IN THE SUPREME COURT OF THE STATE OF NEVADA
PHILLIP J. FAGAN, JR., AN No. 83442
INIDIVIDUAL AND AS TRUSTEE OF
THE PHILLIP J. FAGAN, JR. 2001
TRUST,
Petitioner,
vs.
THE EIGHTH JUDICIAL DISTRICT
FILED
COURT OF THE STATE OF NEVADA, MAR 1 7 2022
IN AND FOR THE COUNTY OF TH A. BROWN
CLARK; AND THE HONORABLE - ' OF " PREME COURT
ERIKA D. BALLOU, DISTRICT JUDGE, LaLPU CLERK
Respondents,
and
AAL-JAY, INC., A NEVADA
CORPORATION,
Real Party in Interest.
ORDER DENYING PETITION
This is an original petition for writ of mandamus or, in the
alternative, writ of prohibition, challenging a district court order granting
specific performance on an order shortening time.
Petitioners Dr. Phillip J. Fagan and the Phillip J. Fagan, Jr.
2001 Trust (collectively, Fagan) and real party in interest AAL-JAY, Inc.,
entered negotiations in 2016 to sell Fagan's house in Las Vegas, Nevada to
AAL-JAY. Negotiations apparently deteriorated significantly in the
following years, resulting in AAL-JAY suing Fagan, principally pleading
breach of contract. Fagan answered and counterclaimed, raising numerous
AAL-JAY filed an emergency motion for specific performance based
on a revised purchase agreement, on an order shortening time. Following
Z. -s
a hearing on the motion, the district court found a valid contract and
ordered specific performance. This order did not resolve all the parties'
claims or counterclaims. Fagan now petitions this court for a writ of
mandamus, or, in the alternative, a writ of prohibition requesting that we
vacate the district court's order.1 While Fagan filed this petition on an
emergency basis, he did not seek a stay.
"A petitioner bears the burden of demonstrating that
extraordinary relief is warranted, and whether to consider a writ of
mandamus is ultimately within this court's discretion." Cameron v. Eighth
Judicial Dist. Court, 135 Nev. 214, 216, 445 P.3d 843, 844 (2019) (citation
omitted). To meet this burden, the petitioner must show that: (1) he or she
is legally entitled to the act the writ seeks to enforce, (2) the district court
is under a "legal duty" to perform the act sought, and (3) there is no other
adequate legal remedy available besides having the writ granted. Walker
v. Second Judicial Dist. Court, 136 Nev. 678, 680, 476 P.3d 1194, 1196
(2020) (internal quotation marks omitted).
To the third requirement, "[b]ecause mandamus is an
extraordinary remedy, this court does not typically employ it where
ordinary means, already afforded by law, permit the correction of alleged
errors." Id. at 681, 476 P.3d at 1197. Fagan has an adequate legal remedy
in the form of an appeal from a final judgment that resolves all the parties'
claims and counterclaims. See id. at 678, 476 P.3d at 1195; Pan v. Eighth
Judicial Dist. Court, 120 Nev. 222, 225, 88 P.3d 840, 841 (2004). An appeal
'A writ of prohibition is applicable when a district court acts "without
or in excess of [its] jurisdiction." NRS 34.320; see also Club Vista Fin. Servs.,
LLC v. Eighth Judicial Dist. Court, 128 Nev. 224, 228, 276 P.3d 246, 249
(2012). Because the district court had jurisdiction to hear and decide the
issue at hand, we treat this petition as one of mandamus.
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is typically preferable to a writ proceeding, even when an appeal is not
immediately available, because appellate proceedings present the entire
record before this court for review. Walker, 136 Nev. at 681, 476 P.3d at
1197. We follow our typical preference here. We conclude that the
availability of an appeal bars writ relief in this matter because: (1) the
district court's purported errors are reviewable on appeal, and (2) this court
will benefit from the presence of a more complete record on appeal.
"This court has alternatively granted mandamus relief where a
petitioner presented 'legal issues of statewide importance requiring
clarification, and our decision . . . promote[d] judicial economy and
administration by assisting other jurists, parties, and lawyers."' Id. at 683,
476 P.3d at 1198 (quoting MDC Rests., LLC v. Eighth Judicial Dist. Court,
134 Nev. 315, 319, 419 P.3d 148, 152 (2018)). Having considered Fagan's
arguments regarding advisory mandamus, we determine that relief is not
warranted on that basis. Accordingly, we
ORDER the petition DENIED.
J.
Hardesty
A(14C.A.g , J. J.
Stiglich
cc: Hon. Erika D. Ballou, District Judge
Black & Wadhams
Lewis Roca Rothgerber Christie LLP/Las Vegas
Eighth District Court Clerk
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