# PAULOS VS. FCH1, LLC

> Nevada Supreme Court · January 30, 2020 · 2020 NV 2

URL: https://www.frixlaw.com/law-library/cases/4503121

## Case

- **Court:** Nevada Supreme Court
- **Decided:** January 30, 2020
- **Citations:** 2020 NV 2
- **Precedential status:** Published
- **Opinion:** Opinion
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4503121

## Opinion text

136 Nev., Advance Opinion 2-
IN THE SUPREME COURT OF THE STATE OF NEVADA

CRISTINA PAULOS, No. 74912
Appellant,
vs.
FCH1, LLC, A NEVADA LIMITED
LIABILITY COMPANY; LAS VEGAS FILED
METROPOLITAN POLICE
DEPARTMENT, A GOVERNMENT JAN 3 0 2M,
ENTITY; JEANNIE HOUSTON; AN
INDIVIDUAL; AND AARON BACA, AN
INDIVIDUAL,
Respondents.

Appeal from a district court summary judgment in a tort action.
Eighth Judicial District Court, Clark County; Rob Bare, Judge.
Affirmed in part, reversed in part, and remanded.

Lewis Roca Rothgerber Christie LLP and Abraham G. Smith and Daniel F.
Polsenberg; Blut Law Group, APC, and Elliot S. Blut, Las Vegas,
for Appellant.

Marquis Aurbach Coifing and Craig R. Anderson and Kathleen A. Wilde,
Las Vegas,
for Respondents Aaron Baca and Las Vegas Metropolitan Police
Department.

Brandon Smerber Law Firm and Justin W. Smerber and Lewis W. Brandon,
Jr., Las Vegas,
for Respondents FCH1, LLC, and Jeannie Houston.

BEFORE THE COURT EN BANC.

SUPREME COURT
OF
NevADA

(0) I947A /0- b[41 tetr
OPINION

By the Court, HARDESTY, J.:
In this appeal, we consider the preclusive effect of a qualified-
immunity decision where the federal district court's judgment addressed
both prongs of the qualified-immunity inquiry but the federal appellate
court addressed only one prong to affirm the judgment. To determine the
preclusive effect of the federal court judgment, we look to federal common
law, which applies the reasoning set forth in the Restatement (Second) of
Judgments section 27 comment o (1982) to resolve similar issue preclusion
questions. The Restatement provides that when a judgment in the first
court resolves two issues, either of which is sufficient to support the result,
the judgment is not preclusive for both issues when the appellate court only
relies on one issue to affirm the judgment. Rather, issue preclusion attaches
only to the issue answered by the appellate court, not to the issue on which
the appellate court was silent.
Applying the federal common law here, we conclude that
because the federal district court judgment was affirmed only on the ground
that the law was not clearly established, the finding that the officer's
behavior was reasonable such that he did not violate a constitutional right
has no preclusive effect. Therefore, we hold the Nevada district court erred
in finding that issue preclusion applied to the question of whether the
officer's conduct was unreasonable, and we reverse the district court's
summary judgment in favor of respondent Officer Aaron Baca. We affirm
the district court's summary judgment in favor of respondent Las Vegas
Metropolitan Police Department (LVMPD) because it was entitled to
discretionary immunity. Further, we reverse the district court's grant of
summary judgment to respondents FCH1, LLC, and Jeannie Houston

2
because the district court provided no factual findings or basis for its
conclusion.
I.
In August 2011, appellant Cristina Paulos experienced a
mental health episode while driving in front of the Palms Resort and Casino
in Las Vegas that led her to cause two car accidents. After the collisions,
Paulos left her car and tried to enter the drivefs side of the second car she
had hit, whose owner was still in the driver's seat. Officer Baca arrived at
the scene of the accidents and was informed that Paulos was attempting to
steal the second vehicle. Officer Baca approached Paulos, and she walked
away from him. Officer Baca then ordered Paulos to stop, and she turned
around and lunged at him in an attempt to grab his weapon. Officer Baca
pushed Paulos away and attempted to arrest Paulos in a standing position.
Paulos resisted and began yelling incoherently. Officer Baca took her to the
ground and attempted to arrest her on the hot asphalt. On the ground,
Paulos continued to resist the arrest. Officer Baca called on respondent
Houston, a security guard at the Palms, for assistance.
The parties do not contest, and the district court accepted, that
Paulos stayed on the ground for at most two minutes and forty seconds after
additional officers arrived on scene. The arriving backup officers took
Paulos off the asphalt and onto a grassy area. Other LVMPD officers
impounded Paulos's vehicle and cited Paulos for driving while intoxicated.
Paulos continued yelling and screaming at the officers. Paulos was taken
to a hospital, where doctors determined she suffered from second- and third-
degree burns.
In August 2012, Paulos filed suit in state court. In her
complaint and amended complaints, Paulos asserted claims of negligence

