FILED 

SEP 18 2014 

RAC E K. I. INDEMAN 

rte 0 9ABtrART 

BY 

HiS oPu:ryttlRK 

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130 Nev., Advance Opinion 72. 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

DEJA VU SHOWGIRLS OF LAS 

VEGAS, LLC, A NEVADA LIMITED 

LIABILITY COMPANY, D/B/A DEJA VU 

SHOWGIRLS; LITTLE DARLINGS OF 

LAS VEGAS, D/B/A LITTLE 

DARLINGS; K-KEL, INC., D/B/A 

SPEARMINT RHINO GENTLEMEN'S 

CLUB; OLYMPUS GARDEN, INC., 

D/B/A OLYMPUS GARDEN; SHAC, 

LLC, D/B/A SAPPHIRE; THE POWER 

COMPANY, INC., D/B/A CRAZY HORSE 

TOO GENTLEMEN'S CLUB; AND D. 

WESTWOOD, INC., D/B/A 

TREASURES, 

Appellants, 

vs. 

NEVADA DEPARTMENT OF 

TAXATION; NEVADA TAX 

COMMISSION; AND THE STATE OF 

NEVADA BOARD OF EXAMINERS, 

Respondents. 

No. 59752 

Appeal from a district court order dismissing a tax action for 

failure to properly follow administrative procedures by filing a petition for 

judicial review in the district court. Eighth Judicial District Court, Clark 

County; Elizabeth Goff Gonzalez, Judge. 

Affirmed. 

Greenberg Traurig, LLP, and Mark E. Ferrario and Brandon E. Roos, Las 

Vegas, 

for Appellant SHAC, LLC. 

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Lambrose Brown and William H. Brown, Las Vegas; Shafer and 

Associates and Bradley J. Shafer, Lansing, Michigan, 

for Appellants Deja Vu Showgirls of Las Vegas, LLC; Little Darlings of 

Las Vegas; K-Kel, Inc.; Olympus Garden, Inc.; The Power Company, Inc.; 

and D. Westwood, Inc. 

Catherine Cortez Masto, Attorney General, David J. Pope and Blake A. 

Doerr, Senior Deputy Attorneys General, and Vivienne Rakowsky, Deputy 

Attorney General, Carson City, 

for Respondents. 

BEFORE THE COURT EN BANC. 

OPINION 

By the Court, DOUGLAS, J.: 

In this opinion, we address whether the district court erred by 

concluding that, after exhausting their administrative remedies for 

seeking a refund under Nevada's Live Entertainment Tax (NLET), 

appellants were limited to a petition for judicial review, rather than a de 

novo action. We also consider whether the district court committed error 

by refusing to invoke judicial estoppel in lieu of granting respondents' 

motion to dismiss the underlying de novo action for lack of subject matter 

jurisdiction. We conclude that the district court properly limited 

appellants to a petition for judicial review and was correct in refusing to 

invoke judicial estoppel. Accordingly, we affirm the district court's 

decision. 

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BACKGROUND 

This appeal involves the same parties as the appeal in Deja Vu 

Showgirls v. State, Department of Taxation, 130 Nev. , P.3d 

(Adv. Op. No. 73, September 18, 2014) (hereinafter Deja Vu II). However, 

unlike Deja Vu II, which primarily addresses whether NLET violates the 

First Amendment to the United States Constitution, this appeal focuses 

on the procedural processes available to a claimant challenging an 

unfavorable decision regarding his or her tax refund request. 

On April 18, 2006, appellants filed suit in the United States 

District Court for the District of Nevada seeking a declaration that NLET 

is facially unconstitutional, an injunction against its enforcement, and a 

refund for all taxes paid under the statute. The federal court dismissed 

that suit because appellants failed to show that Nevada's court and 

administrative systems deprived them of a plain, speedy, and efficient 

remedy.' 

On December 19,2006, following the dismissal of their federal 

case, appellants filed a de novo action (Case 1) in the Eighth Judicial 

District Court seeking similar remedies to those sought in federal court, 

including declaratory and injunctive relief, damages, attorney fees, and 

costs. Appellants later amended their Case 1 complaint to include an asapplied constitutional challenge to NLET. While Case 1 was pending in 

district court, appellants K-Kel, Olympus Garden, SHAC, The Power 

'The United States Court of Appeals for the Ninth Circuit later 

affirmed that dismissal. 

