Trump v. Eighth Judicial Dist. Court of State of Nev. In and For County of Clark, 23912

• Citation: 857 P.2d 740, 109 Nev. 687
• Case Date: July 27, 1993
• Court: Supreme Court of Nevada

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857 P.2d 740 109 Nev. 687 Donald J. TRUMP, Petitioner,
v.
The EIGHTH JUDICIAL DISTRICT COURT OF the STATE OF NEVADA,
In and For the COUNTY OF CLARK, and the Honorable
Nancy A. Becker, District Judge, Respondents,
and
GNLV Corp., a Nevada Corporation, Real Party in Interest. No. 23912. Supreme Court of Nevada. July 27, 1993.

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Donald J. Campbell & Associates, Las Vegas, for petitioner.

Galane, Tanksley, Rickdall & Bailif, Las Vegas, for real party in interest.

[109 Nev. 689] OPINION

PER CURIAM:

While Dennis Gomes (Gomes) was acting, pursuant to an employment contract, as president and chief executive officer (CEO) of the Golden Nugget Hotel and Casino (Golden Nugget) in Las Vegas, owned by real party in interest GNLV Corp. (GNLV),

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Trump Taj Mahal Associates ¹ entered into a conflicting employment contract with Gomes to employ him as the president and chief operating officer (COO) of the Trump Taj Mahal Casino Resort (the Taj Mahal). Part of Gomes' employment contract with Trump Taj Mahal Associates included the creation of a Nevada trust for Gomes, run by a Nevada trustee and containing a [109 Nev. 690] Nevada choice-of-law clause. GNLV brought suit in the Eighth Judicial District Court of Nevada against petitioner Donald J. Trump (Trump) individually for intentional interference with contractual relations, and GNLV subsequently served Trump with the complaint in New York. Trump moved to quash service of process, claiming that the Nevada district court did not have personal jurisdiction over him. The district court denied Trump's motion. We conclude that the district court did not err in exercising personal jurisdiction over Trump, and we therefore deny this petition for a writ of prohibition. FACTS

On January 25, 1989, Gomes entered into a contract to become the president and CEO of the Golden Nugget, owned and operated by GNLV. The Chairman of the Board of GNLV, and Gomes' immediate supervisor at the Golden Nugget, was Stephen Wynn (Wynn), with whom Trump had shared a mutual animosity. The term of Gomes' employment was to be from April 10, 1989, to April 9, 1992. In January, 1991, Kevin DeSanctis (DeSanctis), Gomes' longtime friend, was hired by Nick Ribis (Ribis), the CEO of the Taj Mahal and of all Trump-related gaming properties in Atlantic City, to become president of the Trump Plaza Hotel & Casino (Trump Plaza) in Atlantic City.

At the time suit was brought, Trump was the sole shareholder and sole director of two corporations, Trump Taj Mahal Corporation and Trump Taj Mahal, Inc., which were the general partners of Trump Taj Mahal Associates, which owned the Taj Mahal in Atlantic City. In early 1991, after obtaining Trump's authorization, Ribis began negotiations with Gomes for Gomes to assume a position with one of the Trump properties. Gomes negotiated almost exclusively with Ribis, not with Trump. Eventually, Ribis offered Gomes the position of president and COO of the Taj Mahal. On February 15, 1991, Gomes flew to Florida to meet Trump and Ribis at Trump's Florida home to resolve the final details of Gomes' employment contract. Gomes spoke to Trump only briefly about Gomes' future employment with the Taj Mahal, the conversation relating to certain elements of Gomes' compensation package. The following day, Gomes left Trump's home and flew to Atlantic City to view the Taj Mahal operation.

In negotiating the terms of Gomes' employment, Gomes was furnished with a copy of DeSanctis' contract with the Trump Plaza, and this was used as the foundation for Gomes' contract. The DeSanctis draft was altered in numerous ways to reflect Gomes' needs, and drafts of Gomes' proposed contract were sent back and forth between Ribis in New York and New Jersey and [109 Nev. 691] Gomes and his brother, a Nevada attorney, in Las Vegas. Ribis also telephoned Gomes and Gomes' brother in Las Vegas on several occasions. On March 18, 1991, an employment contract with the Taj Mahal, signed by both Gomes and Trump, was entered into.

During the contract negotiations, Gomes had expressed concern over publicity that Trump was incurring financial difficulties, and therefore Gomes sought some assurance that he would be paid even if Trump filed bankruptcy. As a result, Gomes' employment

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contract included the execution of a corresponding irrevocable trust for the benefit of Gomes, which guaranteed that Gomes would receive his base annual salary and an annual bonus in keeping with the employment contract. The trust was established through First Interstate Bank of Nevada (First Interstate) in Las Vegas, which was the trustee. "DONALD J. TRUMP, as General Partner of TRUMP'S TAJ MAHAL & ASSOCIATES" was the settlor. The trust provided that the validity, construction, and administration of the trust was to be governed by Nevada law. Before Trump signed the trust document, officers of First Interstate in Las Vegas reviewed the document and approved it. On March 13, 1991, Ribis directed the chief financial officer (CFO) of the Taj Mahal to authorize conditional wire transfers from New Jersey to First Interstate in Nevada of $350,000 for the account of Gomes and $650,000 for the account of the Gomes irrevocable trust, and the wire transfers were made on March 14, 1991. Two officers of First Interstate signed the trust in Las Vegas on March 20, 1991, after it was signed by Trump in New York on March 18, 1991, and forwarded to Nevada.