SUPREME COURT
OF
NEVADA

3
(0) 1447A 411#.
and false imprisonment against FCH11 and Houston; a claim of negligence
against Officer Baca and other LVMPD officers (the LVMPD defendants); a
claim of negligent hiring, training, and supervision against LVMPD; a claim
of excessive force in violation of the Fourth Amendment under 42 U.S.C.
§ 1983 (2012) against the LVMPD defendants; and a claim of failure to
train, direct, or supervise against LVMPD under Monell v. Department of
Social Services of City of New York, 436 U.S. 658, 694-95 (1978). The
defendants removed the case to federal district court and moved for
summary judgment on the claims against them.
In federal district court, Judge James C. Mahan concluded that
Officer Baca was entitled to qualified immunity because he did not violate
a clearly established constitutional right. Paulos v. FCI-I1, LLC, No. 2:13-
CV-1546 JCM (PAL), 2015 WL 1119972, at *9-12 (D. Nev. Mar. 12, 2015).
First, he concluded that Officer Baca had not used excessive force because
his "use of minimal force in restraining [Paulos] was appropriate
considering the objective threat she posed and her undeniable attempt to
resist arrest." Id. at *9. Second, Judge Mahan concluded that "there is no
clearly established right against being restrained on hot asphalt for a brief
period of time." Id. at *11. Nor did Judge Mahan find Officer Baca's conduct
"so patently violative of [a] constitutional right" as to show that he should
have known that restraining Paulos in that manner was unconstitutional.
Id. at *12 (alteration in original) (quoting Boyd v. Benton Cty., 374 F.3d 773,
783 (9th Cir. 2004)). Judge Mahan further held that because neither Officer
Baca nor the other LVMPD officers had violated Paulos's constitutional
rights, LVMPD could not be liable under Monell. Icl. Having granted

1FCH1 is the name of the limited liability company for the Palms
Resort and Casino.
SUPREME COURT
OF
NEVADA
4
(0, 1947A 44a#,
summary judgment to LVMPD and the LVMPD defendants on the two
federal claims, Judge Mahan declined to exercise supplemental jurisdiction
over the remaining state law claims and dismissed them without prejudice.
Id. at *3.
Paulos appealed Judge Mahan's order to the Ninth Circuit
Court of Appeals. Paulos v. FCH1, LLC, 685 F. App'x 581 (9th Cir. 2017).
The Ninth Circuit affirmed in an unpublished order, holding that Paulos
had not overcome Officer Baca's assertion of qualified immunity. Id. at 582.
Noting the two-prong showing for overcoming qualified immunity—that
(1) the officers violated a constitutional right and (2) the right was clearly
established—the Ninth Circuit used its discretion to only answer prong two,
concluding "[n] o decision from the Supreme Court or this Circuit clearly
establishes that keeping a suspect on hot asphalt for approximately two
minutes and forty seconds after backup officers arrive on the scene
constitutes excessive force when the suspect does not inform the officers
that the pavement is hurting her." Id. Additionally, the court held that
Paulos had failed to establish a Monell claim because "she did not provide
sufficient evidence of a pattern of similar, allegedly unconstitutional
conduct . . and [LVMPD's] mere failure to discipline its officers does not
amount to ratification of their allegedly unconstitutional actions." Id.
(internal quotation marks omitted).
Before the Ninth Circuit issued its disposition, but after Paulos
appealed Judge Mahan's order, Paulos refiled her state law negligence
claims against LVMPD, the LVMPD defendants, FCH1, and Houston, as
well as her false imprisonment claim against FCH1 and Houston. LVMPD
and the LVMPD defendants moved to dismiss the complaint, or, in the
alternative, for summary judgment, arguing that the negligence claim

