BUZZ STEW, LLC, A NEVADA 

LIMITED LIABILITY COMPANY, 

Appellant, 

vs. 

CITY OF NORTH LAS VEGAS, 

NEVADA, A MUNICIPAL 

CORPORATION, 

Respondent. 

No. 55220 

FILED 

JAN 29 2 1315 

TRAQE. 

CLE/ 

BY 

131 Nev., Advance Opinion I 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

Appeal from a district court judgment on a jury verdict, on 

remand, in a real property action. Eighth Judicial District Court, Clark 

County; Michael Villani, Judge. 

Affirmed. 

Law Offices of Kermitt L. Waters and James J. Leavitt, Kermitt L. 

Waters, Michael A. Schneider, and Autumn L Waters, Las Vegas, 

for Appellant. 

Holley, Driggs, Walch, Puzey & Thompson and Stacy D. Harrop and 

Gregory J. Walch, Las Vegas, 

for Respondent. 

BEFORE THE COURT EN BANC. 

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OPINION' 

By the Court, HARDESTY, C.J.: 

Article 1, Section 8(6) of the Nevada Constitution states that a 

landowner's property may not be taken for public use without just 

compensation. In Buzz Stew, LLC ii. City of North Las Vegas, 124 Nev. 

224, 181 P.3d 670 (2008) (Buzz Stew I), we recognized that, regardless of 

whether property has actually been taken, the just compensation provision 

requires compensating a landowner for a lesser invasion of his property 

rights when a would-be condemnor acts improperly following its 

announcement of intent to condemn, such as by unreasonably delaying 

condemnation of the property. Id. at 228-29, 181 P.3d at 672-73. Thus, in 

Buzz Stew I, we held that even though appellant Buzz Stew, LLC, failed to 

state a claim for the actual taking of its property, it could still maintain a 

claim for precondemnation damages against respondent City of North Las 

Vegas, and we remanded the matter for a jury trial on the issue of 

whether the City acted unreasonably in delaying its condemnation of Buzz 

Stew's property after publicly announcing its intent to do so. Id. at 230, 

181 P.3d at 674. On remand, the jury found that the City did not act 

unreasonably, and the district court entered judgment against Buzz Stew. 

Buzz Stew now appeals to this court for a second time. 

1We originally resolved this appeal in a nonprecedential order of 

affirmance. Respondent City of North Las Vegas and nonparty Nevada 

Department of Transportation filed motions to publish the order as an 

opinion. We grant the motions and replace our earlier order with this 

opinion. See NRAP 36(1). 

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In this appeal, Buzz Stew asserts that a new trial is required 

due to a number of errors made below, both with regard to the 

precondemnation claim and with respect to new evidence demonstrating 

that the City actually took its property. With respect to the latter 

assertion, we conclude that the evidence presented at trial did not 

establish that a taking occurred while Buzz Stew maintained an interest 

in the property, either by the eventual construction of a drainage system 

on the property or by any prior water invasion. Further, we conclude that 

no error made below warrants a new trial. Finally, we conclude that, even 

though costs are unavailable in eminent domain actions, here, costs may 

be recovered by the City with respect to the unsuccessful precondemnation 

claim. Therefore, we affirm the judgment of the district court. 

FACTS AND PROCEDURAL HISTORY 

Appellant Buzz Stew, LLC, purchased a 20-acre parcel of land 

located in North Las Vegas in 2002. Around this same time, respondent 

City of North Las Vegas was preparing to construct a flood waters 

drainage system that would traverse Buzz Stew's property. The City 

offered to purchase an easement across Buzz Stew's land, but Buzz Stew 

refused the offer. In 2003, the City publicly announced its intent to 

condemn the portion of the land needed for the project. A condemnation 

action was not filed, however, because the City was unable to secure 

construction funding. Notwithstanding its inability to proceed with the 

project, the City failed to publicly retract its prior public announcement of 

its intent to condemn the parcel. Buzz Stew subsequently sold the land in 

2004 to a third party, Dark, LLC. In the seller's disclosures clause in the 

sale contract, Buzz Stew informed Dark, LLC, of the City's demand for a 

drainage easement, and Buzz Stew retained the right to any proceeds 

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resulting from a condemnation of the area proposed in the easement. 2 

Dark, LLC, eventually sold the property to Standard Pacific of Las Vegas, 

Inc., who thereafter granted the City an easement to accommodate the 

water drainage project. 

A few years after selling the land, Buzz Stew filed a complaint 

against the City for inverse condemnation and precondemnation damages. 

