No. 58530 

FILED 

AUG 0 7 2014 

CLERK 

BYAIEF DE 

130 Nev., Advance Opinion tip 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

CITY OF NORTH LAS VEGAS, 

Appellant/Cross-Respondent, 

vs. 

5TH & CENTENNIAL, LLC, A NEVADA 

LIMITED LIABILITY COMPANY; 5TH 

& CENTENNIAL II, LLC, A NEVADA 

LIMITED LIABILITY COMPANY; 5TH 

& CENTENNIAL III, LLC, A NEVADA 

LIMITED LIABILITY COMPANY; ALL 

FOR ONE FAMILY TRUST; BRIAN A. 

LEE AND JULIE A. LEE, TRUSTEES 

FOR THE ALL FOR ONE FAMILY 

TRUST; AND BRIAN A. LEE; AND 

JULIE A. LEE, 

Respondents/Cross-Appellants. 

CITY OF NORTH LAS VEGAS, 

Appellant/Cross-Respondent, 

vs. 

5TH & CENTENNIAL, LLC, A NEVADA 

LIMITED LIABILITY COMPANY; 5TH 

& CENTENNIAL II, LLC, A NEVADA 

LIMITED LIABILITY COMPANY; 5TH 

& CENTENNIAL III, LLC, A NEVADA 

LIMITED LIABILITY COMPANY; ALL 

FOR ONE FAMILY TRUST; BRIAN A. 

LEE; AND JULIE A. LEE, 

Respondents/Cross-Appellants. 

No. 59162 

Petition for rehearing of this court's March 21, 2014, order 

affirming in part, reversing in part, and remanding to determine 

prejudgment interest in this eminent domain matter. Eighth Judicial 

District Court, Clark County; Mark R. Denton, Judge. 

Rehearing denied. 

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Marquis Aurbach Coifing and Micah S. Echols, Brian R. Hardy, and Jack 

C. Juan, Las Vegas, 

for Appellant/Cross-Respondent. 

John Peter Lee Ltd. and John C. Courtney and John Peter Lee, Las Vegas; 

Kemp, Jones & Coulthard, LLP, and William L. Coulthard, Jennifer C. 

Dorsey, and Eric M. Pepperman, Las Vegas, 

for Respondents/Cross-Appellants. 

BEFORE THE COURT EN BANG.' 

OPINION 

By the Court, GIBBONS, C.J.: 

On March 21, 2014, this court issued a dispositional order 

regarding this appeal from the district court's decision in an eminent 

domain action. In that order we addressed a number of issues, but 

pertinent to this opinion, we considered whether the district court erred in 

calculating the prejudgment interest award from the date on which the 

summons and complaint were served, rather than from the date on which 

the injury resulting from the conduct that supported precondemnation 

damages arose. We concluded that the district court did err in its 

calculation of prejudgment interest, and we held that prejudgment 

interest should be calculated from the date on which the resulting injury 

arose. Appellant/cross-respondent City of North Las Vegas seeks 

rehearing of that order on the prejudgment interest issue, as well as on 

'The Honorable Ron Parraguirre, Justice, voluntarily recused 

himself from participation in the decision of this matter. 

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issues concerning the statute of limitations and standing. Although 

rehearing is not warranted, we take this opportunity to address the issues 

raised by the City in order to clarify the relevant law. 

FACTS AND PROCEDURAL HISTORY 

Beginning in 2002, the City planned, adopted, and began 

construction on a seven-mile-long, eight-lane, high-speed, super-arterial 

roadway along North 5th Street to relieve regional traffic congestion on 

Interstate 15 (the Project). Over the next eight years, the City and others 

conducted a number of studies, developed reports, budgeted, and 

authorized planning documents for the Project. The City's 2004 

amendment to its Master Plan of Streets and Highways (AMP-70-04) 

allowed for North 5th Street to be widened up to 150 feet and provided 

that approval of development applications must be conditioned upon 

landowners giving up a 75-foot right-of-way on the land fronting that 

street. The Project was divided into two sections: a northern half, from 

Owens Avenue to Cheyenne Avenue; and a southern half, from Cheyenne 

Avenue to Clark County 215. Between 2000 and 2005, respondents/crossappellants 5th & Centennial, LLC; 5th & Centennial II, LLC; 5th & 

Centennial III, LLC; All for One Family Trust; and Brian and Julie Lee 

(collectively, the Landowners) acquired five vacant parcels totaling more 

than 20 acres on the northwest corner of North 5th Street and Centennial 

Parkway (the Property), in the northern half of the Project. 

