IN THE SUPREME COURT OF THE STATE OF NEVADA
`
`
`
`Electronically Filed
`Apr 03 2025 11:54 AM
`Elizabeth A. Brown
`Clerk of Supreme Court
`
`INDICATE FULL CAPTION:
`MIDTOWN 44, a Nevada corporation;
`THE PEPPER GROUP NEVADA,
`LLC, a Nevada Limited Liability
`Company,
`
` Appellants,
`
`
`
`
`
`
`Docket No. 90281
`
`vs.
`
`GEORGE E. LORTON, a Married Man
`
` Respondent.
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`
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`DOCKETING STATEMENT CIVIL APPEALS
`
`GENERAL INFORMATION
`
`Appellants must complete this docketing statement in compliance with Nevada
`Rules of Appellate Procedure (NRAP) 14(a). The purpose of the docketing
`statement is to assist the Supreme Court in screening jurisdiction, identifying issues
`on appeal, assessing assignment to the Court of Appeals under NRAP 17,
`scheduling cases for oral argument and settlement conferences, classifying cases for
`expedited treatment, and compiling statistical information.
`
`WARNING
`
`This statement must be completed fully, accurately, and on time. NRAP 14(c). The
`Supreme Court may impose sanctions on counsel or the appellant if it appears that
`the information provided is incomplete or inaccurate. Id. Failure to fill out the
`statement completely or to file it in a timely manner constitutes grounds for the
`imposition of sanctions, including a fine and/or dismissal of the appeal. Id.
`
`A complete list of the documents that must be attached appears as Question 28 on
`this docketing statement. Failure to attach all required documents will result in the
`delay of your appeal and may result in the imposition of sanctions. Id.
`
`Last updated 08/2024
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`1
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`Docket 90281 Document 2025-14975
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`This court has noted that when obligations under NRAP 14 to complete the
`docketing statement properly and conscientiously are not taken seriously, valuable
`judicial resources of this court are wasted, making the imposition of sanctions
`appropriate. See KDI Sylvan Pools v. Workman, 107 Nev. 340, 344, 810 P.2d 1217,
`1220 (1991). Please use divider pages to separate any attached documents.
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`1. Judicial District: _Second County: Washoe
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`Judge: CONNIE J. STEINHEIMER District Ct. Case No.: CV2201554
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`Department: 4
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`2. Person filing this docketing statement:
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` Name: John Henry Wright, Esq.
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`
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`
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` Bar # 6182
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` Law Firm Name: THE WRIGHT LAW GROUP, P,C,
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` Address: 2340 Paseo Del Prado, Suite D-305
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` Telephone # 702-405-0001
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` Email address: john@wrightlawgroupnv.com
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`Client name(s) (if represented by counsel): MIDTOWN 44 and THE
`PEPPER GROUP NEVADA, LLC
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`If this is a joint statement by multiple appellants, add the
`names and addresses of the other appellants and, if applicable,
`the names of their counsel and have them sign the certification
`below.
`
`
` Name
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` Bar # (if applicable)
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` Law Firm Name (if applicable)
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` Address
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` Telephone #
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` Email address
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`Last updated 08/2024
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`Client name(s) (if represented by counsel):
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`I certify I concur in the filing of this statement.
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` Signature of other appellant(s) or of counsel for other appellant Date
`
`
`
`3. Nature of disposition below (check all that apply):
` Judgment after bench trial
` Judgment after jury verdict
` Summary judgment
` Default judgment
` Grant/Denial of NRCP 60(b) relief
` Grant/Denial of injunction
` Dismissal:
` Lack of jurisdiction
` Failure to state a claim
` Failure to prosecute
` Other (specify):
` Divorce Decree:
` Original
` Modification
` Grant/Denial of declaratory relief
` Review of agency determination
` Other disposition (specify): _______________
`
`
`4. Does this appeal raise issues concerning any of the following?