The district court granted the City's motion to dismiss the complaint for 

failure to state a claim, and Buzz Stew appealed. See Buzz Stew, LLC v. 

City of N. Las Vegas, 124 Nev. 224, 181 P.3d 670 (2008) (Buzz Stew I). In 

Buzz Stew I, we affirmed, in part, the district court's order dismissing the 

inverse condemnation claim because we concluded that Buzz Stew had not 

alleged any facts demonstrating that a taking had occurred. Id. at 230-31, 

181 P.3d at 674. We also concluded that Buzz Stew had a viable claim for 

precondemnation delay damages because questions of fact remained 

regarding whether the City's delay in condemning the property after the 

City had publicly announced in 2003 its intent to condemn but then failed 

to do so was unreasonable and injurious. Id. at 230, 181 P.3d at 674. 

Accordingly, we reversed the district court's order as to Buzz Stew's 

precondemnation damages claim and remanded the matter for further 

proceedings. Id. 

2The disclosures clause, part one, reads as follows: 

Seller discloses that there is a pending demand for 

permanent drainage easement for the Centennial 

Parkway Channel East Project, in favor of the City 

of North Las Vegas. Seller shall retain all rights 

to any proceeds arising out of any condemnation 

proceeding relating thereto, and buyer's title shall 

be subject to the drainage easement. 

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On remand, the district court declined to apply eminent 

domain and inverse condemnation principles to Buzz Stew's 

precondemnation damages claim and to instruct the jury on those 

principles. After the close of evidence in the seven-day jury trial, Buzz 

Stew orally indicated a desire to amend the pleadings to "conform to the 

evidence," asserting that takings claims should be allowed to proceed 

based on new evidence that had been presented at trial of the City's 

eventual construction of the drainage project in 2008 and of its diversion 

of water onto the property. While the district court appears to have 

agreed, it later clarified that it was rejecting the takings claims and 

ultimately instructed the jury on only the precondemnation claim. 3Buzz 

Stew did not raise the amendment issue again or submit an amended 

complaint. The jury returned a verdict for the City, finding that the City's 

delay was not unreasonable. Buzz Stew then filed motions for a new trial 

and judgment notwithstanding the verdict, which the district court denied. 

The district court entered judgment in favor of the City and awarded it 

costs. This appeal followed. 

3Some confusion exists regarding whether Buzz Stew successfully 

moved to amend its complaint. From Buzz Stew's record citations and our 

independent review of the record, it appears that the only occasion on 

which Buzz Stew asserted any intent to amend (as opposed to moving for a 

new trial or a judgment notwithstanding the verdict) was in a discussion 

with the trial judge at the close of evidence. There, counsel for Buzz Stew 

stated "we wanted to amend the pleadings [to] conform to the evidence 

[showing] . . a taking. . . ," but the trial judge countered the court had 

"already ruled . . . [t]hat it's not [a taking]," and Buzz Stew did not pursue 

the matter further. We conclude that this oral exchange between Buzz 

Stew and the district court was insufficient to establish that Buzz Stew 

actually moved to amend the pleadings. 

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On appeal, Buzz Stew argues that newly discovered evidence 

presented at trial demonstrated that a taking of its property occurred, for 

which just compensation is due, and concerning which it should have been 

allowed to amend its complaint and recover, despite our prior opinion 

concluding that Buzz Stew had not stated a takings claim upon which 

relief could be granted. 4The City asserts that no new evidence was 

presented at trial, that the law of the case doctrine precludes any takings 

claim, and that regardless, no taking of any property owned by Buzz Stew 

was shown. Because we are not convinced by the record that any 

compensable taking of Buzz Stew's property occurred, we conclude that 

the district court properly precluded Buzz Stew's newly asserted takings 

claims. 

DISCUSSION 

Pursuit of a new takings claim 

"Whether a taking has occurred is a question of law that [we] 

review] ] de novo." City of Las Vegas v. Cliff Shadows Prof? Plaza, LLC, 

129 Nev. „ 293 P.3d 860, 866 (2013). Pursuant to the Nevada and 

United States Constitutions, the government may not take private 

property for public use unless it pays just compensation. Nev. Const. art. 

1, § 8(6); U.S. Const. amend. V. To bring a takings claim, the party must 

4Buzz Stew also argues that the district court improperly denied its 

motion for judgment notwithstanding the verdict, or judgment as a matter 

of law, in which Buzz Stew again sought to recover on new takings claims. 