SUPREME COURT
OF
NEVADA

5
(0) 1947A .11W1.
against Officer Baca was precluded because Judge Mahan had already
found that Officer Baca acted reasonably and that the negligent hiring,
training, and supervision claim was barred by NRS 41.032(2) discretionary
immunity. The district court granted in part and denied in part the motion.
First, the district court found that issue preclusion did not apply to preclude
Paulos's simple negligence claim against Officer Baca because Judge
Mahan "did not issue a ruling or a finding that [he] acted reasonably."
Rather, Judge Mahan only addressed the issue of qualified immunity.
Thus, the district court concluded that the issues were not identical and
issue preclusion was not appropriate, and the district court denied the
motion with respect to the negligence claim. Second, looking to federal
analogues, the district court determined that NRS 41.032(2)s
"discretionary function exception barred negligent hiring and supervision
claims" and that LVMPD's alleged failure to adequately train its officers fell
within the scope of discretionary immunity. Thus, the district court granted
the motion with respect to the claim of negligent hiring, training, and
supervision.
The LVMPD defendants asked the district court to reconsider
its ruling and to stay its decision pending the disposition from the Ninth
Circuit, which the district court granted. Further, FCH1 and Houston, in
joining Officer Baca and LVMPD's motion to reconsider, argued that
Houston acted in good faith to Officer Baca's summons for assistance and
that NRS 171.132 thus immunized them from the negligence and false
imprisonment claims.
After the Ninth Circuit affirmed Judge Mahan's order, the
district court lifted its stay. The district court then granted Officer Baca
and LVMPD's motion for summary judgment on all claims. First, the

SUPREME COURT
OF
NEVADA

4V
6
(c), 1947A . .

MIME
district court concluded that issue preclusion applied to the negligence
claim against Officer Baca because Judge Mahan had determined that he
acted reasonably under the Fourth Amendment and the issue of
reasonableness under the Fourth Amendment was identical to that under
Nevada negligence law. Thus, the district court found that its previous
order denying summary judgment on that claim was erroneous. Second,
the district court neither addressed nor reconsidered its previous ruling
that discretionary immunity applied to LVMPD but simply granted the
summary judgment motion. Third, the district court granted FCH1 and
Houston's motion for joinder and subsequently dismissed the negligence
and false imprisonment claims without providing its reasoning. Paulos now
appeals.

Paulos challenges the district court's order granting summary
judgment to Officer Baca because the judgment of the federal court was not
final and preclusive as to whether Officer Baca acted reasonably. Further,
Paulos argues the district court erred in granting LVMPD's motion for
summary judgment on the claim of negligent hiring, training, and
supervision of Officer Baca. Finally, Paulos argues that FCH1 and Houston
cannot rely on a good-faith immunity defense for the negligence and false
imprisonment claims.

A district court's decision to grant summary judgment is
reviewed de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026,
1029 (2005). Summary judgment is proper if the pleadings and all other
evidence on file demonstrate that no genuine issue of material fact exists
and that the moving party is entitled to judgment as a matter of law. Id.

SUPREME CouFrr
OF
NEVADA

(o) 1947A <44.1el.
7
All evidence must be viewed in a light most favorable to the nonmoving
party. Id. To withstand summary judgment, the nonmoving party cannot
rely solely on general allegations and conclusions set forth in the pleadings,
but must instead present specific facts demonstrating the existence of a
genuine factual issue supporting the claims. Id. at 731, 121 P.3d 1030-31;
NRCP 56.
IV.
This appeal asks us to resolve an issue of first impression. We
must determine the issue-preclusive effect of a federal court decision when
the federal district court judgment addressed both prongs of the qualified-
immunity inquiry but the federal appellate court decision affirming the
judgment addressed only one of those prongs.
Whether issue preclusion applies is a question of law that we
review de novo. Alcantara v. Wal-Mart Stores, Inc., 130 Nev. 252, 256, 321
P.3d 912, 914 (2014). We apply federal law to determine the preclusive
effect of a federal court decision in a nondiversity case. Garcia v. Prudential
Ins. Co. of Am., 129 Nev. 15, 21, 293 P.3d 869, 873 (2013). Federal issue
preclusion applies when:
(1) the issue necessarily decided at the previous
proceeding is identical to the one which is sought to
be relitigated; (2) the first proceeding ended with a
final judgment on the merits; and (3) the party
against whom [issue preclusion] is asserted was a
party or in privity with a party at the first
proceeding.
Paulo v. Holder, 669 F.3d 911, 917 (9th Cir. 2011) (alteration in original)
(internal quotation marks omitted). Issue preclusion bars the "successive
litigation of an issue of fact or law actually litigated and resolved in a valid
court determination essential to the prior judgment, even if the issue recurs
in the context of a different claim." Taylor v. Sturgell, 553 U.S. 880, 892

