vegas nevada the home owners when they went into vi their homes at different times and in different occurrences were all provided representations by the agents who were employees of the defendant of the in this case and these representations of the set forth in our brief and the excerpts of the record indicate that they were provided information where an actual road was going to be built south of a subdivision the subdivision name is called timberlake it's also called the or springs unit three it was owned by american west homes from a long time before then they had built all the homes in that subdivision and in fact had lost part of that subdivision to the county when the county  dedicated lands for the belt were aware of the fact when you moved your directly to the issues thank you your honor the first issue that we raised on appeal is the issue of the arbitron ability of this case my clients signed contracts with american west home all of the contracts had within them an arbitration provision i understand that but then something else happened your clients brought lawsuits in courts forced to force the other side to a considerable period of litigation discovery and all the rest and then all of a sudden popped up what was that fifteen months later and said oh really when arbitrate this case i can understand why if you want arbitration you didn't commence by asking for arbitration you have first of all we commenced our case in state court a well what does that have to do with it that has nothing to do with the arbitration issue it has to do with the fact that when my clients made the decision also they made a decision to go by litigation it's tradition to go via litigation because they did not believe  arbitration i mean this seems to be a one hundred percent case of waiver that it's not that somebody woke up and realized we had to be an arbitration you just told me you made a decision to forgo arbitration to pursue litigation  is in my class i make a decision to forgo arbitration they made a decision to commence some action whereby they could get the attention of the hell you so that they would respond claims that are being made in this case on my client's tried to disc pelleas to get them into intending to go to arbitration intending to go to arbitration we could not arbitrate with the individual so they did not sign the agreement that was our contention to the court below the average duration provision is solely with american west home majority of the claims are against our treaty did you file against american west arbitration in the first instance when you filed a lawsuit by the american american west was not a party no american west was a party i thought you'd asked me if we had filed a separate overtrading with american west and we filed we brought all parties in at the same time including parties going on longer here which would be the the loan lenders and other real estate persons who were involved in the original sales and pro months we did not drag them through the geishas for fifteen months or in the fifteen months of litigation what occurred was to have these five a motion to dismiss that they lost that includes the discovery of my client's taking their depositions which is the here but there was a case by this court and i apologize i can't recall it right now that said that in the early going through litigation and doing what you would have done in court and stead of an arbitration when the the actions were given to say just not prejudice you mean you have the regular buyer correct i think the case against your lot premium buyer is stronger because the language in the contract i think weaker on the regular buyers the district court held against you with respect to the regular buyers because in the niche accords meal you had failed to produce evidence of actual damage what evidence is there in the record of actual damage that should allow your  made provided to them things they would not have built such as one of the gentlemen suggest testify that he was out of the thirty thousand dollars and pool area that sounds like reliance rather than damages do you have evidence in the record that shows that the property is worth less given what the road actually as compared to where the world was represented to be coming we have no evidence of diminution of value on why not it seems self evident there would be so so why can't you like you get evans of that because i don't know if the court is where it was in las vegas after the one nine hundred ninety s in the beginning of two thousand and two thousand and one property values throughout the las vegas valley skyrocketed they've essentially doubled there's no rhyme or reason as to why it doesn't matter where the home is located or what it's worth so your damages various that i know are damages are out of pocket there are actual hard damages these people spent money i have a homeowner who's got a second floor door leading and then let me ask you this just factually this homeowner with the door that little at the moment leads to nowhere the homeowner under your representation thought he or she was going to view and the proximity of the road means there's no view point it means that there's a lot of noise so you don't want to dock what's going on they're looking at a sixty foot earth burning with a concrete retention wall fifty feet from the back of their house and they are and they expected to get instead where they were told they would have a three hundred yard clear space which no matter what was built at the end of that they would be able to see the rest of las vegas valley over that right so i have to say that i don't understand your theory of the case from the damages your response to me when i said it is self evident that if you have a road right close to your house as distinct from three hundred yards away that there's a demon is no evaluation on account of that you responded but they don't have any damages because the price was all over the valley went up but that doesn't make any sense to me as an answer is to say they would have gone up higher in the absence of the road next to the house not so i'm sorry i wonder if you misunderstood me i did not intend to say that it will have damages when i intended to state was that it was impossible for us to make the determination because our basically our pressures that we don't have enough of the time history given the fact that we had basically two years of these increased judgment that you have no evidence of diminished value because the world is closer to the house we can see that in our brief your honor not only in that we could see that in the motions that were filed oh goodness so the damages that you are saying that you are entitled to is the money that you spent thinking that there was going to be you so it's because i'm putting in a door and it back and things like that if things of that nature inclusive