Keresey v. Rudiak

• Decision Date: 21 August 2019
• Docket Number: No. 75177-COA,No. 77146-COA,75177-COA,77146-COA
• Parties: BRADY W. KERESEY, INDIVIDUALLY, Appellant, v. GERTRUDE RUDIAK, INDIVIDUALLY; GERTRUDE RUDIAK SURVIVOR TRUST; JOHN M. RENTCHLER, TRUSTEE; PANAMANIAN VISTAS, LTD., AN OHIO LIMITED LIABILITY COMPANY; PANAMANIAN VISTAS, INC., A CORPORATION OF THE REPUBLIC OF PANAMA; SEASHORE VISTAS, LTD., AN OHIO LIMITED LIABILITY COMPANY; AND OPAL SEAS TRADING, S.A., A CORPORATION OF THE REPUBLIC OF PANAMA, Respondents.
• Court: Nevada Court of Appeals

BRADY W. KERESEY, INDIVIDUALLY, Appellant, v. GERTRUDE RUDIAK, INDIVIDUALLY; GERTRUDE RUDIAK SURVIVOR TRUST; JOHN M. RENTCHLER, TRUSTEE;

PANAMANIAN VISTAS, LTD., AN OHIO LIMITED LIABILITY COMPANY; PANAMANIAN VISTAS, INC.,

A CORPORATION OF THE REPUBLIC OF PANAMA; SEASHORE VISTAS, LTD., AN OHIO LIMITED

LIABILITY COMPANY; AND OPAL SEAS TRADING, S.A.,

A CORPORATION OF THE REPUBLIC OF PANAMA, Respondents.

No. 75177-COA

No. 77146-COA

COURT OF APPEALS OF THE STATE OF NEVADA

August 21, 2019

ORDER AFFIRMING IN PART AND REVERSING IN PART

Appellant Brady W. Keresey appeals from a district court order granting a permanent injunction, a final judgment granting declaratory relief, and orders awarding attorney fees and costs. Second Judicial District Court, Washoe County; Patrick Flanagan, Judge; Second Judicial District Court, Washoe County; Lidia Stiglich, Judge; Second Judicial District Court, Washoe County; Barry L. Breslow, Judge.

Keresey and respondents (collectively, the Rudiaks) entered into multiple business agreements, between 2007 and 2008, wherein Keresey's services were utilized to purchase two investment properties in Panama.¹ At the time of formation, Keresey was a Nevada-licensed attorney and realtor, and the Rudiaks were Nevada residents. Keresey's retainer, along with most of the other contracts (which Keresey drafted), contained a Nevada choice-of-law clause and a Nevada forum-selection clause. Moreover, Keresey's letterhead signaled that he had a physical presence in Nevada, as it included a Nevada mailing address and telephone number.

In 2011, after the parties' relationship had deteriorated, Keresey demanded a commission payment pursuant to their service agreements. The Rudiaks disputed Keresey's valuation, however, as it was not based on an independent appraisal. In response, Keresey threatened to cloud title on the properties, using a Panamanian legal procedure called sequestration. The Rudiaks ultimately paid Keresey a portion of his demand, but the payment failed to resolve the matter. Furthermore, in 2014, Keresey retired his Nevada licenses and permanently moved toPanama without informing the Rudiaks. In 2015, the Rudiaks filed a complaint in Nevada seeking declaratory relief and alleging various tort and contract claims. The Rudiaks also moved the district court for a temporary restraining order (TRO) and a preliminary injunction, in order to prevent Keresey from clouding title on the Panamanian properties. The district court granted the TRO, which subsequently became the preliminary injunction. In late 2017, the Rudiaks sold the properties to an independent third party.

Ultimately, the district court granted the Rudiaks' request for a permanent injunction in early 2018, and in September 2018, it entered a final judgment granting declaratory relief, declaratory judgment, and awarding the Rudiaks attorney fees and costs. Keresey appealed from both orders, and the cases were consolidated.

On appeal, Keresey asks this court to dissolve the permanent injunction, arguing that (1) the district court lacked subject-matter and personal jurisdiction, (2) service of process was ineffective, (3) the injunction was improper because the Rudiaks failed to establish irreparable harm, (4) the district court erred when it sanctioned him for violating the TRO and preliminary injunction, (5) the court erred in striking his answer, and (6) the district court abused its discretion when it awarded the Rudiaks attorney fees and costs.²The district court had both subject-matter and personal jurisdiction

Keresey argues that the district court erred in issuing the injunction because it lacked subject-matter jurisdiction over the issues related to Panamanian properties. Keresey argues further that the district court lacked personal jurisdiction over him. We address each argument in turn.

Subject-matter jurisdiction

After reviewing the record, we conclude that the district court had subject-matter jurisdiction over the dispute. Whether a court lacks subject matter jurisdiction "can be raised by the parties at any time, or sua sponte by a court of review, and cannot be conferred by the parties." Swan v. Swan, 106 Nev. 464, 469, 796 P.2d 221, 224 (1990). "Subject matter jurisdiction is a question of law subject to de novo review." Ogawa v. Ogawa, 125 Nev. 660, 667, 221 P.3d 699, 704 (2009).