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`.Child Custody
` Venue
` Termination of parental rights
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`Last updated 08/2024
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`5. Pending and prior proceedings in this court. List the case name and docket
`number of all appeals or original proceedings presently or previously pending
`before this court which are related to this appeal:
`n/a
`
`6. Pending and prior proceedings in other courts. List the case name, number
`and court of all pending and prior proceedings in other courts which are related
`to this appeal (e.g., bankruptcy, consolidated or bifurcated proceedings) and
`their dates of disposition:
`n/a
`
`7. Nature of the action. Briefly describe the nature of the action and the result
`below:
`Quiet Title and Declaratory Relief under NRS 30.010 et. seq. and NRS
`40.010 for Irrevocable License.
`
`8. Issues on appeal. State concisely the principal issue(s) in this appeal:
`
`Improper grant of prescriptive easement in contravention of explicit
`terms of a recorded deed.
`
`9. Pending proceedings in this court raising the same or similar issues. If you
`are aware of any proceedings presently pending before this court which raises
`the same or similar issues raised in this appeal, list the case name and docket
`numbers and identify the same or similar issue raised:
`n/a
`
`10. Constitutional issues: Does this appeal challenge the constitutionality of a
`Nevada Statute or ordinance?
` No. Continue to #11.
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`Last updated 08/2024
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` Yes:
`a. Identify the Nevada statute or ordinance being
`challenged:
`b. Is the State, any State agency, or a State officer or
`employee a party to this appeal in an official capacity?
`Yes
` No.
`
`11. Other issues.
`a. Does this appeal involve any of the following issues?
`
` Reversal of well-settled Nevada precedent (identify the case(s))
`
` An issue arising under the United States and/or Nevada Constitutions
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` A substantial issue of first impression
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` An issue of public policy
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` An issue where en banc consideration is necessary to maintain uniformity
`of this court's decisions
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` A ballot question
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`b. If so, explain:
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`12. Assignment to the Court of Appeals or retention in the Supreme Court.
`Briefly set forth whether the matter is retained by the Supreme Court or
`presumptively assigned to the Court of Appeals under NRAP 17, and cite the
`subparagraph(s) of the Rule under which the matter falls.
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`This matter is presumptively retained by the Supreme Court as a matter of
`first impression as determined by NRAP 17(14).
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`13. Trial. If this action proceeded to trial, how many days did the trial last? __2
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`Last updated 08/2024
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`5
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` bench trial
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`days.
`Was it a:
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`14. Judicial Disqualification. Do you intend to file a motion to disqualify or have
`a justice/judge recuse him/herself from participation in this appeal? See NRAP
`35. If so, which Justice/Judge? No
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` jury trial?
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`15. Oral argument. Would you object to submission of this appeal for disposition
` Yes
`without oral argument?
` No
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`TIMELINESS OF NOTICE OF APPEAL
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`16. Date the written judgment(s) or order(s) appealed from was/were filed in the
`district court: February 13, 2025
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`
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`If no written judgment or order has been filed in the district court, explain
`the basis for seeking appellate review:
`
`
`17. Date written notice of entry of the judgment(s) or order(s) was/were served:
`February 24, 2025
`Was service by:
` Electronic or personal delivery
` Mail
`
`
`18. Were any motions seeking relief under NRCP 50(b), 52(b), 59, or 60 or seeking
`rehearing or reconsideration filed in the district court either before or after the
`notice of appeal was filed? (attach a copy of the motion)
` No, continue to # 19.
` Yes:
`a. Specify the type of motion and the date the motion was filed in the
`district court (check all that apply)
`
`Last updated 08/2024
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`Date filed: _____________
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`
` NRCP 50(b)
`Date filed: October 29, 2024
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` NRCP 52(b)
`Date filed: October 29, 2024
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` NRCP 59
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`Date filed: October 29, 2024
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`
` NRCP 60
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`Date filed: October 29, 2024
` Rehearing/Reconsideration
`b. Date the motion was served: October 29, 2024
`c. How was the motion served:
` Electronic or personal delivery
` Mail
`d. Date the written order resolving the motion was filed: February 10, 2025
`e. Date written notice of entry of the order resolving the motion was
`served: none
`f. Was service by:
` Electronic or personal delivery
` Mail
`19. Are there any motions other than those identified in #18 above still pending in
`the district court?
