Ransdell v. Clark County

• Decision Date: 25 September 2008
• Docket Number: No. 48592.,48592.
• Citation: 192 P.3d 756
• Parties: Gary RANSDELL, Appellant, v. CLARK COUNTY, A Political Subdivision of the State of Nevada, Respondent.
• Court: Nevada Supreme Court

192 P.3d 756

Gary RANSDELL, Appellant, v. CLARK COUNTY, A Political Subdivision of the State of Nevada, Respondent.

No. 48592.

Supreme Court of Nevada.

September 25, 2008.

Markoff & Boyers and Martin R. Boyers, Las Vegas, for Appellant.

David J. Roger, District Attorney, and Steven G. Sweikert, Deputy District Attorney, Clark County, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

By the Court, CHERRY, J.:

This appeal raises the issue of whether sovereign immunity principles apply to shield a county from civil liability in an action to recover damages following abatement of a nuisance. Although Nevada has waived its sovereign immunity by statute, exceptions to the waiver apply, including one that protects political subdivisions of the state from liability for their discretionary acts. As we recently adopted in Martinez v. Maruszczak the federal two-part test for determining whether the discretionary-function exception to the general waiver of sovereign immunity applies to protect a government entity from liability,¹ we use the test here to determine if a county's actions in abating a property of a nuisance are immune from civil liability. Because a county's actions in abating a nuisance satisfy both criteria of the test, we conclude that immunity applies to shield the County from liability here and, therefore, the district court properly entered judgment in favor of the County.

FACTS AND PROCEDURAL HISTORY

Appellant Gary Ransdell owns residential property in Clark County, Nevada. On April 30, 2003, the Clark County Public Response Office received a nuisance complaint regarding Ransdell's property, alleging that the property was cluttered with trailers, vehicles, a bus, junk, trash, debris, other miscellaneous items, and a green pool. County inspector Al Dixon first inspected the property on May 2, 2003, and issued a courtesy notice that the property was in violation of various Clark County Code sections for the presence of the above-mentioned items. Dixon conducted a second inspection and, after noting no change to the property, he issued a formal notice of violation on May 19, 2003, citing the same code violations for (1) accumulated solid waste, rubbish, and debris, including junk vehicles; (2) storage of unlicensed and inoperable vehicles; and (3) using a residential zone for outside storage.

On June 5, 2003, Dixon conducted his second formal inspection and issued a second notice of violation. Thereafter, he returned to the property twice more for follow-up visits. After observing no change to the property, Dixon forwarded the case to County inspector Cindy Lucas. The County then received a second complaint about the property, alleging that Ransdell was operating a metal salvage and auto repair yard on the property, in violation of the County Code.

Following this second complaint, Lucas evaluated the property on September 22, 2003, at which time she posted a Notice of Abatement. The notice informed Ransdell that he had until October 14, 2003, to voluntarily abate the nuisance from his property or the County would institute involuntary abatement procedures. The notice also informed Ransdell of his right to pursue an administrative appeal within ten days of the notice's date pursuant to Clark County Code Section 11.06.050. Ransdell admittedly did not pursue any administrative relief.

Although Ransdell did not pursue formal administrative relief in accordance with the County Code, he contacted County Code Enforcement Manager Jim Foreman to request an on-site meeting. On October 14, 2003, Lucas and Foreman met with Ransdell to discuss options to bring his property into compliance. Based on this meeting, Ransdell was given until December 1, 2003, to file a use permit for the items on his property and to find a commercial yard or build an appropriate storage structure on his property to house the nuisance items. On December 9, 2003, Lucas issued a notice of abatement extension to allow Ransdell more time to either obtain a use permit for temporary outside storage while he constructed a permanent accessory storage structure or remove the nuisance items from the property. The extension was set to expire on January 29, 2004. Ransdell, however, did not obtain the use permit, voluntarily abate the property, or request an administrative hearing to dispute the abatement before the extension expired.

