Opinion
No. 64337
11-26-2013
DOMINIC ANTHONY MARROCCO; AND TOMIYASU HOLDINGS, LLC, Petitioners, v. THE EIGHTH JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF CLARK; AND THE HONORABLE TIMOTHY C. WILLIAMS, DISTRICT JUDGE, Respondents, and MARK A. HILL, Real Party in Interest.
An unpublished order shall not be regarded as precedent and shall not be cited as legal authority. SCR 123.
ORDER GRANTING PETITION FOR WRIT OF MANDAMUS
This is an emergency petition for a writ of mandamus challenging a district court order declining to expunge a lis pendens in a fraudulent transfer action.
Real party in interest Mark Hill filed an action seeking to undo an alleged fraudulent transfer of real property from petitioner Dominic Marrocco to petitioner Tomiyasu Holdings, LLC. In conjunction therewith, Hill recorded a lis pendens against the property. The district court denied petitioners' motion to expunge the lis pendens, and petitioners filed this writ petition. As directed, Hill filed an answer and petitioners filed a reply.
Having reviewed the parties' arguments and the appendices in this writ petition, we conclude that Hill's use of a lis pendens in this action is not appropriate and the district court acted arbitrarily and capriciously when it denied petitioners' motion to expunge the lis pendens. Int'l Game Tech., Inc. v. Second Judicial Dist. Court, 124 Nev. 193, 197, 179 P.3d 556, 558 (2008) (holding that a writ of mandamus is available to address an arbitrary or capricious abuse of discretion); Levinson v. Eighth Judicial Dist. Court, 109 Nev. 747, 752, 857 P.2d 18, 21 (1993) ("[A] lis pendens is not available to merely enforce a personal or money judgment. There must be some claim of entitlement to the real property affected by the lis pendens. . . ."); see also Weddell v. H20, Inc., 128 Nev. _, _, 271 P.3d 743, 751 (2012). Accordingly, we
ORDER the petition GRANTED AND DIRECT THE CLERK OF THIS COURT TO ISSUE A WRIT OF MANDAMUS instructing the district court to issue an order expunging the lis pendens.
________________, J.
Gibbons
________________, J.
Douglas
SAITTA, J., dissenting:
I respectfully dissent. Regardless of whether recording a lis pendens is appropriate, petitoners filed their writ petiton as an emergency and have not demonstrated that our emergency intervention is warranted. NRAP 21(a)(6); NRAP 27(e). Therefore, I would deny the writ petition.
________________, J.
Saitta
cc: Hon. Timothy C. Williams, District Judge
Lionel Sawyer & Collins/Las Vegas
Nersesian & Sankiewicz
Eighth District Court Clerk