` Yes. Identify the motion and the date it was filed in the district court: _
`First Amended Motion for Attorneys' Fees and Costs filed on 3/13/25
` No.
`
`
`20. Date the notice of appeal was filed in the district court: March 11, 2025
`If more than one party has appealed from the judgment or order, list the date
`each notice of appeal was filed and identify by name the party filing the
`notice of appeal:
`
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`21. Specify the statute or rule governing the time limit for filing the notice of
`appeal, e.g., NRAP 4(a) or other: NRAP 4(a)
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`Last updated 08/2024
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`SUBSTANTIVE APPEALABILITY
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`22. Specify the statute or other authority granting this court jurisdiction to
`review the judgment or order appealed from:
`a.
`
` NRAP 3A(b)(1)
` NRAP 3A(b)(3)
` NRAP 3A(b)(5)
` NRAP 3A(b)(7)
` NRAP 3A(b)(9)
` NRAP 3A(b)(11)
` NRS 38.205
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` NRS 703.376
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` NRAP 3A(b)(2)
` NRAP 3A(b)(4)
` NRAP 3A(b)(6)
` NRAP 3A(b)(8)
` NRAP 3A(b)(10)
` NRAP 3A(b)(12)
` NRS 233B.150
`Other (specify): _____________
`
`b. Explain how each authority provides a basis for appeal from the judgment
`or order:
`NRAP 3A(b)(1) - The District Court issued a written final judgment in the
`form of a Corrected Findings of Fact, Conclusions of Law, and Judgment
`by the Court on February 13, 2025 and a Notice of Entry filed on February
`24, 2025, thus triggering the need for MIDTOWN 44 and THE PEPPER
`GROUP NEVADA, LLC to Appeal.
`
`23. List all parties involved in the action or consolidated actions in the district court:
`a. Parties:
`MIDTOWN 44
`THE PEPPER GROUP NEVADA, LLC
`GEORGE E. LORTON
`
`b. If all parties in the district court are not parties to this appeal, explain in
`detail why those parties are not involved in this appeal, e.g., formally
`dismissed, not served, or other:
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`24. Give a brief description (3 to 5 words) of each party's separate claims,
`counterclaims, cross-claims, or third-party claims and the date of formal
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`Last updated 08/2024
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`disposition of each claim.
`Plaintiff's claims are for Declaratory relief/Quiet title/Prescriptive easement or
`license
`
`
`25. Did the judgment or order appealed from adjudicate ALL of the claims alleged
`below and the rights and liabilities of ALL of the parties to the action or
`consolidated actions below?
` Yes
` No
`
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`26. If you answered "No" to question 25, complete the following:
`a. Specify the claims remaining pending below:
`
`
`b. Specify the parties remaining below:
`
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`c. Did the district court certify the judgment or order appealed from as a
`final judgment pursuant to NRCP 54(b)?
` Yes
` No
`
`d. Did the district court make an express determination, pursuant to NRCP
`54(b), that there is no just reason for delay and an express direction for
`the entry of judgment?
` Yes
` No
`
`
`27. If you answered "No" to any part of question 26, explain the basis for seeking
`appellate review (e.g., order is independently appealable under NRAP 3A(b)):
`n/a
`
`28. Attach file-stamped copies of the following documents:
` The latest-filed complaint, counterclaims, cross-claims, and third-party claims
` Any motion(s) identified in questions 18 and the order(s) resolving the
`motion(s)
` Any motions identified in question 19
` Orders or NRCP 41(a)(1) dismissals that formally resolve each claim,
`counterclaim, cross- claim and/or third-party claim asserted in the action or
`consolidated action below, even if not at issue on appeal
` All orders that finally disposes of any parties in the action below, even if not
`at issue on appeal
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`Last updated 08/2024
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` Any other order challenged on appeal
` Notices of entry for each attached order
`
`
`VERIFICATION
`
`I declare under penalty of perjury that I have read this docketing statement,
`that the information provided in this docketing statement is true and
`complete to the best of my knowledge, information, and belief, and that I have
`attached all required documents to this docketing statement.