Generally, however, "an appeal does not lie from a district court order that 

denies a post-judgment motion for judgment notwithstanding the verdict." 

Banks ex rd. Banks v. Sunrise Hosp., 120 Nev. 822, 827 n.1, 102 P.3d 52, 

56 n.1 (2004). Regardless, as explained in this opinion, Buzz Stew failed 

to demonstrate the viability of any new takings claims. 

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have "a legitimate interest in property that is affected by the government's 

activity" at the time of the alleged taking. Cliff Shadows, 129 Nev. at , 

293 P.3d at 866; see also McCarran Int'l Airport v. Sisolak, 122 Nev. 645, 

658, 137 P.3d 1110, 1119 (2006); United States v. Dow, 357 U.S. 17, 20 

(1958). Thus, we first determine whether Buzz Stew had "a legitimate 

interest in property that is affected by the government's activity" at the 

time of the City's alleged taking. Cliff Shadows, 129 Nev. at ,293 P.3d 

at 866. 

Buzz Stew asserts two bases for its takings argument: the 

• eventual construction of a drainage channel on the property in 2008 and 

the diversion of flood waters over the property. Much of the conduct that 

Buzz Stew complains of as having occurred while it owned the property 

was previously presented to this court in Buzz Stew I, where we 

determined that the conduct was insufficient to support a takings claim. 

See Buzz Stew I, 124 Nev. at 230-31, 181 P.3d at 674. To the extent its 

claims rely on this conduct, we reject them as precluded by• Buzz Stew I. 

See Hsu ix Cnty. of Clark, 123 Nev. 625, 629-30, 173 P.3d 724, 728 (2007) 

(explaining that the law of the case doctrine requires a ruling made on 

appeal be followed in subsequent proceedings in both the lower court and 

a later appeal). 

Regarding the drainage channel, Buzz Stew argues that it has 

a property interest in the parcel because it reserved an easement over the 

project site in its land sale contract to Dark, LLC. The City disputes that 

an easement in favor of Buzz Stew was created. Whether an instrument 

has created "an easement is a question of law that we review de novo." 

Cliff Shadows, 129 Nev. at 293 P.3d at 863. "Generally, when a 

contract is clear on its face, it 'will be construed from the written language 

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and enforced as written." Canfora v. Coast Hotels & Casinos, Inc., 121 

Nev. 771, 776, 121 P.3d 599, 603 (2005) (quoting Ellison v. Cal. State Auto. 

Ass'n, 106 Nev. 601, 603, 797 P.2d 975, 977 (1990)). Here, the plain 

language of the sales contract between Buzz Stew and Dark, LLC, merely 

notifies Dark, LLC, that its title may be subject to a future drainage 

easement and reserves to Buzz Stew only the right to proceeds arising 

from a future condemnation action. It does not reserve a property interest 

to Buzz Stew. As a result, Buzz Stew had a legitimate interest in the 

property affected by the City's project only from 2002-2004, when it owned 

the parcel. Therefore, we conclude that the eventual construction of the 

easement does not evince a taking of Buzz Stew's property. 

As to the diversion of flood waters, Buzz Stew has failed to 

show that water was actually diverted onto the property during the time 

Buzz Stew held title. Takings claims lie only with the party who owned 

the property at the time the taking occurred. Argier v. Nev. Power Co., 

114 Nev. 137, 139, 952 P.2d 1390, 1391 (1998). Nevada law requires a 

plaintiff in a takings action involving the drainage of surface waters to 

show both a physical invasion of flood waters and resulting substantial 

injury. Cnty. of Clark v. Powers, 96 Nev. 497, 501 n.3, 504, 611 P.2d 1072, 

1075 n.3, 1076 (1980); see also ASAP Storage, Inc. v. City of Sparks, 123 

Nev. 639, 647-48, 173 P.3d 734, 739-40 (2007). Although Buzz Stew 

presented evidence that during a 100-year flood event water may pool on 

one corner of the property, the evidence did not demonstrate that any 

pooling had occurred while Buzz Stew owned the property or that Buzz 

Stew suffered any substantial injury from any water diversion. Therefore, 

we reject Buzz Stew's claims that it demonstrated a diversion of flood 

water constituting a taking. Because Buzz Stew has failed to demonstrate 

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any conduct by the City that would effect a taking, we conclude that the 

district court did not err in refusing to recognize a taking of Buzz Stew's 

property, convert the case to a takings case, instruct the jury on takings, 

or order that just compensation was due to Buzz Stew. 5 

New trial 

Buzz Stew additionally argues that multiple errors by the 

district court entitle it to a new tria1. 6We disagree. On the question of 

whether precondemnation damages were merited, Buzz Stew fails to 

express any argument refuting the jury's findings that the City's actions 

5The dissent argues that Buzz Stew I impliedly recognized both a 

continuing property interest and the possibility of a takings claim by 

remanding for precondemnation damages and by noting that Buzz Stew 

may be entitled to just compensation. This reasoning first incorrectly 

assumes that in Buzz Stew I we impliedly remanded for a takings claim. 

