respondent's position that its claim against Horton accrued in 2008 when
respondent realized that Horton had a strand of barbed wire on her fence
in violation of the CC&Rs. See id. Because appellants have not identified
in their opening brief or appendix 2 any evidence in the record that would
have created a genuine issue of material fact as to the timeliness of
respondent's claims, we conclude that summary judgment on that issue
was proper. 3 See Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598,
602-03, 172 P.3d 131, 134 (2007) ("[I]f the nonmoving party will bear the
burden of persuasion at trial, the party moving for summary judgment
may satisfy the [summary judgment standard] by. . . pointing out. . . that
there is an absence of evidence to support the nonmoving party's case."
(internal quotation omitted)); see also Nev. Ass'n Servs., Inc. v. Eighth
Judicial Dist. Court, 130 Nev. Adv. Op. No. 94, 338 P.3d 1250, 1254 (2014)
(noting that the party asserting an affirmative defense bears the burden of
proving each element of that defense); Bank of Nev. u. Friedman, 82 Nev.
2 We have not considered the arguments made for the first time in
appellants' reply brief, see Francis v. Wynn Las Vegas, LLC, 127 Nev. Adv.
Op. No. 60, 262 P.3d 705, 715 n.7 (2011), including appellant Horton's
attempt to rely on her affidavit as support for the untimeliness of
respondent's claim against her. In any event, it is unclear whether this
argument was even made in district court, as appellants have failed to
include their summary judgment opposition or their supplemental
opposition in their appellate appendix. See Cuzze v. Univ. & Cmty. Coll.
Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007) (recognizing that
appellants are responsible for making an adequate appellate record" and
observing that when an appellant "fails to include necessary
documentation in the record, we necessarily presume that the missing
portion supports the district court's decision").
3 In
light of this conclusion, we need not consider whether the district
court properly applied the continuing nuisance doctrine.
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417, 422 n.4, 420 P.2d 1, 4 n.4 (1966) (recognizing the general rule that the
statute of limitations is an affirmative defense).
Second, we reject appellants' contention that they produced
evidence sufficient to create a question of fact regarding the viability of
their affirmative defenses of estoppel, waiver, lack of uniform
enforcement, and retaliation. In particular, appellants have not identified
any evidence in the record to support a reasonable inference that
respondent failed to enforce similar CC&R violations committed by other
residents or that respondent was enforcing the underlying CC&R
violations in retaliation against appellants. Horton's photographs of other
barbed wire fences, combined with her unsubstantiated conclusions that
those fences were governed by and violated the CC&Rs, was insufficient to
create a question of material fact. 4 See Wood, 121 Nev. at 732, 121 P.3d at
1031 ("While the pleadings and other proof must be construed in a light
most favorable to the nonmoving party, that party bears the burden to do
more than simply show that there is some metaphysical doubt as to the
operative facts . ." (internal quotation omitted)).
Appellants also contend that the district court erred in
refusing to order the parties to return to non-binding arbitration. Having
considered the basis for this contention that was made in district court, see
Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981), we
4 Similarly,the inferences that appellants seek to draw from the
isolated statements of Robert Spielman and Ron Savinski are not
reasonable. See Wood, 121 Nev. at 729, 121 P.3d at 1029 (recognizing
that, while inferences must be drawn in favor of the nonmoving party,
those inferences must be reasonable).
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conclude that this contention does not warrant reversal of the appealed
judgment. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Poo, J.
Parraguirre
ift,c
Douglas
cc: Hon. Jerome Polaha, District Judge
David Wasick, Settlement Judge
Glade L. Hall
Kern & Associates, Ltd.
Washoe District Court Clerk
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