`
`/s/ John Henry Wright, Esq. (6182)
` Printed name
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`4/3/2025
`Date
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`State of Nevada, County of Clark
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`CERTIFICATE OF SERVICE
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`I certify that on the 3rd day of April, 2025, I served a copy of this completed
`docketing statement upon all parties to this appeal:
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` by electronic means to registered users of the court’s electronic
`filing system
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`If served other than through the court's electronic filing system,
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`enter the names and email address of the parties served by this
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`means and attach a copy of each party’s written consent
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`authorizing service by this means. See NRAP 25(c)(2)
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` by personally serving it upon him/her;
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`Last updated 08/2024
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` by mailing it by first class mail with sufficient postage prepaid to the
`following address(es):
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`/s/ Candi Ashdown
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`4/3/2025
`Date
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`Last updated 08/2024
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`#18. Copy of Motion attached as
`requested
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`

`

`F I L E D
`Electronically
`CV22-01554
`2024-10-29 12:47:36 PM
`Alicia L. Lerud
`Clerk of the Court
`Transaction # 10647578 : yviloria
`
`HEATHER IJAMES
`Nevada State Bar No. 13698
`Heather@Ijameslaw.com
`LAW OFFICE OF
`HEATHER A. IJAMES
`63 Keystone Ave., Suite 101
`Reno, Nevada 89503
`Telephone: (775) 870-9199
`Facsimile: (775) 997-0795
`Attorney for Defendants
`
`
`IN THE SECOND JUDICIAL COURT OF THE STATE OF NEVADA
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`IN AND FOR THE COUNTY OF WASHOE,
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`GEORGE E. LORTON, a married man,
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`v.
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`MIDTOWN 44, a Nevada corporation; THE
`PEPPER GROUP NEVADA, LLC, a Nevada
`limited liability company; DOES 1-X; ROE
`CORPORATION I-X.
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` Defendants.
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`Plaintiff,
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`Case No. CV22-01554
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`Dept. 4
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`
`
`MOTION FOR RECONSIDERATION OF
`THE COURT’S FINDINGS OF FACTS,
`CONCLUSIONS OF LAW, AND
`JUDGMENT BY THE COURT UNDER
`NRCP 52 (a)(5)(6) and (b); NRCP 59 (e);
`and NRCP 60 (a),(b), and (d)
`
`
`
`MOTION FOR RECONSIDERATION UNDER
`NRCP 52 (a)(5) and (b); NRCP 59 (e); and NRCP 60 (a),(b), and (d)
`
`
`COMES NOW Defendant MIDTOWN 44 and THE PEPPER GROUP NEVADA, LLC,
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`(“Defendants”) by and through their attorney to submit their Motion for Reconsideration on the
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`Court’s Findings of Fact, Conclusions of Law, and Judgment by the Court (“FCLJ”), issued on
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`September 26, 2024, with a Notice of Entry filed on October 15, 2024 based on the following:
`
`LAW OFFICE OF
`HEATHER A. IJAMES
`63 KEYSTONE AVE. SUITE
`101
`RENO, NV 89503
`
`
`
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`1) The FCLJ is in direct contradiction to the testimony and evidence presented at trial, which can
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`be verified through the admitted Exhibits and the Transcript; The FCLJ must be amended
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`under NRCP 52 (a)(5),(6) and (b).
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`2) Plaintiff has submitted a Motion to Correct Judgment for the above reason, but instead of
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`admitting that the Transcript is correct, is asking the Court to amend the FCLJ for what
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`Plaintiff should have (in their estimation) at trial, instead of what was actually said at trial.
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`Thus, under NRCP 59 (e) the FCLJ should be amended to reflect what was actually and
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`factually said, and not to fill the holes in Plaintiff’s case in chief. This will be further detailed
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`in Defendants’ opposition to that motion, but it is important that this Court understands that
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`this Motion should be considered first, and then Plaintiff’s motion.
