sales Center (ALON000596-598) -- YWS Assessor’s Parcel Map of Parcel No. 162-16-101-09 and 162-16101-011 (ALON0001075) 25. Contract Between The Penta Building Group, LLC and Alon Las Vegas Resort, LLC (if produced by Penta PMK) -- YWS 26 Objection: Hearsay, Lack Foundation 27 28 Mead Law Group 10161 Park Run Dr. Suite 150 Las Vegas, NV 89145 T. 702 869-0192 F/. 702.922.3831 9 1 26. Documents demonstrating completion date of The Penta Building 2 Group, LLC’s work (if produced by Penta PMK) -- YWS 3 Objection: Hearsay, Lack Foundation 4 • Alon reserves the right to present additional exhibits that are 5 discovered after submission of this Prehearing Statement. 6 7 • Objections to YWS Exhibits: Alon objects to the admission of these exhibits on the basis that they constitute inadmissible hearsay, 8 YWS can provide no proper foundation to admit them, and/or they 9 lack relevance to the issues to be analyzed at the January 12, 2018 10 11 hearing. Alon reserves the right to object further to the disclosed 12 exhibits and any other exhibits YWS may present at the hearing. 13 • Objections to Tishmar Exhibits: Alon objects to the admission of 14 these exhibits to the extent they constitute hearsay or Tishmar can 15 provide no proper foundation to admit them. 16 17 Tishmar’s Exhibits and Objections 27. 18 Preliminary Title Report -Alon Objection: Lacks Foundation, Hearsay 19 • Objections to Alon Exhibits: None 20 • Objections to YWS Exhibits: None 21 22 YWS’ Exhibits and Objections 28. 23 formerly New Frontier, on the north Strip” and embedded photos of 24 25 November 4, 2015 Article “Work is Underway at Alon Las Vegas, the site – Alon Objection: Hearsay, Lacks Foundation 29. December 15, 2016 Article “Alon management exploring options 26 after loss of backer” - Alon Objection: Hearsay, Lacks 27 Foundation 28 Mead Law Group 10161 Park Run Dr. Suite 150 Las Vegas, NV 89145 T. 702 869-0192 F/. 702.922.3831 10 1 30. February 17, 2016 Article “James Packer and sister Gretel reach 2 new secret deal on $1.25 billion inheritance from media mogul 3 father Kerry” – Alon Objection: Hearsay, Lacks Foundation, 4 Relevance 5 31. December 16, 2016 Article “Crown backs out of Macau” Alon 6 Objection: Hearsay, Lacks Foundation, Relevance 7 8 32. Macau’s 9 33. 34. 35. Objection: Hearsay, Lacks Penta documents showing work done on the design center – Alon Penta emails regarding work done on the design center – Alon Boundary Survey of Alon parcels – Alon Objection: Hearsay, Lacks Foundation, Failure to Disclose 16 17 Alon Objection: Hearsay, Lacks Foundation, Failure to Disclose 14 15 – Objection: Hearsay, Lacks Foundation, Failure to Disclose 12 13 recovery” Foundation, Relevance 10 11 October 19, 2016 Article “China casino detentions cast pall over 36. Emails between YWS and Alon regarding continued work on the 18 Project – Alon Objection: Hearsay, Lacks Foundation, Failure 19 to Disclose 20 37. 21 Penta dumpster – Alon Objection: Hearsay, Lacks foundation, 22 23 Google Street View images showing the construction fencing and Relevance. 25 10/29/14 LOI 39. June 15, 2016 Suspension Notice 40. August 24, 2016 Termination Notice 41. 24 38. August 31, 2016 Letter from Thomas Wucherer in response to 26 27 Termination Notice 28 42. YWS’ architectural license documentation Mead Law Group 10161 Park Run Dr. Suite 150 Las Vegas, NV 89145 T. 702 869-0192 F/. 702.922.3831 11 1 43. Emails with Todd Nesbit regarding “Project X” -- Alon Objection: 2 Lacks Foundation, Hearsay, Failure to Disclose 3 44. Title Report for the Property -- Alon Objection: Lacks Foundation, 4 Hearsay, Failure to Disclose 5 45. Aerial depictions of the Property taken from Clark County Assessor 6 website (request for judicial notice) 7 • 8 YWS reserves the right to present additional exhibits that are discovered after submission of this Prehearing Statement. 9 • 10 Objections to Alon and Tishmar Exhibits: YWS objects to the 11 admission of these exhibits on the basis that they constitute 12 inadmissible hearsay and/or lack relevance to the issues to be 13 analyzed at the January 12, 2018 hearing. YWS reserves the right to 14 object further to the disclosed exhibits and any other exhibits the 15 other parties may present at the hearing. 