Nevada district courts, like most state trial courts, are courts of general jurisdiction vested with authority to adjudicate a variety of claims, whether sounded in law or equity. See Nev. Const. art. 6, § 6 (pronouncing that district courts have original jurisdiction over all cases, except where justice court has original jurisdiction); John v. Douglas Cty. Sch. Dist., 125 Nev. 746, 756, 219 P.3d 1276, 1283 (2009) (providing that Nevada district courts are courts of general jurisdiction), superseded by statute on other grounds as stated in Delucchi v. Songer, 133 Nev. 290, 296, 396 P.3d 826, 831 (2017); Am. Sterling Bank v. Johnny Mgmt. LV, Inc., 126 Nev. 423, 428, 245 P.3d 535, 538 (2010) (noting that trial courts have broad discretion tofashion equitable remedies); see also 21 C.J.S. Courts § 6 (2019) ("Most state courts are courts of general jurisdiction, vested with expansive authority to resolve myriad controversies brought before them." (footnote omitted)).

Here, the Rudiaks' complaint included tort and contract claims, as well as requests for injunctive and declaratory relief. Thus, the pleading incorporated both legal and equitable claims that fell within the scope of the district court's general jurisdiction. Moreover, contrary to Keresey's assertion, the instant matter was neither in rem nor quasi in rem, as the claims were taken directly against Keresey, a party to the suit, rather than the Panamanian properties. See Chapman v. Deutsche Bank Nat'l Tr. Co., 129 Nev. 314, 318, 302 P.3d 1103, 1106 (2013) (distinguishing in rem, quasi in rem, and in personam proceedings). Indeed, the properties were collateral to the dispute itself, which arose from a disagreement about the parties' contractual rights and obligation.

Finally, a district court, sitting in equity, is not divested of subject-matter jurisdiction simply because the situs of real property, which is collateral to the dispute, is extra-territorial. See, e.g., Chevron Corp. v. Donziger, 974 F. Supp. 2d 362, 556 (S.D.N.Y. 2014) (providing that courts sitting in equity "may command persons properly before it to cease or perform acts outside its territorial jurisdiction" (quotation marks omitted)); see also 30A C.J.S Equity § 89 (2019) ("Indirect control [of the property] may be exercised by injunctions restraining a litigating party from interfering with the possession of, or rights in, real property outside the jurisdiction . . . ." (emphasis added)).

Here, the district court personally enjoined Keresey from interfering with the Rudiaks' properties in Panama. Since the district court determined that it could rightfully exercise personal jurisdiction overKeresey, discussed infra, it was within its authority to enjoin Keresey from acting abroad. Because the district court is one of general jurisdiction, and because the matter was in personam, we conclude that the district court correctly determined it had subject-matter jurisdiction over the dispute.

Personal Jurisdiction

Keresey also argues that the district court lacked personal jurisdiction. We disagree. When reviewing a district court's exercise of jurisdiction, we review legal issues de novo but defer to the district court's findings of fact if they are supported by substantial evidence. Catholic Diocese of Green Bay, Inc. v. John Doe 119, 131 Nev. 246, 249, 349 P.3d 518, 520 (2015).

In order for a Nevada court to exercise personal jurisdiction over a nonresident defendant, a plaintiff must show that Nevada's long-arm statute, NRS 14.065, has been satisfied, and that the exercise of jurisdiction would not offend due process. Id. Since Nevada's long-arm statute reaches the limits of due process established by the United States Constitution, the requirements are the same for both (i.e., the long-arm statute and due process). Id.; see also Baker v. Eighth Judicial Dist. Court, 116 Nev. 527, 531-32, 999 P.2d 1020, 1023 (2000). There are two species of personal jurisdiction: general and specific. Baker, 116 Nev. at 532, 999 P.2d at 1023. Nevertheless, we need not address the former, as the latter is sufficient to resolve the instant matter.³

A court may exercise specific personal jurisdiction over a nonresident defendant if the defendant has certain "minimum contacts" with the forum and "maintenance of the suit [would] not offend traditionalnotions of fair play and substantial justice." Id. (internal quotations omitted). To determine whether a court may exercise specific jurisdiction, this court utilizes a three-part test. Catholic Diocese, 131 Nev. at 249-50, 349 P.3d at 520. Accordingly, a court may exercise specific jurisdiction over a nonresident defendant where (1) the defendant purposefully and affirmatively directs his conduct toward the forum (known as purposeful availment); (2) the plaintiff's claims arise from the defendant's contact with the forum; and (3) exercise of the court's jurisdiction would be reasonable. Id. We address each requirement in order.

First, the record supports the district court's finding of purposeful availment. Specifically, the record reveals that Keresey was a Nevada-licensed attorney and realtor, who conducted business in Nevada, had a Nevada mailing address and telephone number, and contracted for services with Nevada residents. Furthermore, Keresey's retainer agreement, as well as other documents he prepared, contained a Nevada choice-of-law clause and a Nevada forum-selection clause. Thus, Keresey purposely availed himself of the forum of Nevada.

Second, the Rudiaks' causes of action arise from Keresey's contacts with Nevada. For example, the Rudiaks' first amended complaint contained...