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`3) Under NRCP 60 (a),(b), and (d), relief is sought because this Court made an omission or
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`mistake in applying the actual transcript and testimony, and that upon a reconsideration and a
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`thorough reading of the transcript, that the FCLJ conclusions do not match up in Plaintiff’s
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`favor.
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`MEMORANDUM OF POINTS AND AUTHORITIES
`
`I.
`
`INTRODUCTION
`Plaintiff sued Defendant on three causes of action, namely: 1) Declaratory Relief/Quiet Title
`under NRS 30.0010 and NRS 40.010 and the Restatement of Third of Property: Servitudes; (2)
`Declaratory Relief/Quiet Title for Prescriptive Easement, and (3) Declaratory Relief/Quiet Title for
`Irrevocable License.
`Trial was had and on September 26, 2024, the Court issued its Findings of Fact, Conclusions
`of Law, and Judgment by the Court (“FCLJ”) and Notice of Order was filed on October 15, 2024.
`The FCLJ gave judgment in favor of Plaintiff on the First Cause of Action, but denied
`judgment to plaintiff in the Second and Third Causes of Action. Based on such, this Motion will not
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`LAW OFFICE OF
`HEATHER A. IJAMES
`63 KEYSTONE AVE. SUITE
`101
`RENO, NV 89503
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`dive into the conclusions and judgment as their pertain to the Second and Third Causes of Action,
`only the First Cause of Action.
`This moving party requests this Motion be considered prior to Plaintiff’s Motion for
`Correction because if the “correction” is done, and Plaintiff gets to fix his testimony through his
`Motion, then this Motion would have to be re-done.
`The Court should review the transcript, assume there no corrections that need to be made, and
`rule on this Motion first. It would be grave error to allow Plaintiff to correct his case only in the
`FCLJ when he was unable to say it under oath.
`
`
`II.
`
`ARGUMENT
`A. The Findings of Fact at Issue
`Summarily, the underlying Complaint alleged that Lorton and a Mr. Larralde (Lorton’s
`predecessor in interest), had an agreement that Mr. Lorton would have the easement that is referred to
`as the Disputed Area in the FCLJ.
`However, at trial, most of Plaintiff’s evidence was that Lorton and Mr. Swain (Defendant’s
`predecessor in interest) had the agreement. Additionally, Plaintiff’s witness, Kathryn Burke was
`heavily quoted and relied on in the FCLJ to grant Lorton’s First Cause of Action. Ms. Burke is Mr.
`Swain’s daughter, so again, she was testifying to the agreement between Swain and Lorton, not
`Larralde and Lorton.
`Thus, when the Court was concluding that during the transfer to Lorton that “Swain” meant to
`give Lorton the Disputed Area, that is factually impossible; Larralde did the transfer to Lorton, not
`Swain.
`
`The only evidence Mr. Lorton gave about the agreement with Mr. Larralde is his own
`testimony, which Defendants objected and defended to as a violation of the Dead Man’s Statute.
`Again, in the FCLJ, the Court concluded that the Dead Man’s Statute did not apply to SWAIN, but
`never ruled on whether it applied to LARRALDE. As written in the FCLJ, that conclusion could not
`even apply to Larralde. Since it cannot be applied to Larralde, then all evidence of Mr. Lorton’s
`testimony about any “agreements” with Larralde are precluded.
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`28
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`LAW OFFICE OF
`HEATHER A. IJAMES
`63 KEYSTONE AVE. SUITE
`101
`RENO, NV 89503
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`As to Swain, the evidence about any agreement between Swain and Lorton is clearly the
`focus of the FCLJ. This is proper because that was the testimony of Mr. Lorton, Ms. Burke, and all
`the other evidence entered into the record. Again, the Plaintiff’s case in chief was heavily centered on
`the conduct between Swain and Lorton.
`Thus, the FCLJ found that the agreement between Mr. Swain and Mr. Lorton, and the
`evidence that Plaintiff offered, created an imperfectly created servitude by Mr. Swain to Mr. Lorton.
`However, Mr. Swain was not the party who sold to Mr. Lorton, making the FCLJ erroneous in its
`conclusions.