of the negligent things the pain and suffering my clients have incurred for now living next to a freeway when they were promised a three hundred yard safe zone in addition there's the fraud elements which are not based on diminution of value fraud is is a question for the jury how much were the fraud or what have they been damaged and we have questions of fact throughout as was pointed out with respect to my homeowners eight of them have identified specific damages based on the few that are set forth in the record in their answers  their deposition testimony five of them did not have those eight there was clearly a different issue we actually didn't even bother to look at that just lumped everybody together instead well your response was pretty broad i mean when you were called on the carpet to show your evidence of damages you pretty much specific in these kinds of motions and you weren't actually your honor we did in the in the briefs identify every location where every person testified and so forth with their damages were whether or not they had one person said well i really can't point t houses that are selling for that are further away are selling for more and you know your honor we tried to put that before the court and we were told that if we didn't have an expert witness it didn't matter the court wasn't going to allow us to put that on at trial we did an expert witness to testify about this it's hard to is for everything else how long did you have for discovery and what notice did you have from the district court that he thought you needed an expert if you're going to get evidence to diminish the value total time period t first time prayed for discovery how much did you believe we had approximately a year and at what point does the district judge tell you you need an expert if you can put in evidence of a diminution of value and he ordered denying them the order granting the motion for summary judgment after which is the year after and what efforts did you make during discovery to obtain an expert pain expert testimony or deposition or some sort of report we contacted three different appraiser experts and the last we have a gentleman in our stock you get who went out to the project took photographs met with some of the homeowners went and started running clamps to see what he could do and essentially when the discovery ran out we asked the court for more time and was denied he hadn't been able to finish it because he said he couldn't find comparable homes he sassed based on the facts that we had in our case so one of the first three tell you the first two are sorry he's the third with the first you the first you refused to be retained i wasn't involved in the case back then i have no idea why they rejected our case they were asked and they both declined so you look basically we looked for and were unable to to find any you're an expert who would come in and tell you you had some damages know your honor we actually did find an expert who was investigating that he just needed more time to finalize it such that he felt he was able to put out as a very written opinion and we asked the court for more time to do that discovery we were denied if there aren't any more questions would you care good morning chief justice members of the court mark ferrario appearing on behalf of american west homes in light of your comment that you're familiar with the facts i will address some of the points that you raised in your questioning today first and foremost i'd like to address the arbitration issue the appellant's in the court below made the argument to judge george and it was the only argument they made that a federal district court cannot consider waiver when dealing with an arbitration clause and that's just simply wrong and i believe that this court knows that are you telling us  felt that with we dealt with that with judge george that if you look at their briefs they don't raise it in their briefs in their briefs they simply say and they cite a district court case that looks at the price structure is who you talk reached in the lower court but they raised it the judge george raise that in his decision and i believe he raised it in oral argument i don't believe it was raised in their brief but be that as it may the prejudice here is real and i'll tell you why first and foremost we had to litigate this case for over a year this case involves some serious allegations of fraud and misconduct and unfair trade practices which is how we got in federal court it was a serious case to my clients we didn't get the case and we couldn't ever get anything back from the other side if you look at the record you'll see that we press we've sent these out and we follow the rules we did what we had to do when we asked tell us everything that you have on damages to give us everything here's what they say first they object to the question and then they say an expert has been investigating the definition of value of our property due to the location of the beltway that's what we've got we pressed the press we press we took depositions we never got any information we then file motions for summary judgment and the record i clear on this they've missed timeframes they get up against the wall they can see their way they've blown discovery deadlines they have no expert we've done everything we can do we've invested money in the case we filed motions for summary j contract right before somebody in arbitration we had an agreement that was mutually agreed to either side could have elected who arbitrator who drafted the arbitration provision we drafted the contract i was curious why and why you didn't take it in arbitration then when i started the lawsuit because quite made the choice we'll stay here and we'll do it the way you want to do it and we did where in the record they argue that the whole matter is exempt from arbitration now if you look at the complaint they filed the state courts the very first exhibit in the  they we have a mandatory arbitration program in nevada and you can elect to go into that or you can elect to be exempted they elected to be exempted from that arbitration program and they made the conscious decision as mr gerson said to invoke the court system and not arbitration we were comfortable with that and we play by the rules and i think it would be a mistake for this court to allow somebody to go to court litigate a case get up against a wall because you've missed deadlines you haven't been able to find an expert you haven't produced evidence of damage you've got all sorts of procedural problems and then go wait a minute i want to arbitrate it's certainly has chewed up a lot of valuable federal court time but the other side says everything that's been been done is instantly transferable into the arbitration context so it's not like you've lost ground it just might mean the group think the motions are not instantly transferable