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Company, and D. Westwood filed individual tax refund requests with the 

Nevada Department of Taxation (the Department), arguing that NLET is 

facially unconstitutional for violating the First Amendment. The 

Department denied those refund requests on April 3, 2007, and the 

Nevada Tax Commission (the Commission) affirmed the Department's 

decision by written order on October 12, 2007. 

On January 9, 2008, appellants filed a second de novo action 

in the Eighth Judicial District Court challenging the administrative 

denials of their refund requests. In this new action (Case 2), appellants 

sought declaratory and injunctive relief, the refund of taxes paid, and 

damages based on NLET's alleged facial unconstitutionality. Appellants 

later amended their Case 2 complaint to include an as-applied 

constitutional challenge to NLET—that issue having never been raised 

during their administrative proceedings. Because of their similarities, the 

district court consolidated the declaratory relief claims in Cases 1 and 2, 

and coordinated the remaining issues in those cases. 

Thereafter, on respondents' motion for partial summary 

judgment, the district court limited Case 1 to appellants' facial 

constitutional challenge to NLET and permanent injunction request, and 

dismissed appellants' remaining Case 1 claims, including their as-applied 

challenge. In that same order, the district court dismissed the entirety of 

Case 2 for lack of subject matter jurisdiction because appellants failed to 

follow proper procedure when they filed a de novo action in the district 

court after the completion of their administrative proceedings, rather than 

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filing a petition for judicial review as required by NRS 233B.130. This 

appeal challenging the district court's dismissal of Case 2 followed. 2 

DISCUSSION 

Nevada law required appellants to file a petition for judicial review 

On appeal, appellants argue that the district court erred by 

dismissing their case for failure to file a petition for judicial review in line 

with the Nevada Administrative Procedure Act (APA) found in NRS 

Chapter 233B because their de novo action was properly brought in 

district court per NRS 368A.290. Respondents disagree, asserting that, 

when read together, the APA and NRS 368A.290 required appellants to 

challenge the denial of their refund request through a petition for judicial 

review and not the de novo action initiated below. 

Whether a party must file a petition for judicial review when 

challenging a decision by the Commission that denies a refund-of-taxespaid request under NLET is a question of statutory construction that we 

review de novo, see PERS v. Reno Newspapers, Inc., 129 Nev. „ 313 

P.3d 221, 223 (2013), and requires us to consider how the APA and NRS 

368A.290 relate. 

2Following their Case 2 appeal, the district court resolved all of 

appellants' remaining Case 1 claims, and appellants subsequently 

appealed from that determination. Appellants' challenge to the resolution 

of their Case 1 claims is addressed in the companion case. Deja Vu II, 130 

Nev. , P.3d (Adv. Op. No. 73, September 18, 2014). 

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In enacting the APA, the Legislature stated that the chapter's 

purpose is "to establish minimum procedural requirements for the 

regulation-making and adjudication procedure of all agencies. . . and for 

judicial review of both functions, except those agencies expressly exempted 

pursuant to the provisions of this chapter." NRS 233B.020(1). Neither the 

Department nor the Commission is exempted from the APA's purview. 

NRS 233B.039. In line with its purpose, the APA provides that a party 

aggrieved by a final agency decision in a contested case who is identified 

as a party of record by an agency in an administrative proceeding is 

entitled to review of that decision by filing a petition for judicial review in 

the appropriate court. See NRS 233B.130(1)-(2). Moreover, the APA 

states that its provisions "are the exclusive means of judicial review of, or 

judicial action concerning, a final decision in a contested case involving an 

agency to which [NRS Chapter 233B] applies." NRS 233B.130(6). 

It is undisputed that appellants are parties of record aggrieved 

by a final agency decision in a contested case, and that "fal decision of the 

Nevada Tax Commission is a final decision for the purposes of judicial 

review." NRS 360.245(5). Furthermore, we have construed NRS 

360.245(5) and NRS 233B.130(6) as meaning "that all final decisions by 

the Commission be subject to the provisions of NRS Chapter 233B." S. 

Cal. Edison v. First Judicial Dist. Court, 127 Nev. „ 255 P.3d 231, 

235-36 (2011) (holding that a petition for judicial review is the sole remedy 

after a final decision by the Commission). Accordingly, absent explicit 

legislative direction to the contrary, the APA's procedures, including the 

requirement to file a petition for judicial review, apply to all final 

Commission decisions, including those addressing refund requests under 

NLET. See id.; NRS 233B.020; NRS 233B.130(6). 

