645.8791 - Civil action concerning claim: Issuance of order to broker to appear and show cause; effect of failure to appear; hearings; release of proceeds; frivolous claims; compensatory damages; awar
645.8791 Civil action concerning claim: Issuance of order to broker to appear and show cause; effect of failure to appear; hearings; release of proceeds; frivolous claims; compensatory damages; award of costs and attorney’s fees to prevailing party.
1. If a claim is recorded pursuant to NRS 645.8775, the owner against whom the claim is recorded may:
(a) File a civil action concerning the claim in the district court of the county where the commercial real estate or a portion of the commercial real estate is located; and
(b) At the time the summons is issued or at any time before the complaint is answered by the real estate broker, apply to the district court for an order directing the real estate broker to appear before the court to show cause why the claim should not be dismissed.
2. If the court issues an order directing the real estate broker to appear before the court, the order must:
(a) State that, if the real estate broker fails to appear at the time and place specified in the order, the claim will be dismissed with prejudice pursuant to subsection 3;
(b) Specify a time and date on which the court will conduct a hearing on the matter; and
(c) Establish a period within which the owner must serve a notice of the order on the real estate broker and the escrow agent.
3. If the real estate broker fails to appear at the time and place specified in the order issued pursuant to subsection 2, the court shall issue an order:
(a) Dismissing the claim with prejudice;
(b) Cancelling the notice of the claim recorded pursuant to NRS 645.8775; and
(c) Requiring the real estate broker to record in the office of the county recorder of the county where the notice of the claim is recorded a copy of the order of cancellation issued pursuant to paragraph (b).
Ê An order issued pursuant to this subsection must state that the cancellation of the notice of the claim has the same effect as an expungement of that notice.
4. If a hearing is conducted pursuant to this section, the court shall consider the showing made by the parties at the hearing and shall make a preliminary determination of which party, with reasonable probability, is entitled to the amount of the owner’s net proceeds claimed by the broker pending final adjudication of the claims of the parties.
5. If, after the hearing, the district court determines there is a reasonable probability that:
(a) The real estate broker is entitled to the amount of the owner’s net proceeds claimed by him or her, the court shall, if those proceeds:
(1) Have been deposited with the court by the escrow agent pursuant to NRS 645.8785, release the proceeds to the real estate broker; or
(2) Have not been deposited with the court by the escrow agent pursuant to that section, order the escrow agent to release the proceeds to the real estate broker; or
(b) The owner is entitled to the amount of the owner’s net proceeds claimed by the real estate broker, the court shall, if those proceeds:
(1) Have been deposited with the court by the escrow agent pursuant to NRS 645.8785, release the proceeds to the owner; or
(2) Have not been deposited with the court by the escrow agent, order the escrow agent to release the proceeds to the owner.
6. If the owner believes the claim is frivolous and is made without reasonable cause, the owner may include in the application submitted pursuant to subsection 1 a request for an order directing the real estate broker to appear and show cause why the claim should not be dismissed on those grounds. If the court issues such an order, any hearing conducted pursuant to that order must be conducted in the manner provided in NRS 108.2275. In addition to any remedy set forth in that section, the court may award compensatory damages to the owner.
7. The prevailing party in any civil action filed or hearing conducted pursuant to this section is entitled to receive:
(a) Any costs incurred by that party for the civil action or hearing; and
(b) A reasonable attorney’s fee.
8. Proceedings conducted pursuant to this section do not affect any rights or remedies otherwise available to the owner or the real estate broker.
(Added to NRS by 1999, 1178)