`Of course, Plaintiff, in their Motion for Correction, wants the Court to swap Mr. Swain’s
`name for Mr. Larralde’s name, calling it a typo, and leaving the conclusions the same. However, the
`law as stated in the FCLJ only creates an imperfectly created servitude between a grantor and a
`grantee in a deed, and Mr. Swain was not the grantee of the Lorton deed; Mr. Larralde was.
`It was understandable that the Court assumed in the FCLJ that the agreement discussed in the
`FCLJ was between Swain and Lorton because it was Plaintiff who kept offering the evidence
`regarding Mr. Swain and not Mr. Larralde. Mr. Lorton testified more about Swain than Larralde, and
`Plaintiff’s only other witness solely talked about the agreement between Swain(her father) and
`Lorton.
`All the same, since Swain was not the grantor, the application of an imperfectly created
`servitude cannot apply to Swain. Thus, the Court’s FCLJ is not supported by the evidence.
`Moreover, it would be improper to simply swap out Swain’s and insert Larralde’s name as Plaintiff
`wants in their Motion for Correction.
`According to the Transcript, Swain’s name must stay, and the FCLJ must be amended to
`clarify that since Swain was not the grantor to Lorton, that an imperfectly created servitude could not
`exist between Swain and Lorton.
`
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`B. The FCLJ Applied the Restatement (Third) of Property (Servitudes) §2.16 (2000) as it
`Applies to a Grantor to a Grantee During a Transfer, and Swain was not the Grantor.
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`LAW OFFICE OF
`HEATHER A. IJAMES
`63 KEYSTONE AVE. SUITE
`101
`RENO, NV 89503
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`The FCLJ said: “It is more likely that Mr. Swain meant to include the Disputed Area as part
`of the express easement he granted LORTON over APN 014-062-03, but its formal inclusion was not
`made due to clerical error.” (FCLJ, Pg. 10, Lns 8-10.)
`Swain did not grant any express easement, had no ownership of APN 014-062-03, and thus
`application of Restatement (Third) of Property (Servitudes) §2.17 (2000) cannot apply to him.
`Clearly, the Court’s logic is sound when applying Restatement (Third) of Property
`(Servitudes) §2.17 (2000) to intent, but the intent would have to be applied to Larralde, not Swain.
`When looking at the Plaintiff’s case in chief and the FCLJ, the Court applied the Restatement
`(Third) of Property (Servitudes) §2.17 (2000) because Burke said: “[we] have always had an
`agreement with Eddie Lorton on the alley.” (Id. Lns. 22-23.)
`But Burke is talking about Swain, not Larralde, the grantor.
`Lastly, the FCLJ misstated testimony when it said: “Also, LORTON testified at trial that he
`and Mr. Swain had a handshake agreement for the Disputed Area.” (Id. Lns. 24-25.) Upon a closer
`look, no such thing was said. There was an instance where Lorton said that he had a handshake with
`Larralde, but not over the Disputed Area specifically:
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`Transcript Day One, Pgs. 60, 61, Lns 20-24; Lns 1-14:
`“A: well, I met him over at the property to walk through it. And that's when we
`had our discussion on what we were doing, what I needed, and he said he was
`surprised because the warehouse sold first, and then him and his sisters own all
`three of those pieces, he thought the house, or the fourplex would have sold first.
`And so I said yeah, so. And it was nice because then I could say what I needed,
`and then I had no idea about what occurred that quick transfer to a sister
`probably so she could take the funds when Mr. Swain bought it a month later,
`and I was the first one in that had made the deal on what areas I needed and he
`said yes, and so I said yes. And so I bought the building or I wouldn't have
`bought it if I didn't have what I needed and that I was the first one to buy.
`Q: Did you shake hands with Mr. Larralde?
`A: I did, yeah. We, you know, you know, every deal I do, you know when, I
`went to lunch with this gentleman you shake their hand.”
