No. 65242 

FILED 

JUL 2 3 2015 

A

glE K. LINDEMAN 

aaRAWAUPttceME cal R 

131 Nev., Advance Opinion 53 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

BARRY A. FORD, AN INDIVIDUAL; 

AND PATRICIA A. FORD, AN 

INDIVIDUAL, 

Appellants, 

vs. 

BRANCH BANKING AND TRUST 

COMPANY, SUCCESSOR-ININTEREST TO COLONIAL BANK BY 

ACQUISITION OF ASSETS FROM THE 

FDIC AS RECEIVER FOR COLONIAL 

BANK, A NORTH CAROLINA 

BANKING CORPORATION 

ORGANIZED AND IN GOOD 

STANDING UNDER THE LAWS OF 

THE STATE OF NORTH CAROLINA, 

Respondent. 

Appeal from a district court order denying a motion for NRCP 

60(b) relief in a breach of guaranty action. Eighth Judicial District Court, 

Clark County; Jerry A. Wiese, Judge. 

Affirmed. 

Law Office of Timothy P. Thomas, LLC, and Timothy P. Thomas, Las 

Vegas, 

for Appellants. 

Sylvester & Polednak, Ltd., and Ryan W. Daniels, Allyson R. Noto, and 

Jeffrey R. Sylvester, Las Vegas, 

for Respondent. 

BEFORE PARRAGUIRRE, DOUGLAS and CHERRY, JJ. 

SUPREME COURT 

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OPINION 

By the Court, PARRAGUIRRE, J.: 

NRCP 60(b)(5) allows the district court to set aside a judgment 

when, in material part, "a prior judgment upon which it is based has been 

reversed or otherwise vacated, or it is no longer equitable that an 

injunction should have prospective application." Here, we are asked to 

determine whether new or changed precedent from this court justifies 

NRCP 60(b)(5) relief. We conclude that NRCP 60(b)(5) does not allow a 

district court to set aside judgments solely based on new or changed 

precedent. Additionally, we conclude that NRCP 60(b)(5) does not allow a 

district court to set aside monetary judgments merely because new or 

changed precedent makes enforcement inequitable. Accordingly, we 

affirm the district court's order denying NRCP 60(b) relief. 

FACTS 

In 2004, appellants Barry and Patricia Ford guaranteed two 

commercial loans made by Colonial Bank The FDIC subsequently 

acquired the loans when it was appointed as the receiver for Colonial 

Bank. The FDIC, in turn, assigned the loans to respondent Branch 

Banking and Trust Company (BB&T) in August 2009. The properties 

securing the commercial loans were foreclosed August 29, 2011, and 

BB&T brought a breach of guaranty action against the Fords in December 

2011. After a partial summary judgment hearing, the district court 

determined that the amount of damages was the only issue remaining for 

trial. 

At trial, the parties disputed whether NRS 40.459(1)(c) (2013) 

(current version codified at NRS 40.459(3)(c)), which reduces the amount 

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of some deficiency judgments, could limit the amount the Fords owed 

BB&T. The district court concluded that former NRS 40.459(1)(c) only 

applied prospectively. Further, it concluded the statute would have an 

impermissible retroactive effect if applied to loans, like this one, that were 

assigned before NRS 40.459(1)(c) took effect on June 10, 2011. See 2011 

Nev. Stat., ch. 311, §§ 5(c), 7 at 1740, 1743, 1748. Therefore, NRS 

40.459(1)(c) could not apply to the Fords' loans, and they were liable for 

the full deficiency. The Fords never appealed the district court's final 

judgment. 