When the economy stalled in recent years, so did the City's 

progress on the northern half of the Project, which relied on federal 

funding. On January 1, 2010, the Landowners filed a complaint against 

the City for inverse condemnation and precondemnation damages, 

asserting that the City's delay in condemning their properties had 

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prevented them from advantageously selling the properties. Following an 

eight-day bench trial, the district court concluded that the inverse 

condemnation claim was not ripe but awarded the Landowners 

precondemnation damages. The district court further awarded the 

Landowners attorney fees, costs, and prejudgment interest. 

On appeal, we affirmed the district court's orders, except for 

the prejudgment interest award, which we reversed and remanded for a 

new determination of when that interest began to accrue. 2The City then 

filed this petition for rehearing on the prejudgment interest issue, while 

also arguing that it is entitled to an opportunity to raise statute of 

limitations and standing defenses. 

DISCUSSION 

The City argues that we overlooked controlling authority 

when deciding that the district court had improperly calculated the 

prejudgment interest award from the date when process was served. The 

City further argues that it should be given an opportunity to assert 

statute of limitations and standing defenses based on the date of 

compensable injury. 

We disagree. Our conclusion in City of Sparks v. Armstrong, 

103 Nev. 619, 748 P.2d 7 (1987), coupled with the Nevada Constitution's 

definition of just compensation, allows for interest to be calculated from 

the date of taking. Further, the Landowners' claims are not barred by the 

applicable statute of limitations, and additionally, the City cannot raise 

the statute of limitations defense for the first time on rehearing. Lastly, 

2We also concluded that the district court abused its discretion in 

awarding attorney fees. 

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the City fails to demonstrate why this court should address its standing 

defense on rehearing. 

Standard of review 

NRAP 40(c)(2) permits this court to grant a petition for 

rehearing when it has overlooked or misapprehended a material fact or 

has overlooked or misapplied controlling law. See Bahena v. Goodyear 

Tire & Rubber Co., 126 Nev. „ 245 P.3d 1182, 1184 (2010). In 

petitions for rehearing, parties may not reargue matters they presented in 

their appellate briefs and during oral arguments, and no point may be 

raised for the first time. NRAP 40(c)(1). 

Prejudgment interest 

The City contends that prejudgment interest should 

commence on the date of the service of the summons and argues that in 

our order we overlooked our prior decision in Manke v. Airport Authority of 

Washoe County, 101 Nev. 755, 710 P.2d 80 (1985). Further, the City 

argues that we should not have relied on City of Sparks v. Armstrong, 103 

Nev. 619, 748 P.2d 7 (1987), because Armstrong applied a former version 

of NRS 37.175. We disagree. 

In Manke, the Airport Authority of Washoe County filed and 

served a summons and complaint to condemn the Mankes' property, which 

consisted of 4.24 acres of "vacant, unimproved, commercially zoned real 

property." 101 Nev. at 756-57, 710 P.2d at 81. When reviewing the 

district court's calculation of interest, this court agreed that the 

constitutionally required "just compensation" includes interest from the 

date of the taking and held that the district court erred in calculating 

interest from the date of judgment, noting that under NRS 37.120(1)-(2), 

condemned property is valued as of the "date of the service of summons." 

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Id. at 758, 710 P.2d at 82. Because the taking occurred at the service of 

summons, interest was also calculated as of that date. Id. at 759, 710 P.2d 

at 82. 

