Dermody v. City of Reno
| Citation | 113 Nev. 207,931 P.2d 1354 |
| Decision Date | 30 January 1997 |
| Docket Number | No. 27164,27164 |
| Parties | John A. DERMODY and Martha Sue Dermody, E.W. McKenzie and Genevieve McKenzie, Appellants, v. The CITY OF RENO, Respondent. |
| Court | Supreme Court of Nevada |
Page 1354
Genevieve McKenzie, Appellants,
v.
The CITY OF RENO, Respondent.
Page 1356
Osborne Law Office, Chartered, and Kevin P. Ryan and Stephen H. Osborne, Reno, for Appellants.
Patricia Lynch, City Attorney, Victoria M. Thimmesch, Deputy, and Donald L. Christensen, Reno, for Respondent.
PER CURIAM:
Prior to 1978, appellants John A. and Martha Sue Dermody, husband and wife, and E.W. and Genevieve McKenzie, husband and wife, (hereinafter collectively referred to as "Appellants") owned 126.727 acres of land bordering what is commonly known as Reno-Tahoe International Airport. Appurtenant to this parcel of land were water rights consisting of a portion of Truckee River Claim No. 524 of the Orr Ditch Decree in the amount of approximately 229.25 acre-feet of water. 1 The respondent City of Reno (hereinafter "City") prohibited development on Appellants' property in anticipation of airport expansion. Accordingly, on August 10, 1976, Appellants filed a complaint against City for inverse condemnation (hereinafter "the first action"). The parties to the first action are identical to those in the instant matter.
The parties in the first action stipulated that the City had indeed inversely condemned a portion of Appellants' land, 77.25 acres, and the "issues to be resolved ... consist solely of: (a) Valuation of the property to be acquired; and (b) Severance damages, if any." A bench trial commenced on October 17, 1977. Both sides presented expert testimony on the value of the condemned property. On January 12, 1978, the trial court entered its decision, adopting Appellants' expert testimony which valued the property at $4,635,000.00, or $60,000.00 per acre.
On January 23, 1978, the final order of condemnation, vesting "fee simple title" of the subject property in the City was filed with the Washoe County Recorder's Office. No condemnation documents expressly conferred the appurtenant water rights upon the City nor reserved interest in Appellants.
On June 25, 1979, the City quitclaimed the property to the Washoe County Airport Authority. In that conveyance, the City "excepted and reserved unto [itself] all surface water rights of whatsoever nature." Nevertheless, Appellants, based on the belief that they retained the appurtenant water rights in the condemned property, conveyed 34.87 acre-feet of water to Sierra Pacific Power Company on September 20, 1984, and 10.38 acre-feet to the City of Sparks on January 13, 1986.
On April 18, 1994, Appellants filed suit seeking to quiet title in the 229.25 acre-feet of water or, alternatively, just compensation for the appurtenant water rights. After the City filed its answer asserting all right, title, and interest in the condemned property, both parties moved for summary judgment.
On March 22, 1995, the trial court granted the City's summary judgment motion while denying Appellants' summary judgment motion. The court found "that as a matter of law the appurtenant water rights automatically vested in [the City] when fee simple title in the subject property passed to [the City] under the condemnation proceedings in 1978." The district court further found that Appellants' alternative arguments regarding the City's authority to condemn the water rights for an award of additional compensation were barred by res judicata.
Appellants now appeal the trial court's March 22, 1995 ruling to this court. Appellants allege the same issues on appeal and
Page 1357
also attempt to raise two new claims concerning issues of material fact.This court's "review of summary judgment orders is de novo." Joynt v. California Hotel & Casino, 108 Nev. 539, 541, 835 P.2d 799, 800 (1992). Further, summary judgment should only be entered when there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). A genuine issue of material fact is one where the evidence is such that a reasonable jury could return a verdict for the non-moving party. Valley Bank v. Marble, 105 Nev. 366, 367, 775 P.2d 1278, 1279-80 (1989). The pleadings and proof offered at the district court are construed in a light most favorable to the nonmovant. Hoopes v. Hammargren, 102 Nev. 425, 429, 725 P.2d 238, 241 (1986).
Appellants argue, for the first time, that genuine issues of material fact are present in the instant matter because Appellants (1) "had no knowledge that the subject water rights were even an issue" at the time of condemnation, and (2) "never intended to transfer any water rights to [the] City." Despite Appellants' original summary judgment motion claiming "that there is no issue as to any material fact and that [Appellants are] entitled to judgment as a matter of law," Appellants now contend that their lack of knowledge and intent creates genuine issues of material fact.
Parties "may not raise a new theory for the first time on appeal, which is inconsistent with or different from the one raised below." Powers v. Powers, 105 Nev. 514, 516, 779 P.2d 91, 92 (1989). Appellants never argued below that genuine issues of fact precluded summary judgment. Even in Appellants' reply memorandum opposing the City's summary judgment motion, no reference to factual disputes was made. Rather, Appellants only argued questions of law. In fact, it was not until the trial court entered summary judgment for the City that factual disputes arose which supposedly now defeat summary judgment. Arguments raised for the first time on appeal need not be considered by this court. Montesano v. Donrey Media Group, 99 Nev. 644, 650 n. 5, 668 P.2d 1081, 1085 n. 5 (1983); Tupper v. Kroc, 88 Nev. 146, 149, 494 P.2d 1275, 1278 (1972). Accordingly,...
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