16 VII. Witnesses and Testimony 17 The following witnesses and their testimony will be presented at the evidentiary 18 hearing: 19 (1) Alon: James Noel, formerly of Alon Las Vegas Resort, LLC – Alon expects 20 this witness to testify as to the facts and circumstances addressed in the Motions 21 and otherwise to be addressed by the Court at the hearing. 22 23 24 25 (2) Alon: Andrew Pascal, Alon Leisure Management, LLC – Alon expects this witness to testify as to the facts and circumstances addressed in the Motions and otherwise to be addressed by the Court at the hearing. (3) Alon: Toni Foti, Formerly of Alon Leisure Management, LLC – Alon expects 26 this witness to testify as to the facts and circumstances addressed in the Motions 27 and otherwise to be addressed by the Court at the hearing. 28 Mead Law Group 10161 Park Run Dr. Suite 150 Las Vegas, NV 89145 T. 702 869-0192 F/. 702.922.3831 12 1 (4) Alon: PMK of Penta Building Company – Alon expects this witness to testify 2 as to the facts and circumstances addressed in the Motions and otherwise to be 3 addressed by the Court at the hearing. 4 (5) Alon: Alon specifically reserves the right to examine any witness produced by 5 any other party. 6 7 8 9 10 (6) Tishmar: Since neither Alon nor YWS object to the facts and exhibits identified in Sections I, II and V, above, Tishmar will not present any witnesses at the evidentiary hearing but reserves the right to call Michael W. Kern (accountant for Tishmar) if any evidence or exhibits are offered by Alon or YWS that are contrary 11 to those facts and exhibits. 12 (7) Tishmar: Tishmar specifically reserves the right to examine any witness 13 produced by any other party. 14 (8) YWS: Thomas Wucherer, Principal and CEO of YWS Architects, LLC - YWS 15 expects this witness to testify as to the facts and circumstances to be addressed by 16 the Court at the hearing. 17 (9) YWS: PMK of Penta Building Company - YWS expects this witness to testify 18 as to the facts and circumstances to be addressed by the Court at the hearing. 19 (10) YWS: Frank Flansburg, Swartz & Flansburg PLLC - YWS expects this 20 witness to testify as to the facts and circumstances to be addressed by the Court at 21 the hearing. 22 23 24 25 (11) YWS: Michael Stewart, YWS Architects, LLC - YWS expects this witness to testify as to the facts and circumstances to be addressed by the Court at the hearing. (12) YWS: Paul Burn, Surveyor, GWC - YWS expects this witness to testify as to the facts and circumstances to be addressed by the Court at the hearing, including 26 project and parcel boundaries and location of improvements thereon. 27 28 Mead Law Group 10161 Park Run Dr. Suite 150 Las Vegas, NV 89145 T. 702 869-0192 F/. 702.922.3831 13 1 (13) YWS: YWS specifically reserves the right to call a surveyor in the event of a 2 dispute over any factual matters concerning the Property or any improvements 3 thereon. 4 (14) YWS: YWS specifically reserves the right to examine any witness produced 5 by any other party. 6 7 MEAD LAW GROUP GREENBERG TRAURIG, LLP By:___/s/ Sarah A. Mead________ Leon F. Mead II, Esq. (NV Bar #5719) Sarah A. Mead, Esq. (NV Bar #13725) 10161 Park Run Drive, Suite 150 Las Vegas, Nevada 89145 By:____/s/ Shauna L. Norton______ Mark G. Tratos, Esq. (NV Bar #1086) Donald L. Prunty, Esq. (NV Bar #8230) Shauna L. Norton, Esq. (NV Bar #11320) 3773 Howard Hughes Pkwy Suite 400 North Las Vegas, NV 89169 8 9 10 11 12 13 14 Patrick G. Byrne, Esq. (NV Bar #7636) Michael Paretti, Esq. (NV Bar #13926) SNELL & WILMER L.L.P. Attorneys for YWS Architects, LLC Attorneys for Alon Las Vegas Resort, LLC and Alon Leisure Management, LLC 15 16 17 18 19 20 21 22 KAEMPFER CROWELL By:___/s/ Peter C. Bernhard________ Peter C. Bernhard, Esq. (NV Bar #734) 1980 Festival Plaza Drive, Suite 650 Las Vegas, Nevada 89135 Attorneys for Tishmar, LLC This prehearing statement has been approved by the parties to this action as evidenced by their signatures or the signatures of their attorneys hereon, and the order is hereby entered 23 and will govern the evidentiary hearing set for January 12, 2018. This order may not be 24 amended except by court order and based upon the parties’ agreement or to prevent 25 manifest injustice. 26 10 Dated: January ____, 2018 27 28 _____________________________ United States Magistrate Judge Mead Law Group 10161 Park Run Dr. Suite 150 Las Vegas, NV 89145 T. 702 869-0192 F/. 702.922.3831 14

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