Two years after Manke, this court determined that a taking 

could occur before service of thefl summons. Armstrong, 103 Nev. at 621- 

22, 748 P.2d at 8-9. In Armstrong, the district court found that a 

regulatory taking occurred when the City of Sparks approved a tentative 

subdivision map, prohibiting development on Armstrong's parcels. Id. at 

621, 748 P.2d at 8. This court agreed that a taking occurred and clarified 

that Armstrong was entitled to prejudgment interest from the date of the 

taking, which occurred prior to the service of the summons Id. at 623, 

748 P.2d at 9. This court again reasoned that the constitutional 

requirement of "just compensation" includes "interest from the date of the 

taking." Id. (citing Manke). Thus, this court held that Armstrong was 

entitled to interest from the time that the regulatory taking occurred, even 

though it occurred prior to the summons. Id. 

When private property is taken from an owner for public use, 

he or she is entitled to just compensation for that taking. Nev. Const. art. 

1, § 8(6); NRS 37.120(3). Further, the Nevada Constitution was amended 

effective November 2008. 3This amendment states in part that "just 

compensation shall be defined as that sum of money, necessary to place 

the property owner back in the same position, monetarily, without any 

governmental offsets, as if the property had never been taken." Nev. 

Const. art. 1, § 22(4). "Just compensation shall include, but is not limited 

3The voters first approved this ballot initiative on the November 7, 

2006, ballot, and then again on the November 4, 2008, ballot. 

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to, compounded interest and all reasonable costs and expenses actually 

incurred." Id. Statutorily, "[just compensation for the property taken by 

the exercise of eminent domain must include, without limitation, interest 

computed pursuant to NRS 37.175." NRS 37.120(3). In order to calculate 

that award consistent with the constitution, NRS 37.175(4) instructs the 

district court to "determine, in a posttrial hearing, the award of interest 

and award as interest the amount of money which will put the person 

from whom the property is taken in as good a position monetarily as if the 

property had not been taken." 

With regard to our decision in this case, we relied on the 

Nevada Constitution and Armstrong in recognizing that just compensation 

includes interest from the date of taking. Further, we concluded that NRS 

37.175(4) is more appropriate than NRS 17.130(2), the general 

prejudgment interest statute, for calculating precondemnation damages 

because NRS 37.175 is specific to eminent domain cases. We determined 

that NRS 37.175(4) also "directs the district court to calculate the interest 

from the date of taking" in order to provide just compensation. Thus, for 

precondemnation cases, we concluded that the date akin to the taking 

date, and thus the most appropriate to use here, is the first compensable 

date of injury resulting from the City's oppressive and unreasonable 

conduct, which in this case was prior to service of the summons and 

complaint. 

Accordingly, we decline to grant the City's petition for 

rehearing on the prejudgment interest issue. While Manke and Armstrong 

held that different dates controlled for the calculation of prejudgment 

interest, the underlying rule remains consistent in both cases: 

prejudgment interest begins at the time a taking occurs. Here, the 

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Landowners suffered injury to their property prior to the summons, 

making this factual scenario more akin to Armstrong, where the property 

owner suffered damage when Sparks approved a subdivision plan and the 

court concluded that a taking occurred at that time. 

Further, the City's argument that Armstrong relied on an old 

version of the statute is without merit because Armstrong (1) did not rely 

on a prior version of NRS 37.175 in making its ruling that prejudgment 

interest begins at the date of taking, 4(2) relied on the constitutional 

requirement of just compensation to determine when the prejudgnent 

interest should begin, and (3) relied on Manke to conclude that 

prejudgment interest begins at the date of taking. Further, the "just 

compensation" definition for eminent domain cases was added to the 

Nevada Constitution in 2008, subsequent to the Manke and Armstrong 

cases. As a result, the constitutional language would supersede any 

inconsistency that existed between the Constitution and the Manke and 

Armstrong cases. Lueck v. Teuton, 125 Nev. 674, 684 n.2, 219 P.3d 895, 

902 n.2 (2009) (noting that to the extent a statutory provision conflicts 

with the Nevada Constitution, the Constitution supersedes the statute). 