More than one year after the district court entered its 

judgment, this court published Sandpointe Apartments v. Eighth Judicial 

District Court, 129 Nev., Adv. Op. 87, 313 P.3d 849 (2013). Sandpointe 

holds that "NRS 40.459(1)(c) only applies prospectively," and an 

application of the statute is prospective if there has been no foreclosure 

sale on the underlying loan as of June 10, 2011, the date the statute was 

enacted. Sandpointe, 129 Nev., Adv. Op. 87, 313 P.3d at 851. Whether or 

when a loan is assigned is not material. Id. Therefore, the district court 

erred in holding that NRS 40.459(1)(c) would be retroactive if applied to 

the Fords' loans because the foreclosure sale occurred August 29, 2011, 

more than two months after NRS 40.459(1)(c) took effect. Shortly after 

the Sandpointe opinion was published, the Fords asked the district court 

to set aside the judgment against them pursuant to NRCP 60(b)(5). The 

district court denied the Fords' motion, holding that NRCP 60(b)(5) was 

not an appropriate avenue for seeking relief based on new or changed 

precedent. The Fords now appeal that decision. 

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DISCUSSION 

On appeal, the Fords argue they can invoke NRCP 60(b)(5) to 

set aside the judgment against them because (1) Sandpointe reversed "a 

prior judgment upon which" the judgment against them was based, and (2) 

"it is no longer equitable" to enforce the judgment against them in light of 

this court's Sandpointe opinion. NRCP 60(b)(5). 

Generally, we review a trial court's decision "to grant or deny 

a motion to set aside a judgment under NRCP 60(b)" for an abuse of 

discretion. Cook v. Cook, 112 Nev. 179, 181-82, 912 P.2d 264, 265 (1996). 

However, we review de novo the district court's interpretation of the 

Nevada Rules of Civil Procedure, See Moseley v. Eighth Judicial Dist. 

Court, 124 Nev. 654, 662, 188 P.3d 1136, 1142 (2008); see also Webb ex rel. 

Webb v. Clark Cnty. Sch. Dist., 125 Nev. 611, 618, 218 P.3d 1239, 1244 

(2009). The district court denied the Fords' NRCP 60(b)(5) motion based 

on its interpretation of that rule, holding NRCP 60(b)(5) does not permit 

district courts to set aside judgments based on new or changed precedent. 

Therefore, de novo review is appropriate here. See Moseley, 124 Nev. at 

662, 188 P.3d at 1142; Webb, 125 Nev. at 618, 218 P.3d at 1244. 

The material portions of NRCP 60(b)(5) allow the district court 

to set aside a judgment when 11] a prior judgment upon which [the 

challenged judgment] is based has been reversed or otherwise vacated, or 

[2] it is no longer equitable that an injunction should have prospective 

application." "Rule 60(b) of the Nevada Rules of Civil Procedure is 

modeled on Rule 60(b) of the Federal Rules of Civil Procedure, as written 

before the [FRCP's] amendment in 2007." Bonnell v. Lawrence, 128 Nev., 

Adv, Op. 37, 282 P.3d 712, 714 (2012). "Federal cases interpreting the 

Federal Rules of Civil Procedure 'are strong persuasive authority, because 

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the Nevada Rules of Civil Procedure are based in large part upon their 

federal counterparts." Exec. Mgmt., Ltd. v. Ticor Title Ins. Co., 118 Nev. 

46, 53, 38 P.3d 872, 876 (2002) (quoting Las Vegas Novelty, Inc. v. 

Fernandez, 106 Nev. 113, 119, 787 P.2d 772, 776 (1990)). 

The Fords contend that Sandpointe reversed a "prior 

judgment" that formed the basis of the judgment against them, meaning 

they may be entitled to relief under NRCP 60(b)(5). We reject the Fords' 

interpretation. 

The "prior judgment" language in NRCP 60(b)(5) is identical to 

the pre-2007 version of its federal counterpart and substantively the same 

as the current federal rule. 1 Compare NRCP 60(b)(5) (the court may set 

aside a judgment when "a prior judgment upon which it is based has been 

reversed or otherwise vacated"), with FRCP 60(b)(5) (2006) (same), and 

FRCP 60(b)(5) (2014) (the court may set aside a judgment when "it is 

based on an earlier judgment that has been reversed or vacated"). The 

"prior judgment" portion of FRCP 60(b)(5) "does not apply merely because 

a case relied on as precedent by the court in rendering the present 

judgment has since been reversed." 11 Charles Alan Wright, Arthur R. 

Miller & Mary Kay Kane, Federal Practice and Procedure § 2863 (3d ed. 