the time that we lost is not instantly transferable this dispute relates to contracts that were decide that were entered into in the late ninety's ok arbitration one of the values and i've litigator this issue a number i don't have to preach this to you one of the values of arbitration is quick inexpensive expeditious resolution of disputes we don't have that now that benefit has been lost and it's been lost because of the decision they made not the decision we made me ask you this though  your adversary says the discovery that would have would have been had an arbitration in any event is that right you know having arbitrated a number of cases and been in front of a number of arbitrators you can't say that each arbitrator has their own proclivities we made it we may have gotten no discovery we may have gotten more discovery i can't tell you that what we did in the world are you are you tell me are you telling me then that if you get arbitration and discoveries appropriate you're not going to get it case was under discovered i think we did exactly what we needed to do and what i would like to tell you is the swells under cover from their side which is why they filed the motion arbitrate if it's under discovering their side that's their problem from my perspective i did what i had to do i followed the rules i asked the right questions in iraq to tory's i asked for experts we took the depositions we did everything we had to do i can't tell you that would be a value in an arbitration proceeding it knows better than i sixty seven thousand plus didn't think i believe so i can't tell you that the discovery wouldn't be a value it would but the point here is are we we have a process the process really was turned on its head by the plaintiffs we felt all along their claims were frivolous we press this case vigorously every step of the way we were met with resistance and if you look at the at the excerpts from the record and if you look at what's in the record factually it's information we put in we gave to the district  everything they put in that we did we said take a look at this case it's a case that should have never been judged george after carefully considering the evidence in our favor now side the diminished value question you know how did the exchange why isn't that in fact damage maybe not a lot of damage but why isn't the damage that if i think there is going to be a rolled three hundred yards away i start building and designing my house put a door on the second floor and do various things in reliance on what i'm expecting then it turns out the house was and the road is much closer the house is much closer to the road and what i have done is now worthless or even counterproductive one that damaged well i need to address that in pieces first in the context of this case that again was an argument they came up with at the end it was a salvage argument we spent in iraq the tories to them during the course of the case and we said tell us about your damages what we got back were answers like the one that i just quoted to you we have done a lot we've hired an expert and we're going to i don't have to have that if you look at the deposition language here it's consistent throughout nobody gave us any receipts nobody gave us any documents showing what they had spent nobody showed us that that in this gets back to diminish the value because the  premise of your question was these improvements may have been workless somebody said they put a pool in their backyard and they wouldn't have done that but for this fact they thought they had if you did the pool add to the value of the house did it decrease in the value the house that's why didn't and you know i don't think you're answering my question i'm not asking about demolition value i'm asking about changes made to the house whether it's a pool whether it's a door opening out of nowhere on the second floor or something else things that are built in the house that would not have been built that way had the homeowner known that the road was going to be next to the house from some three hundred yards away assume that that is the fact for the purpose of my question why is that not damage i think it would be appropriate measure of damages under the out of pocket damage theory ok i know the only question is whether there's sufficient evidence to back the question and whether it was planted and whether they properly presented it which gets back to whether there's sufficient evidence  i would agree with you that if it was properly clad and they they provided the appropriate answers to rocket tori's and that sufficient back of evidence then you could conceivably have if you could get a fraud claim to the finish line a measure of out of pocket damage and why is not sufficient evidence of this i'm not been put into one side pleading i'm just asking evidence why is it not sufficient evidence of this summary judgment stage of a homeowner testifies put it in a deposition  i would not have put in that tool had i known i would not have put that door on the second floor leading nowhere had i known why is that not sufficient evidence of the point well i think then i'll get back to whether the way i would approach that is if you said i wouldn't put the pool in but the pool added fifty thousand dollars in value to your house and it cost you thirty then you really haven't been damaged let me ask about the door that i've got i would have an answer to that but the easier one is the door on the second floor leading nowhere homeowner so as i put in this door opening out off on the second floor i intended to put in a deck and i'm now not going to put in a deck given that the road is right there which my deck and before i would not have done that had i known why is that not sufficient evidence of that damage i think again my answer would probably be the same you would have to look at it they didn't hance the value of the home you know you just conceded that we're not talking about a hanson the value of the rule used you said that if th reasons well you've given us the case of render an ogress is turk yes that's a leading case on damages in nevada yes it says the measure of damages for fraudulent misrepresentation let's assume we've got that in this case for the sake of argument only can be determined in one of two ways the first allows the defrauded party that would be the person who bought the home to recover the benefit of his bargain that is the value of what he would have if the representation  true less we what he had received wouldn't that permit somebody to say the benefit of my bargain was the house with a three hundred sixty to the degree view which would have been worth x i didn't get it and so therefore my the benefit of my bargain has been lost and that's the measure of my damage i would agree with you that if they could prove a fraud claim if they could get by all of the other issues