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Recognizing that a party aggrieved by a final Commission 

decision is limited to a petition for judicial review, we now consider 

whether the Legislature provided an exception to that rule in NLET's 

relevant provision. NRS 368A.290 provides: 

1. Within 90 days after a final decision upon 

a claim filed pursuant to this chapter is rendered 

by: 

(b) The Nevada Tax Commission, the 

claimant may bring an action against the [Nevada 

Tax] Department on the grounds set forth in the 

claim. 

2. An action brought pursuant to subsection 

1 must be brought in a court of competent 

jurisdiction in Carson City, the county of this 

State where the claimant resides or maintains his 

or her principal place of business or a county in 

which any relevant proceedings were conducted by 

the Board or the Department, for the recovery of 

the whole or any part of the amount with respect 

to which the claim has been disallowed. 

A review of NRS 368A.290 makes clear that nothing in that 

statute provides an exception to the express statutory requirement 

identified in Edison that a tax claimant can seek review of a final 

Commission decision only by filing a petition for judicial review under 

NRS 233B.130. Edison, 127 Nev. at , 255 P.3d at 237. And contrary to 

appellants' position, nothing in NRS 368A.290 indicates that the 

Legislature intended to allow taxpayers seeking refunds under NLET to 

file a de novo action, rather than a petition for judicial review. 

Accordingly, the sole remedy for a taxpayer aggrieved by a 

final decision from the Commission concerning a tax refund request under 

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NRS Chapter 368A is to file a petition for judicial review pursuant to NRS 

233B.130. Based on this determination, we conclude that the district 

court did not err by determining that it lacked subject matter jurisdiction 

to consider the de novo challenge below because NRS 368A.290 required 

appellants to file a petition for judicial review. 3 See Edison, 127 Nev. at 

, 255 P.3d at 233, 237; see also Kame v. Emp't Sec. Dep't, 105 Nev. 22, 

25, 769 P.2d 66, 68 (1989) (stating that noncompliance with statutory 

requirements for judicial review of an administrative decision divests a 

court of jurisdiction and is grounds for dismissal). 4Having made this 

determination, we now consider whether judicial estoppel barred the 

district court from dismissing appellants' action despite their failure to file 

a petition for judicial review. 

3Appellants' contention that Edison cannot be applied to their de 

novo action because the underlying case was active at the time this court 

decided Edison lacks merit. See Leavitt v. Siems, 130 Nev. „ 330 

P.3d 1, 5 (2014) (rejecting an argument that a decision issued after the 

close of trial could not be applied to a party's case because "retroactivity is 

the default rule in civil cases"). 

4With regard to appellants Deja Vu and Little Darlings, the record 

demonstrates that these parties failed to exhaust their administrative 

remedies before filing the underlying de novo action. Thus, the district 

court lacked subject matter jurisdiction over their claims and we 

necessarily affirm the dismissal of these parties, albeit for reasons other 

than those relied on by the district court. See Malecon Tobacco, L.L.C. v. 

State ex. rel. Dep't of Taxation, 118 Nev. 837, 839, 59 P.3d 474, 475-76 

(2002); see also Bongiovi v. Sullivan, 122 Nev. 556, 575 n.44, 138 P.3d 433, 

447 n.44 (2006). Accordingly, we need not address arguments presented 

by Deja Vu and Little Darlings. 

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The district court correctly declined to apply judicial estoppel 

Judicial estoppel is an equitable doctrine used to protect the 

judiciary's integrity and is invoked by a court at its discretion. See NOLM, 

L.L.C. v. Cnty. of Clark, 120 Nev. 736, 743, 100 P.3d 658, 663 (2004). 

Whether judicial estoppel applies is a question of law that we review de 

novo. Id. 