2012). Rather, "[t]his ground is limited to cases in which the present 

judgment is based on the prior judgment in the sense of claim or issue 

preclusion." Id.; accord Tomlin v. McDaniel, 865 F.2d 209, 210-11 (9th 

'In 2007, the federal rules were amended to make stylistic changes 

only; the changes were not intended to modify the substance of the rules. 

FRCP 60 advisory committee's note (2007 amendments). 

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Cir. 1989), overruled on other grounds by Gonzalez v. Crosby, 545 U.S. 524 

(2005); Comfort v. Lynn Sch. Comm., 560 F.3d 22, 27 (1st Cir. 2009). 

We find the federal analysis of FRCP 60(b)(5) persuasive and 

conclude NRCP 60(b)(5)'s "prior judgment" language does not reach new or 

changed precedent. The Fords' matter and Sandpointe do not involve the 

same parties or loans such that concerns about claim or issue preclusion 

arise. See Weddell v. Sharp, 131 Nev., Adv. Op. 28, P.3d (2015) 

(clarifying the elements of claim preclusion); Five Star Capital Corp. v. 

Ruby, 124 Nev. 1048, 1054, 194 P.3d 709, 713 (2008) (setting forth the 

basic elements for claim and issue preclusion); see also Sandpointe, 129 

Nev., Adv. Op. 87, 313 P.3d 849. Therefore, Sandpointe is merely new 

precedent, and NRCP 60(b)(5)'s "prior judgment" language does not apply 

here. 

The Fords also argue they are entitled to relief under NRCP 

60(b)(5) because, after Sandpointe, it is no longer equitable to enforce the 

judgment against them. We also reject this interpretation of NRCP 

60(b)(5). 

NRCP 60(b)(5) allows a district court to set aside a judgment 

when "it is no longer equitable that an injunction should have prospective 

application." (Emphasis added.) The pre-2007 version of FRCP 60(b)(5) 

allows a district court to set aside a judgment when "it is no longer 

equitable that the judgment should have prospective application." 

(Emphasis added.)2Nevada's Advisory Committee expressly noted that it 

2The current version of FRCP 60(b)(5) allows a judgment to be set 

aside when "applying [the judgment] prospectively is no longer equitable." 

continued on next page . . . 

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was modifying the federal rule such that the Nevada rule would only 

consider the prospective application of injunctions, not judgments 

generally.' NRCP 60 advisory committee's note. Therefore, NRCP 

60(b)(5)'s drafters evidenced a clear intent to set aside only injunctions 

where continued enforcement would be inequitable. See Moseley, 124 Nev. 

at 662 n.20, 188 P.3d at 1142 n.20 (stating this court may interpret the 

NRCP like a statute and subject to de novo review). The judgment against 

the Fords is purely monetary, and BB&T neither sought nor obtained an 

injunction. Therefore, the judgment against the Fords cannot be set aside 

under NRCP 60(b)(5), even if enforcement might be inequitable. 

Thus we conclude that new or changed precedent does not 

constitute reversal of a "prior judgment" under NRCP 60(b)(5). 

Additionally, NRCP 60(b)(5) relief is not available for monetary judgments 

simply because enforcement of the judgment might be inequitable in light 

. . . continued 

The change here was meant to be purely stylistic, not substantive. FRCP 

60 advisory committee's note (2007 amendments). 

3The Advisory Committee's Note states, "Mlle federal rule is revised 

as follows . . . [fin part (4), the words 'an injunction' are substituted for 'the 

judgment." NRCP 60 advisory committee's note. The reference to "part 

(4)" is clearly a typographical error. Part (4) of both the FRCP 60(b) and 

NRCP 60(b) simply state "the judgment is void." Therefore, "part (4)" was 

not modified at all. However, as discussed above, part (5) of NRCP 60(b) 

substitutes the words "the judgment" from the federal rules with the 

words "an injunction." As such, Nevada's Advisory Committee clearly 

intended to reference part (5) in its note, but mistakenly wrote part (4). 

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of new or changed precedent. Accordingly, we affirm the district court's 

order denying the Fords' NRCP 60(b)(5) motion. 

We concur: 

Douglas 44, 

J. 

Cherry 

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