that the that would get back to what you hit with it from him on the question you would have an appraiser come out and say that the house today is worth x had it had right the view it would be x plus that would be in fact the measure of damage and that's what's missing there yes not the simply not there i would agree with you on that characterization of damages and also in the value also the out of pocket damage right that's you know that's the other where you were going that's right and he's saying i got out of pocket that i wouldn't spend i understand that but i think the analysis is just a little bit more complex than gerry i must say though that amount of damages in relation to what the expectation damages i think probably were and were provable but they don't seem i'm not a very good job of pockets are relatively small the i don't think the case would have been brought for out of pocket damages to be perfectly blunt this again it was a salvage tactic at the end of the case when they when they had set the case up and you know we're on the defense you employ the procedural tools to find out what the case is about we did that we were told we're going to get an extra up to the you know end of discovery that expert never came and when we took the depositions of the individual plaintiffs we asked them questions about this and i'm not going to bore you with all that testimony it's in the record we asked them questions and inevitably what we got was well you know we did put in some or prove it but you know i really don't know what might have cost me thirty thousand we've got an expert coming they said that so we waited for the expert the expert never came discovery closed we made our motions george did the right thing judge george considered the record he carefully reviewed all of the evidence he looked at the contracts he looked at how this case evolved and he made the right call on arbitration and he made the right call on damages and this court should up hold that ruling thank you counsel and the other side may res d think if you're on earth i would like just quickly to address the issue of the waiver of arbitration that was allegedly filed a complaint i don't know if this court is aware most states have a court and its arbitration program this is to get rid of cases of under a certain dollar value that's what you were talking about and that's what we have to do if we have a real estate case you have to move it otherwise we're our damages but in the minute forty thousand dollars for all of my clients so you have to move to exempt it from that arbitration program and that's what we did we did not request exemption from our three other sides the other side says among other things well what we were prejudice is what you get this is a quick resolution of the case and that's that's now history that's prejudiced i'm arbitration program we're talking about is still i'm months to a year and i'm talking about he says look if you if this thing would have started out early as arbitration we've gotten what we were looking for was a quick resolution of the issue instead you waited a year and a half you dragged through the courts we lost that benefit and that's what the prejudice is to us understand what he's saying on our end and why is that wrong well i think that if we look at the cases that have been cited in here chiron and the others we're talking about prejudice we're talking about serious and substantial waiver issues you're talking about people signing written waiver agreements talking about people who fully they get the can't they get a case all the way through trial and verdict wh cited on top of we were in order to get waiver in the cases that have been before the court you need to have gone through every single step including possibly even have already arbitrated one if not three or four times including having a full and final just decision on the merits on your case we don't even have that here that's for the timing of the filing the motion for summary judgment on liability was filed while me taking depositions that was my answer that do you my answer is do in the middle of discovery and you know the court did know that it was late but took my response into consideration anyway this is not something that they waited until we were done with discovery to file they file their motion to dismiss immediately after we have they removed it to federal court and then they filed a motion for summary judgment in the middle of discovery so when they're saying we've been courageous because we had to conduct all these things they had already made the decision to file their motion when they remanded that's why they moved to dismiss because they didn't feel that they would have to fight this battle when they lost that they filed it again during the middle of discovery before we ever took any of these depositions and now they're trying to say they've been present because they had to take the depositions when they had their motion filed before that ever came up we did not blow any discovery vandalize we might not have gotten an expert but we didn't blow the deadlines the deadlines came the deadlines passed we had our discovery we took our depositions we took what we felt we needed to have for the case and we filed our motion before the motions deadline l the court require we did not have a trial date set in this case this matter was not set for trial and there was no prejudice we believe the pelleas particular in light of the fact that as has been pointed out by the court we have parts we have persons in this case who are not subject to the you didn't make any representations provision i mean i don't know what else to call it of those who had locking them versus those who didn't they were lumped together by the lower court and we believe that that was wrong at the very least the lower court has to go back and we address his decision because it does not provide an explanation or anything as to why all of my clients are put in the same boat and it assessed the same penalty particularly in light of the fact that some of them are in the same situation there are differing damages people put forth evidence and then on that basis there is clearly at least a question of fact as to whether there was enough evidence for out of pocket expenses to go forward at trial there was enough evidence if you're only if you're only damages now amount to improvements what's the total amount that this case is worth all of us are well starting with the thirty thousand dollars for the pool and i apologize your honor my time is up if you like me on you know you can answer my question i want to  k your honor from everything that i've read of my clients and all the documents i've seen is probably somewhere in the neighborhood of seventy seventy five thousand dollars thank you counsel your time is up the case just argued is ordered submitted we appreciate you he