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`The above actually says that whatever Lorton and Larralde spoke about was then
`consummated by a handshake. We do not know what was actually said, and cannot cross-examine
`Larralde and it is self-serving for Lorton to know put words in Larralde’s mouth. However, we DO
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`LAW OFFICE OF
`HEATHER A. IJAMES
`63 KEYSTONE AVE. SUITE
`101
`RENO, NV 89503
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`have evidence that Lorton said he bought the property with three easements, and his deed from
`Larralde says there are three easements not including the Disputed Area. Since Mr. Larralde took
`the time to give Lorton the three easements, who is to say, now that he is dead, that Mr. Larralde
`planned on giving more other than the self-serving testimony of Lorton?
`Obviously the Court understands the need of corroborating evidence when you have a
`deceases individual, which is why it used the evidence of Burke in the FCLJ, but again, Burke was
`used to talk about her father’s intent, not Larralde’s.
`Based on the FCLJ findings, with the understanding the Court misunderstood who deeded the
`property to Lorton, the FCLJ should have found against Mr. Lorton on all causes of action. In
`particular, on the First Cause of Action as follows:
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`C. Additional FCLJ Misquoted Testimony.
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`FCLJ, Findings of Fact No. 17: “LORTON claims that he and Mr. Larralde agreed that there
`would be additional land on APN 014-062-04 that was not included in the Recorded Easement that
`would be included as part of LORTON’s easement (hereinafter the “Disputed Area”) [Mar. 18 Tr.
`Tran at 144-145].
`This is not what is said in the transcript. This was a cross examination of Mr. Lorton by Ms.
`Ijames. Ms. Ijames asked:
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`Q: “…You said you told Mr. Larralde you needed half of the lot. Is that correct?"
`A: “Um, I asked him and then told him that I did need half the lot or I wouldn't
`have bought it.” [Mar. 18 Tr. Tran at 144-145.]
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`That is not an agreement. It’s Mr. Lorton testifying that he wanted half of the lot, not that
`there was an agreement to it. This is why the FCLJ used Burke’s supporting evidence, but Burke
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`D. The FCLJ’s Application of Restatement (Third) of Property (Servitudes) §2.17 (2000)
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`to Swain is Erroneous Because it was not Adverse.
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`LAW OFFICE OF
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`63 KEYSTONE AVE. SUITE
`101
`RENO, NV 89503
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`The FCLJ held that Restatement (Third) of Property (Servitudes) §2.17 (2000) applies
`because the use was open and continuous. (FCLJ. Pg. 10. Lns 15-26). Yet, the Court also cites that
`§2.17 is in addition to §2.16, which first requires prescription, i.e., a lack of consent. Section 2.17
`specifically builds off of §2.16 because §2.17 uses the definition of prescription by referring the
`reader to §2.16, and §2.16 defines prescription as “without consent.” (See, quote of §2.16 and §2.17
`in FCLJ, Page 8, Lns. 3-16.
`The FCLJ then applies §2.17 to the Swain/Lorton testimony of agreement, but all the
`testimony in that regard points to CONSENT.
`Here are the multiple references of consent:
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`Transcript Day One, Pg. 91, Lns 3- 9:
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`“Q: Okay. And it says this is from Kathy Burke. “We’ve always had an agreement
`with Eddie Lorton on the alley.” Is that true?
`A: It is.
`Q: Okay. And you would not have bought the property without that agreement in
`place.
`A: Correct.”
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`Transcript Day One, Pg. 179, Lns 4- 8:
`“Q: Here it says Kathy is saying that she always had an agreement with you; Is
`that correct?
`A: Yes.
`Q: Is that agreement to park vehicles there?
`A: Yes.”
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`Transcript Day One, Pg. 224, 225, Lns 10- 24; Ln 1:
`“Q: Did you and – I’m sorry, did your father and Mr. Lorton have an agreement
`that Mr. Lorton could utilize an area of parking?
`A: That was my understanding.
`Q: But you – were you a party to that agreement?
`A: No.
`Q: So all you have is what other people have told you?
`A: What my father told us that he had an agreement with Eddie. I was not there
`when he and Eddie made the agreement.
