Landreth v. Malik

251 P.3d 163, 127 Nev. 175, 127 Nev. Adv. Rep. 16, 2011 Nev. LEXIS 17
CourtNevada Supreme Court
DecidedMay 12, 2011
Docket49732
StatusPublished
Cited by52 cases

This text of 251 P.3d 163 (Landreth v. Malik) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Landreth v. Malik, 251 P.3d 163, 127 Nev. 175, 127 Nev. Adv. Rep. 16, 2011 Nev. LEXIS 17 (Neb. 2011).

Opinions

[177]*177OPINION

By the Court,

Hardesty, J.:

On December 24, 2009, this court issued an opinion in this appeal vacating the district court’s default judgment for respondent Amit Malik. Thereafter, Malik filed a petition for rehearing pursuant to NRAP 40. We granted rehearing on July 22, 2010, and we now withdraw our December 24, 2009, opinion, and issue this opinion in its place.

In this appeal we consider two issues. First, we consider whether the Legislature has the constitutional authority to limit the powers of a district court judge in the family court division of a judicial district. We conclude that it does not. Article 6, Section 6(1) of the Nevada Constitution grants original and appellate jurisdiction to the district courts in the judicial districts of the state. Article 6, Section 6(2) permits the Legislature to establish a family court as a division of any judicial district and to prescribe its jurisdiction. Pursuant to the Constitution’s grant of this authority, the Legislature established a family court division in the Second and Eighth Judicial Districts and limited the family courts’ jurisdiction to matters specifically enumerated in NRS 3.223. However, all judges in the family court division are district court judges with authority to preside over matters outside the family court division’s jurisdiction.1

This appeal involves an unmarried, childless couple, who previously lived together and now dispute the ownership of certain property. Although NRS 3.223 does not give the family court division jurisdiction over such matters, the Legislature does not have the constitutional authority to limit the constitutional powers of a district court judge in the family court division. Therefore, we hold that the district court judge sitting in family court did not lack the power and authority to dispose of this case merely because it involved a subject matter outside the scope of NRS 3.223.

Second, we must determine whether the district court abused its discretion when it denied appellant Dlynn Landreth’s motion to set aside the default without considering whether Malik gave a proper notice of intent to take a default. A party is required to inquire into the opposing party’s intent to proceed before requesting a default under this court’s holding in Rowland v. Lepire, 95 Nev. 639, 600 P.2d 237 (1979), and Rule of Professional Conduct (RPC) 3.5A. Generally, one notice of an intent to request a default is sufficient [178]*178for purposes of Rowland and RPC 3.5A. If, however, the party applying for a default grants subsequent time extensions, that party must also provide a subsequent notice of his or her intent to seek a default. Thus, we conclude that the district court abused its discretion when it denied Landreth’s motion to set aside the default when Malik admitted to granting further time extensions without subsequently serving Landreth with another notice of intent to request a default.

FACTS

Landreth and Malik met in July 2001 and lived together in Arizona, Texas, and Florida from 2001 until 2004 when, according to Landreth, she decided to end the relationship and move to Las Vegas. The parties never married and did not have children together.

Landreth asserts that she acquired a residence after she arrived in Las Vegas using her own money for the down payment and to make upgrades and improvements to the home. Landreth acknowledges that the couple briefly reunited when Malik moved to Las Vegas, but maintains that in September 2005 the relationship ended.

According to Malik, however, the decision to move to Las Vegas was mutual, with Landreth moving first. Malik contends that the $80,000 down payment used to purchase the home originated from the couple’s joint checking account and that the $50,000 used to renovate the home was also drawn from that account.

In September 2006, Malik filed an action in the Eighth Judicial District Court’s Family Court Division seeking half of the equity in the real property, half of certain personal property acquired during the relationship, and all of his separate personal property. Landreth was served with the complaint on October 4, 2006. She hired counsel to represent her, but she contends that she had difficulty communicating with her counsel because she was living in the Caribbean at the time.