Such was not the case. We remanded solely for a trial on 

precondemnation damages—a decision that rested in large part on our 

holding that there need be no taking before a party may bring a claim for 

precondemnation damages. Buzz Stew, LLC a City of N. Las Vegas, 124 

Nev. 224, 229,181 P.3d 670, 673 (2008). Second, in Buzz Stew I we did not 

interpret the contract clause at issue here, but we do so now, and we agree 

with the district court that Buzz Stew failed to reserve a property interest 

in the parcel. To the extent that the dissent's arguments rest on an 

interpretation that would recognize a continuing property interest to Buzz 

Stew, these arguments fail, as they assume that any reservation of the 

rights to future condemnation proceeds must rest on a continuing property 

interest and overlook the reality that it is the subsequent owner, not the 

party reserving the interest in future proceeds, who must bring suit, 

thereby leaving open the possibility that no suit will ever be brought and 

no such proceeds will ever be realized. 

6We do not consider Buzz Stew's arguments regarding attorney 

misconduct, as these arguments are not properly before this court because 

Buzz Stew did not object to the conduct below and raises the issue for the 

first time on appeal. See Lioce v. Cohen, 124 Nev. 1, 19, 174 P.3d 970, 981 

(2008). 

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were not oppressive, as is required for an award of precondemnation 

damages. 7 See Buzz Stew I, 124 Nev. at 229, 181 P.3d at 673. To the 

extent Buzz Stew implies such an argument by asserting its experts 

should have been allowed to testify concerning the City's misconduct and 

violation of the Uniform Relocation Assistance and Real Property 

Acquisition Policies Act of 1970 (Relocation Act), this argument is without 

merit. The question of oppressive conduct is one of fact for the jury to 

decide, id. at 230, 181 P.3d at 673, and because expert witnesses may not 

testify as to their "opinion on the state of the law," United Fire Ins. Co. v. 

McClelland, 105 Nev. 504, 509, 780 P.2d 193, 196 (1989), the district court 

properly determined that Buzz Stew's experts could not state as a matter 

of law whether the City acted oppressively. As to any additional 

testimony regarding the Relocation Act, the district court did not err in 

excluding this evidence, as Buzz Stew failed to show that federal funds 

were used for the project. See Rhodes v. City of Chi. for Use of Sch., 516 

F.2d 1373, 1377 (7th Cir. 1975); Reg'l Transp. Dist. v. Outdoor Sys., Inc., 

34 P.3d 408, 418 (Colo. 2001). And as to the other evidentiary errors 

asserted, in light of our holding that there was no taking and Buzz Stew's 

failure to present any facts that would support overturning the jury's 

verdict, we summarily dismiss those arguments. 

7Because the jury did not reach the issue of precondemnation 

damages and because the question before the jury was whether Buzz Stew 

was entitled to precondemnation damages, we reject Buzz Stew's 

arguments that the district court abused its discretion (1) in admitting 

evidence that the project benefited the value of the property, and (2) 

excluding evidence referencing eminent domain. 

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Parraguirre 

7-I: 

Saitta 

J. g dead. CUP 

Pickering 

Finally, we are not persuaded by Buzz Stew's argument that 

the district court improperly awarded costs to the City. Generally, a 

prevailing party is entitled to costs. MRS 18.020; see also Bergmann v. 

Boyce, 109 Nev. 670, 678-79, 856 P.2d 560, 565 (1993). While in eminent 

domain actions such costs are curtailed, Nev. Const. art. 1, § 22(7), the 

present case was an unsuccessful action for precondemnation damages 

wherein the City prevailed on its defense. Therefore, we cannot say that 

under the facts of this case the district court clearly erred. See Locklin u. 

City of Lafayette, 867 P.2d 724, 756 (Cal. 1994) (holding that an inverse 

condemnation plaintiff who did not prevail on a takings claim was not 

entitled to be shielded by the law against awarding costs in eminent 

domain actions). 8Accordingly, we affirm the judgment of the district 

court. 