On March 13, 1991, Gomes formally tendered his resignation, effective April 12, 1991, to the Golden Nugget. On March 21, 1991, GNLV filed a complaint against Trump, Trump Taj Mahal Corporation, Trump Taj Mahal, Inc., Trump Taj Mahal Associates, and Gomes, alleging, inter alia, that Trump and his business interests tortiously induced Gomes to breach his employment contract with GNLV. Trump was served with the complaint in New York on April 9, 1991. GNLV voluntarily dismissed its complaint against Trump Taj Mahal Corporation, Trump Taj Mahal, Inc., and Trump Taj Mahal Associates, leaving only the individuals of Trump and Gomes in the suit. On April 29, 1991, Trump specially appeared and moved the district court to quash service of process against him on the grounds that he did not have sufficient personal contacts with Nevada such that the exercise of personal jurisdiction over him would not violate his constitutional due process rights. On April 30, 1991, GNLV moved for permission to conduct jurisdictional fact discovery.

[109 Nev. 692] A non-evidentiary hearing was held on the personal jurisdiction issue on November 4, 1992, at which time the district court announced its decision denying Trump's motion to quash service of process. The district court's written order denying the motion was filed on December 22, 1992, and the district court ordered Trump to file an answer to GNLV's complaint within twenty days. On January 4, 1993, Trump filed with this court his petition for a writ of prohibition restraining the district court from exercising personal jurisdiction over him in this matter. On January 7, 1993, this court ordered a stay of all district court proceedings pending this court's decision on the petition.

DISCUSSION

Standard of Review

A writ of prohibition is the appropriate remedy for a district court's erroneous refusal to quash service of process. Budget Rent-A-Car v. District Court, 108 Nev. 483, 484, 835 P.2d 17, 18 (1992); Price and Sons v. District Court, 108 Nev. 387, 390-91, 831 P.2d 600, 602 (1992).

Once a defendant challenges personal jurisdiction, the plaintiff may proceed to show jurisdiction by one of two distinct processes. In the more frequently utilized process, a plaintiff may make a prima facie showing of personal jurisdiction prior to trial and then prove jurisdiction by a preponderance of the evidence at trial. "When a challenge to personal jurisdiction is made, the plaintiff has the burden of introducing competent evidence of essential facts which establish a prima facie showing that personal jurisdiction exists." Abbott-Interfast v. District Court, 107 Nev. 871, 873, 821 P.2d 1043, 1044 (1991); see Levinson v. District Court, 103 Nev. 404, 406, 742 P.2d 1024, 1025 (1987); Davis v. District Court, 97 Nev. 332, 337, 629 P.2d 1209, 1213 (1981); see also Doe v. National Medical Services, 974 F.2d 143, 145 (10th Cir.1992); Morrow v. New Moon Homes, Inc., 548 P.2d 279, 294 (Alaska 1976); MBM

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Fisheries v. Bollinger Mach. Shop, 60 Wash.App. 414, 804 P.2d 627, 630 (1991).

The plaintiff must produce some evidence in support of all facts necessary for a finding of personal jurisdiction, and the burden of proof never shifts to the party challenging jurisdiction. A.I. Trade Finance, Inc. v. Petra Bank, 989 F.2d 76, 80 (2nd Cir.1993); United Elec. Workers v. 163 Pleasant Street Corp., 987 F.2d 39, 43-44 (1st Cir.1993); Conti v. Pneumatic Products Corp., 977 F.2d 978, 987 (6th Cir.1992); Boit v. Gar-Tec Products, Inc., 967 F.2d 671, 675 (1st Cir.1992); Gould v. P.T. Krakatau Steel, 957 F.2d 573, 575 (8th Cir.1992), cert. denied,[109 Nev. 693] 506 U.S. 908, 113 S.Ct. 304, 121 L.Ed.2d 227 (1992). "In determining whether a prima facie showing has been made, the district court is not acting as a fact finder. It accepts properly supported proffers of evidence by a plaintiff as true." Boit, 967 F.2d at 675. However, the plaintiff must introduce some evidence and may not simply rely on the allegations of the complaint to establish personal jurisdiction. See Abbott-Interfast, 107 Nev. at 873, 821 P.2d at 1044; Davis, 97 Nev. at 337, 629 P.2d at 1213. See also United Elec. Workers, 987 F.2d at 44; Boit, 967 F.2d at 675. "[W]hen factual disputes arise in a proceeding that challenges personal jurisdiction, those disputes must be resolved in favor of the plaintiff." Levinson, 103 Nev. at 407, 742 P.2d at 1026. See A.I. Trade Finance, Inc., 989 F.2d at 79-80; Doe, 974 F.2d at 145; Leidy's, Inc. v. H20 Engineering, Inc., 811 P.2d 38, 40...