REYNOLDS VS. TUFENKJIAN
2020 NV 19
| Nev. | 2020Background
- Appellants Robert G. Reynolds and Diamanti Fine Jewelers sued respondents Raffi Tufenkjian and Luxury Holdings LV for breach of contract, fraud, negligent misrepresentation, and elder-exploitation related to a jewelry‑store sale; the district court granted summary judgment for respondents and awarded attorney fees.
- Appellants appealed but did not stay execution; respondents obtained a writ of execution authorizing levy on "all causes of action, claims ... including those in the underlying district court action."
- At the sheriff’s sale respondents paid $100 for "all the rights, title and interest" in the district‑court action and moved to substitute themselves as real parties in interest under NRAP 43 and voluntarily dismiss the appeal under NRAP 42(b).
- Central legal question: whether claims sold at the execution sale were assignable (and therefore properly conveyed) — i.e., which "things in action" may be executed and transferred by judicial sale.
- The Supreme Court held that tort claims that are personal (fraud and elder‑exploitation) are not assignable and thus not subject to execution, but claims that allege only pecuniary loss (negligent misrepresentation) and contract claims are assignable and were conveyed at the sale.
- Result: respondents’ motion to substitute and to voluntarily dismiss the appeal was granted in part (negligent misrepresentation and breach of contract) and denied in part (fraud and elder‑exploitation); briefing was reinstated only as to the remaining (personal) claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of "things in action" subject to execution | NRS broadly allows levy on "things in action," so sale can convey appellants' claims | Sale/levy valid under statutes; purchasers acquire the claims and can substitute on appeal | Only assignable rights of action are subject to execution; sheriff can convey no greater right than debtor could transfer |
| Assignability of fraud and elder‑exploitation claims | Reynolds: these claims are personal and unassignable; sale cannot transfer them | Respondents: statutes treat "things in action" as personal property; the purchase at sale conveyed the claims | Fraud and elder‑exploitation are personal in nature, unassignable, and were not acquired by respondents; substitution denied for these claims |
| Assignability of negligent misrepresentation | Reynolds: claim is personal and shouldn't be sold | Respondents: negligent misrepresentation here alleges only pecuniary loss and is a property tort, thus assignable | Negligent misrepresentation (limited to pecuniary loss) is assignable and was conveyed; substitution granted for this claim |
| Assignability of breach of contract | Reynolds: (limited) possible argument that some contracts are personal | Respondents: contract claims are generally assignable | Breach of contract claims are generally assignable and were conveyed; substitution granted for this claim |
Key Cases Cited
- Gallegos v. Malco Enters. of Nev., Inc., 127 Nev. 579, 255 P.3d 1287 (2011) (recognizes rights of action may be personal property and discusses assignability/execution)
- Maxwell v. Allstate Ins. Co., 102 Nev. 502, 728 P.2d 812 (1986) (public‑policy limits on assignment of certain tort rights such as subrogation/insurer interests)
- Prosky v. Clark, 32 Nev. 441, 109 P. 793 (1910) (fraud claims characterized as personal and not assignable)
- Achrem v. Expressway Plaza Ltd., 112 Nev. 737, 917 P.2d 447 (1996) (distinguishes assignment of tort claims from assignment of tort proceeds)
- Barmettler v. Reno Air, Inc., 114 Nev. 441, 956 P.2d 1382 (1998) (negligent misrepresentation limited to business/pecuniary contexts)
- Butwinick v. Hepner, 128 Nev. 718, 291 P.3d 119 (2012) ("thing in action" does not include a party's defensive rights)
- Chaffee v. Smith, 98 Nev. 222, 645 P.2d 966 (1982) (public‑policy prohibition on assigning certain claims, e.g., unasserted legal malpractice)