Hardesty 

cAdati , C.J. 

We concur: 

8Because the City prevailed below and in light of our resolution of 

this appeal, we do not address its argument that the district court should 

have granted it summary judgment based on sovereign immunity. 

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GIBBONS, J., with whom CHERRY, J., agrees, dissenting: 

I disagree with the majority's conclusion that the district court 

did not abuse its discretion by denying Buzz Stew's motion to amend the 

pleadings. Therefore, I would reverse and remand the case to allow Buzz 

Stew to amend its pleadings to conform to the evidence presented at trial. 

Once amended, the trier of fact could determine if Buzz Stew sustained 

any precondemnation damages. 

Buzz Stew retained a legitimate interest in the subject property through its 

land sale contract with Dark, LLC 

The government cannot take private property for public use 

without paying just compensation. Nev. Const. art. 1, § 8(6); U.S. Const. 

amend. V. A party bringing a takings claim must have "a legitimate 

interest in property that is affected by the government's activity" at the 

time of the alleged taking. City of Las Vegas v. Cliff Shadows Profl Plaza, 

LLC, 129 Nev. „ 293 P.3d 860, 866 (2013); see also McCarran Int'l 

Airport v. Sisolak, 122 Nev. 645, 658, 137 P.3d 1110, 1119 (2006); United 

States v. Dow, 357 U.S. 17, 20 (1958). The majority concludes that Buzz 

Stew does not have a valid takings claim, in part, because it did not have a 

"legitimate interest" in the subject property when the drainage channel 

was constructed in 2008. I disagree. 

In my view, Buzz Stew retained a "legitimate interest" in the 

subject property through its land sale contract with Dark, LLC. 

"Generally, when a contract is clear on its face, it 'will be construed from 

the written language and enforced as written.'" Canfora v. Coast Hotels & 

Casinos, Inc., 121 Nev. 771, 776, 121 P.3d 599, 603 (2005) (quoting Ellison _ 

v. Cal. State Auto. Ass'n, 106 Nev. 601, 603, 797 P.2d 975, 977 (1990)). 

Here, the plain language of the land sale contract states that Buzz Stew 

retains all rights to any proceeds arising out of the condemnation of the 

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City's proposed easement. The majority concludes that through this 

reservation of rights, Buzz Stew only retained an interest in the proceeds 

from a future condemnation of the property, but did not retain any 

interest in the property itself. In my view, however, the plain language of 

the contract does not draw such a distinction. Instead, I conclude that by 

retaining an interest in the proceeds from a future condemnation, Buzz 

Stew also retained a sufficient interest in the property to maintain a 

takings claim. Cliff Shadows, 129 Nev. at , 293 P.3d at 866. As such 

the district court should have allowed Buzz Stew to amend the pleadings 

to include a takings claim. See Cohen v. Mirage Resorts, Inc., 119 Nev. 1, 

22, 62 P.3d 720, 734 (2003) ("Leave to amend should be freely given when 

justice requires . . . ."). 

This court previously recognized Buzz Stew's interest in the subject 

property 

In Buzz Stew I, we implicitly held that Buzz Stew had an 

actionable interest in the property when we remanded the case back to the 

district court to consider the reasonableness of the City's actions for 

precondemnation purposes. Buzz Stew, LLC v. City of N. Las Vegas, 124 

Nev. 224, 228-29, 231, 181 P.3d 670, 672-73, 674-75 (2008). We also noted 

in Buzz Stew I that even though Buzz Stew no longer owned the property, 

"[Buzz Stew] may be entitled to compensation because just compensation 

should be paid to the person who was the owner at the time of the taking." 

Id. at 226 n.1, 181 P.3d at 671 n.1. It is inconsistent to now conclude that 

Buzz Stew lacked an interest in the property and not allow the issue to go 

to the jury. See Hsu v. Cnty. of Clark, 123 Nev. 625, 629, 173 P.3d 724, 

728 (2007) (stating that the law of the case doctrine requires that "the law 

or ruling of a first appeal must be followed in all subsequent proceedings, 

both in the lower court and on any later appeal"). 

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Therefore, because Buzz Stew retained a 'legitimate interest' 

in the easement property, I depart from the majority and conclude that 

the district court abused its discretion by denying Buzz Stew's motion to 

amend the pleadings to conform to the evidence. 

Gibbons 

,J. 

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