During October and November, Malik granted Landreth numerous extensions of time to file an answer. Although no default had been entered, on December 14, 2006, Malik served Landreth with a notice of intent to apply for a default judgment. Landreth maintains that notwithstanding the notice of intent to apply for a default judgment, Malik thereafter granted her additional extensions of time to answer the complaint. Landreth contends that a letter from her counsel to Malik’s counsel documented yet another oral agreement to extend time beyond December 19, 2006. However, on February 27, 2007, Malik requested, and the clerk entered, a default. Landreth filed her answer and a counterclaim on [179]*179March 5, 2007. Malik served Landreth with a notice of default hearing on March 22, 2007. Subsequently, Landreth filed a motion to set aside the default. In the motion, Landreth asserted that Malik’s counsel violated RPC 3.5A by failing to notify Landreth’s counsel of his application for a default after Malik had granted Landreth more time to file her answer.

On May 18, 2007, the family court denied Landreth’s motion to set aside the default, finding that Malik had offered Landreth numerous opportunities to answer, but that her delay warranted the entry of a default judgment. Thus, the court entered default judgment against Landreth. In upholding the entry of default, however, the district court failed to address Landreth’s contention that Malik had granted her subsequent time extensions after giving her the notice of intent to take default.

In the default judgment, the family court judge concluded that the down payment was drawn from the couple’s joint checking account. Therefore, the court found that Malik was co-owner of the Las Vegas home and was the owner or co-owner of other personal property located within the residence. Landreth appeals.

DISCUSSION

On appeal, Landreth claims for the first time that the family court lacked subject matter jurisdiction to hear Malik’s case under Nevada Constitution Article 6, Section 6(2) because his case did not fit within those matters subject to the family court’s jurisdiction under NRS 3.223. Specifically, Landreth argues that because the parties were not married, did not have children, and the litigation was limited to a dispute between two unmarried persons over the title and ownership of property, the family court lacked jurisdiction to hear the case. Malik counters that because the parties maintained a meretricious relationship, the family court properly exercised jurisdiction over the case pursuant to Eighth Judicial District Court Rule (EDCR) 5.02(a) and this court’s precedent.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

KOSOR, JR. v. S. HIGHLANDS CMTY. ASS'N
141 Nev. Adv. Op. No. 34 (Nevada Supreme Court, 2025)
SANCHEZ (HUGO) v. STATE
561 P.3d 35 (Nevada Supreme Court, 2024)
NEV. POLICY RESEARCH INST. v. MILLER
558 P.3d 319 (Nevada Supreme Court, 2024)
Ingham v. Broberg, Jr.
D. Nevada, 2024
Holland v. Anthony L. Barney
Nevada Supreme Court, 2023
Zalyaul v. State
2022 NV 74 (Nevada Supreme Court, 2022)
ED. FREEDOM PAC v. REID (BALLOT ISSUE)
2022 NV 47 (Nevada Supreme Court, 2022)
N5Hyg, Llc v. Iglesias
Nevada Supreme Court, 2022
Shahrokhi v. Burrow (Child Custody)
Nevada Supreme Court, 2022
Shahrokhi v. Burrow C/W 82245
Nevada Supreme Court, 2022
SUPERPUMPER, INC. VS. LEONARD
2021 NV 43 (Nevada Supreme Court, 2021)
Pope Vs. Fellhauer
489 P.3d 918 (Nevada Supreme Court, 2021)
Phillips v. Ochoa
D. Nevada, 2020
Arellano Vs. Iglesias
Nevada Supreme Court, 2020
Kamedula Vs. Hultenschmidt
Nevada Supreme Court, 2020
AMAYA VS. GUERRERO RIVERA (CHILD CUSTODY)
2019 NV 27 (Nevada Supreme Court, 2019)
Amaya v. Guerrero Rivera
444 P.3d 450 (Nevada Supreme Court, 2019)
Ramirez v. Menjivar
Nevada Supreme Court, 2018

Cite This Page — Counsel Stack

Bluebook (online)
251 P.3d 163, 127 Nev. 175, 127 Nev. Adv. Rep. 16, 2011 Nev. LEXIS 17, Counsel Stack Legal Research, https://law.counselstack.com/opinion/landreth-v-malik-nev-2011.