On March 9, 2004, Lucas filed in justice court an application and supporting affidavit, requesting an administrative warrant to abate Ransdell's property on the grounds that he was operating a salvage yard or junkyard in a residential district and that his property contained accumulated solid waste in the form of inoperative vehicles, vehicle parts, trailers, scrap metal, wood, garbage, rubbish, and debris. The justice court issued the warrant, which required that the County file a written inventory of the items abated, and authorized the County to break locks, remove barriers, and use similar force to execute the warrant after it announced the abatement.

The County announced and abated the property over a three-day period beginning March 25, 2004. It is clear from the record that the County's abatement followed County Code provisions. According to the warrant return, the items seized included numerous vehicle parts, tires, engines, vehicle body parts, dismantled bicycles, bicycle parts, scrap metals, a dilapidated shed, wood pallets, tarps, discarded chairs, rusted metal fencing, rusted grates, numerous inoperative motor bikes and parts, garbage, rubbish, weeds, and debris. The County also submitted a line-item inventory list of all vehicles seized and removed.

Following the abatement, Ransdell filed a civil complaint in district court, requesting compensatory and punitive damages and alleging eight causes of action, which included (1) claims that his constitutional procedural and substantive due process and equal protection rights had been violated² and (2) tort law claims of trespass to land and chattels, conversion, nuisance, and negligence. The County answered the complaint, generally denying the allegations and asserting several affirmative defenses, including that Ransdell had failed to state claims upon which relief could be granted, that he waived or was estopped from asserting certain claims by virtue of his own conduct, and that the County's actions in abating the property were discretionary and therefore entitled to immunity from civil liability.

In addition to his complaint, Ransdell filed a motion to quash the administrative seizure warrant and for an accounting and return of the items seized during the abatement. Clark County opposed the motion, and the district court denied it, finding that Ransdell had been afforded adequate due process, the warrant was supported by probable cause, and the abatement and inventory were reasonable under the circumstances.

Subsequently, the County filed a motion to either dismiss the complaint in part or for partial summary judgment, arguing first that any request for punitive damages must be denied under NRS 41.035(1). Next, the County argued that Ransdell's claim that his procedural due process rights had been denied must fail because he received adequate notice and was given the opportunity to be heard, and that due process principles do not encompass an inventory of items seized in an abatement. The County also maintained that the warrant was supported by probable cause and that the warrant properly included, among other items, "inoperative vehicles." The County next asserted that Ransdell failed to state a claim for denial of his substantive due process rights, arguing that the term "inoperative automobiles" is not vague under Nevada law and that other jurisdictions have specifically addressed the term "inoperable vehicles" in the context of nuisance abatements and concluded that it passed constitutional scrutiny. Addressing Ransdell's equal protection claim, the County argued that Ransdell failed to state a claim for relief because he did not allege that he is a member of a protected class or that he is the only person whose property has been subject to abatement. Finally, the County contended that Ransdell's negligence claim should be dismissed under NRS 41.032(2), which provides the County with immunity from civil liability for its discretionary acts.

The district court granted the County's motion. In particular, the district court found that Ransdell's claim for negligence failed because the County was entitled to immunity under NRS 41.032(2), and it therefore dismissed the claim. In dismissing Ransdell's substantive due process claim, the court found that the claim failed under Matter of T.R., which provides that a plaintiff "`must demonstrate that the law is impermissibly vague in all of its applications,'" in order to succeed on a facial challenge for vagueness.³ The court also dismissed Ransdell's claim that his equal protection rights had been denied, citing City of Las Vegas v. 1017 South Main Corp.,⁴ in which this court concluded that to succeed on an equal protection challenge to an ordinance based on vagueness, the plaintiff must demonstrate that the ordinance allows unfettered discretion in the governing body's officials who are charged with its administration, so that it facilitates an opportunity for arbitrary and discriminatory enforcement.⁵ In dismissing Ransdell's request for punitive damages, the district court cited NRS 41.035(1), which provides that, even when a county is subject to civil liability, punitive damages nevertheless are not available against it.

As for the County's motion for partial summary judgment, the district court granted the motion, entering judgment in favor of the County on Ransdell's procedural due process claim, reasoning that because Ransdell failed to exercise his right to an administrative appeal and the county properly fulfilled the warrant requirements, no genuine issue of material fact remained...