We have explained that judicial estoppel "should be applied 

only when a party's inconsistent position [arises] from intentional 

wrongdoing or an attempt to obtain an unfair advantage." Id. (alteration 

in original) (internal quotation omitted); see also Edison, 127 Nev. at , 

255 P.3d at 237. Notably, judicial estoppel "does not preclude a change in 

position that is not intended to sabotage the judicial process." Edison, 127 

Nev. at , 255 P.3d at 237; NOLM, L.L.C., 120 Nev. at 743, 100 P.3d at 

663. Moreover, we have stated that 

ffiudicial estoppel may apply when (1) the same 

party has taken two positions; (2) the positions 

were taken in judicial or quasi-judicial 

administrative proceedings; (3) the party was 

successful in asserting the first position . . . ; (4) 

the two positions are totally inconsistent; and (5) 

the first position was not taken as a result of 

ignorance, fraud, or mistake. 

Edison, 127 Nev. at , 255 P.3d at 237 (second alteration in original) 

(internal quotation omitted). 

In Edison, despite concluding that a petition for judicial 

review constituted the taxpayer's sole remedy for challenging the denial of 

its refund request, we ordered the district court to permit a de novo action 

because judicial estoppel barred the Department from changing its 

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position with respect to the taxpayer. Id. at , 255 P.3d at 237-38. In 

that case, we recognized that the Department, both in the present and 

past, took inconsistent positions in quasi-judicial proceedings regarding 

the means of review available to a taxpayer wanting to challenge a refund 

denial. Id. at , 255 P.3d at 237. Notably, in Edison, the Department 

stated in its brief to the Commission that the taxpayer could file a de novo 

action against the Department under NRS 372.680. Id. Additionally, an 

administrative law judge from the Department told the parties' counsel 

that "Mn the event that this matter is appealed to district court, it will be 

reviewed de novo and additional discovery will likely be allowed at that 

time" Id. (alteration in original) (internal quotation omitted). Yet, in the 

proceedings before this court, the Department reversed its position and 

asserted that de novo review was unavailable to challenge the 

Commission's denial of a refund request. Id. at , 255 P.3d at 234. 

Based on those facts, we concluded that judicial estoppel applied because 

"it would be highly inequitable to. . . allow the Department to change its 

position," and therefore, ordered the court to grant the taxpayer a trial de 

novo in district court. Id. at , 255 P.3d at 237-38. 

Here, appellants contend that, under Edison, the district court 

was required to apply judicial estoppel and preclude dismissal for failure 

to file a petition for judicial review because respondents engaged in 

inconsistent actions both generally as a department and specifically in this 

case. In reply, respondents assert that appellants' case is distinguishable 

from Edison on this issue because respondents never intentionally misled 

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appellants into believing that their remedy was a trial de novo. We agree 

with respondents' position. 

Unlike the taxpayer in Edison, appellants have failed to show 

that respondents made any statement during a judicial or quasi-judicial 

proceeding promising or providing for a reasonable probability that de 

novo review would be available to appellants. Instead, the record shows 

that as early as their federal district court case in 2006, respondents 

identified that a petition for judicial review was the appropriate remedy, 

citing to the APA. Appellants correctly note that respondents did not 

directly reference the APA in their answering brief to the Ninth Circuit, 

but said that a taxpayer may bring an action in court within 90 days of a 

refund denial by the Commission. While there is arguably some 

ambiguity as to the nature of the action that could be brought in court, i.e. , 

whether it is a trial de novo or a petition for judicial review, respondents' 

representations do not amount to a misleading statement similar to those 

made in Edison. Moreover, any confusion caused by that ambiguity in 

these circumstances cannot be characterized as "intentional wrongdoing or 

an attempt to obtain an unfair advantage." NOLM, L.L. C., 120 Nev. at 

743, 100 P.3d at 663 (internal quotation omitted). Accordingly, we 

conclude that the district court committed no error by refusing to invoke 

judicial estoppel. 

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J'. 

Picketing 

Har 

Parrag-uirre. 

Cherr 

aitta 

C.J. 

Based on the foregoing analysis, we affirm the district court's 

decision to dismiss this case for lack of subject matter jurisdiction. 5 

5Appellants also challenge the district court's dismissal of their asapplied challenge to NLET in Case 2. Although the district court did not 

explain why appellants' as-applied challenge was dismissed, the dismissal 

was nonetheless proper because the district court lacked subject matter 

jurisdiction over that challenge as appellants failed to raise this issue 

during their administrative proceedings. See Deja Vu II, 130 Nev. , 

P.3d (Adv. Op. No. 73, September 18, 2014). We have considered all of 

appellants' other arguments and conclude that they lack merit. 

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