`Q: But again, back to your -- I'm sorry, when you were mentioning that agreement
`between your father and Mr. Lorton you were not present for that agreement,
`correct?
`A: Correct.
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`Transcript Day One, Pg. 67, Lns 12- 17:
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`LAW OFFICE OF
`HEATHER A. IJAMES
`63 KEYSTONE AVE. SUITE
`101
`RENO, NV 89503
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`“Q: Was there any big conflict between the apartment house tenants and your use
`of the red easement?
`A: Well, me and Mr. Larralde always got along great. With Mr. Swain and Mrs.
`Burke always had a great relationship.”
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`Transcript Day One, Pg. 74, Lns 16- 19:
`“A: Well, I always like my property nice so I asked Mrs. Burke, because Mr.
`Swain had died, if they wanted to split the cost of paving it so it was a nice once
`and for all.”
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`Therefore, §2.16 and §2.17 cannot be applied simply to for the FCLJ to say that Lorton’s use
`during Swain’s ownership of Defendants’ parcel was “open” and “continuous”. If it was done in
`consent, it does not apply. There is a plethora of testimony that there was permission.
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`E. The FCLJ’s Statement that Testimony Regarding Swain Overcomes the Dead Man’s
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`Statute because the Statements were Against Swain’s Pecuniary Interest; This was
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`also Based on the FCLJ’s Erroneous Statements
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`The FCLJ held that the testimony regarding Mr. Swain was going to be “accepted” because
`the statements Mr. Lorton and Ms. Burke testified to about what Mr. Swain had said were statements
`against Mr. Swain’s pecuniary interests. (FCLJ, Pg. 15, 1-22). But, this moving party asks the Court:
`What pecuniary Interest? Mr. Swain took his property with Mr. Lorton already claiming the Disputed
`Area was his. Mr. Lorton testified to such as follows:
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`Transcript Day One, Pgs. 60, 61, Lns 20-24; Lns 1-14:
`“A: well, I met him over at the property to walk through it. And that's
`when we had our discussion on what we were doing, what I needed, and he said
`he was surprised because the warehouse sold first, and then him and his sisters
`own all three of those pieces, he thought the house, or the fourplex would have
`sold first. And so I said yeah, so. And it was nice because then I could say what I
`needed, and then I had no idea about what occurred that quick transfer to a sister
`probably so she could take the funds when Mr. Swain bought it a month later, and
`I was the first one in that had made the deal on what areas I needed and he said
`yes, and so I said yes…”
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`LAW OFFICE OF
`HEATHER A. IJAMES
`63 KEYSTONE AVE. SUITE
`101
`RENO, NV 89503
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`Lorton testified that he bought first from Larralde, then a month later, Swain bought. Then,
`Mr. Lorton “said” to Mr. Swain that Disputed Area was his, and then all the “agreements” with
`Swain that are so heavily relied on in the FCLJ are based on Swain already thinking the Disputed
`Area was Lorton’s based on what Lorton said, not what was in the deeds.
`At most, we have to at least consider the possibility that Mr. Lorton simply bulldozed over
`Mr. Swain and Mr. Swain just accepted that the land was never his because of Mr. Lorton’s untruths.
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`Or, as repeatedly claimed by the evidence, that Swain gave Lorton a revocable license to use
`the area.
`Such conclusion is supported by the fact that Mr. Lorton did not even know what his actual
`easements were at trial, so we should conclude that he did not know up from down regarding the
`easements when he first met Mr. Swain:
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`Transcript Day One, Pg. 171, Lns 9- 14:
`“Q: All right. Let's go to Exhibit 20. Can you point out what your legal easements
`are? I should say legal recorded easements.
`A: Well, I learned this over the last few weeks and I guess the area here
`(indicating), within the first and back parcel.”
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`Transcript Day One, Pg. 172, 173, Lns 12- 24; Lns 1- 3:
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`THE COURT: -- okay? We’re going to take a short recess.
`Court’s in recess.
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`(Short break.)
`THE COURT: Okay, Mr. Lorton, go ahead and take the stand.
`THE WITNESS: Thank you.
`THE COURT: Okay. You m