Therefore, we properly (1) concluded that just compensation includes 

4Instead, this court referred to a prior version of NRS 37.175(2) in 

noting that, according to Manke, "if the condemned property is neither 

unimproved, nor vacant, nor of value to the condemnee for purposes of 

investment or development, the recipient of the condemnation award is 

only entitled to interest according to NRS 37.175(2)." Armstrong, 103 Nev. 

at 623, 748 P.2d at 9 (citing Manke, 101 Nev. at 759 n.6, 710 P.2d at 82 

n.6). However, since the property in Armstrong was "vacant, unimproved, 

and held for investment purposes at the time of taking," the interest was 

not limited by the former NRS 37.175(2). Id. 

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interest from the date when the injury began, and (2) remanded this issue 

to the district court to determine when the first compensable date of injury 

was for the Landowners. 5 

Lastly, this court properly relied on MRS 37.175(4) for 

calculating interest because it is specific to eminent domain actions. Since 

MRS 37.175(4) and NRS 37.120(3) aim to provide the property owner with 

just compensation, this court properly concluded that prejudgment 

interest for precondemnation damages begins at the date of injury. 

Therefore, our analysis of prejudgment interest is consistent with prior 

case law and properly relies on NRS 37.175(4), coupled with the 

constitutional definition of "just compensation." 8 

Statute of limitations 

The City also argues that, on remand, it should be allowed to 

assert a statute of limitations defense since we instructed the district 

5This court's conclusion in this case is further buttressed by the fact 

that the City's oppressive and unreasonable conduct benefited the City's 

ultimate goal while burdening the Landowners. See Manke, 101 Nev. at 

759, 710 P.2d at 82. 

6The City argues that Klopping v. City of Whittier, 500 P.2d 1345, 

1349 (Cal. 1972) stands for the proposition that "just compensation" 

should be measured at the time of taking. We conclude that Klopping is 

distinguishable from the present case because the valuation date used in 

Klopping "is set by statute at the time the summons is issued." 500 P.2d 

at 1349. Additionally, Klopping even notes that "depending on the nature 

of those activities occurring prior to the issuance of summons a different 

date may be required in order to effectuate the constitutional requirement 

of just compensation." Id. Thus, Klopping actually supports the notion 

that a date other than the date of summons could be appropriate to 

provide "just compensation." 

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court to determine the first date of injury resulting from the City's 

oppressive and unreasonable conduct. We disagree. 

First, the Landowners' claims are not barred by the applicable 

statute of limitations. This court has concluded that a 15-year statute of 

limitations applies "in 'takings' actions." White Pine Lumber Co. v. City of 

Reno, 106 Nev. 778, 780, 801 P.2d 1370, 1371-72 (1990) (involving an 

inverse condemnation claim against the City of Reno when it conditioned 

approval of a project on the donation of the project parcel to the City). 

Although separate from inverse condemnation claims, we see no reason to 

apply a different limitations period to precondemnation claims, which are 

often brought together with an inverse condemnation claim. Under this 

ruling, the Landowners'S claims are clearly not barred because they first 

purchased parcels in 2000 and filed their complaint in January 2010. 

Moreover, the City failed to assert this issue in response to the 

Landowners' argument that prejudgment interest 

calculated from an earlier date. We conclude that the 

this argument for the first time in its petition for 

40(c)(1). 

Standing 

should have been 

City cannot pursue 

rehearing. NRAP 

Finally, the City also contends that it should be given an 

opportunity to assert a lack of standing defense against the Landowners 

as to the latter three parcels that were not acquired until January 2005, 

and the district court could conclude on remand that the injury occurred 

earlier than then. We decline to address this argument, however, because 

it does not set forth how this court (1) overlooked or misapprehended a 

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material fact, or (2) overlooked or misapplied controlling law. NRAP 

40(c)(2). 

CONCLUSION 

Our dispositional order properly concluded that prejudgment 

interest should be calculated from the date of taking, which in this case is 

the first date of compensable injury. Further, we conclude that the City 

cannot raise its statute of limitations argument for the first time on 

rehearing, and regardless, that defense is inapplicable to the facts of this 

case. Finally, rehearing is not warranted to clarify whether the City can 

assert a standing defense on remand 

remt-C C.J. 

Gibbons 

We concur: 

/--Aset,t cet-d1-1 

Hardesty 

Saitta 

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