8
(2008) (internal quotation marks omitted). Thus, issue preclusion will
apply to prevent the relitigation of matters that parties "have had a full and
fair opportunity to litigate." Id. (internal quotation marks omitted).
The federal court decision here concerned whether Officer Baca
was entitled to qualified imnumity, which involves two considerations:
(1) whether the "officer's conduct violated a constitutional right[,] and
(2) whether the right violated was "clearly established," such that the officer
was on notice the conduct was impermissible. Saucier v. Katz, 533 U.S. 194,
201 (2001), overruled in part by Pearson v. Callahan, 555 U.S. 223 (2009);
see also Pearson, 555 U.S. at 236 (providing a discretionary choice for courts
to choose which prong to analyze first "in light of the circumstances in the
particular case at hand"). Both prongs of this qualified-immunity inquiry
must be met for the plaintiff to proceed in litigating against the officer.
Judge Mahan resolved both prongs, finding that there was no violation of a
constitutional right and that the right allegedly violated was not clearly
established. Thus, the judgment entered by Judge Mahan was resolved on
the merits. However, the judgment did not become final at that time
because it was appealed to the Ninth Circuit, which affirmed the judgment
only on the ground that the right was not clearly established.
Thus, the issue before us is whether the first prong of the
qualified-immunity inquiry, which concerned Officer Baca's reasonableness
under the Fourth Amendment, was necessarily decided in a final judgment
on the merits where the federal appellate court affirmed the judgment only
on the second prong. Because the underlying judgment in this matter was
a federal court decision, we look to federal precedent to determine how
federal courts apply issue preclusion in this context. See Garcia v.
Prudential Ins. Co. of Am., 129 Nev. 15, 20, 293 P.3d 869, 872 (2013).

SUPREME COURT
OF
NEVADA
9
10) 1947A 4.;W,
Federal appellate courts in a similar procedural posture that we face today
have applied the Restatement (Second) of Judgments section 27 comment o
(1982) to answer whether an issue is barred. See, e.g., Dow Chem. v. U.S.
Envtl. Prot. Agency, 832 F.2d 319, 323 (5th Cir. 1987) (The federal
decisions agree that once an appellate court has affirmed on one ground and
passed over another, preclusion does not attach to the ground omitted from
its decision.'" (quoting 18 Charles Alan Wright et al., Federal Practice &
Procedure § 4421 (1981)) (citing Restatement (Second) of Judgments § 27
cmt. o)); see also Fairbrook Leasing, Inc. v. Mesaba Aviation, Inc., 519 F.3d
421, 428 (8th Cir. 2008) (relying on Restatement (Second) of Judgments
§ 27 cmt. o); Masco Corp. v. United States, 303 F.3d 1316, 1329-31 (Fed. Cir.
2002) (applying the Restatement (Second) of Judgments § 27 cmt. o).
The Restatement's view on finality is that, "filf the judgment of
the court of first instance was based on a determination of two issues, either
of which standing independently would be sufficient to support the result,"
and "the appellate court upholds one of these determinations as sufficient
and refuses to consider whether or not the other is sufficient and
accordingly affirms the judgment, the judgment is conclusive as to the first
determination." Restatement (Second) of Judgments § 27 cmt. o (1982).
This makes sense because only one issue has been finally decided.
Furthermore, "[t]his result is supported by the fact that the appellate choice
of grounds for decision has made unavailable appellate review of the
alternative grounds," and therefore, courts should not give this alternative
ground issue-preclusive effect. 18 Charles Alan Wright et al., Federal
Practice & Procedure § 4421 (3d ed. 2016). Thus, we apply comment o to
the present case and hold that Judge Mahan's determination as to the
reasonableness of Officer Baca's actions is not entitled to preclusive effect.

SUPREME COURT
OF
NEVADA

10
(0) l94A 426WPI.

111•1111
Officer Baca argues that we should not "limit issue preclusion
to the rulings explicitly addressed in an unpublished memorandum
disposition," as Paulos had a full and fair opportunity to challenge every
aspect of Judge Mahan's order. We disagree. The Restatement's issue-
preclusion rule does not distinguish between published or unpublished
dispositions. Furthermore, it is clear that the Ninth Circuit expressly chose
to resolve only the second prong of the qualified-immunity inquiry and
affirmed Judge Mahan's order because the law was not clearly established;
the court did not resolve—either explicitly or implicitly—whether the
officer's conduct was unreasonable, such that it amounted to excessive force.
Paulos v. FCH1, LLC, 685 F. App'x 581, 582 (9th Cir. 2017). Because the
Ninth Circuit was silent on whether Officer Baca violated Paulos's
constitutional rights, we conclude that issue was not necessarily decided in
a final judgment. Accordingly, the district court erred when it found that
Judge Mahan's decision concerning whether the officer's conduct was
unreasonable and violated a constitutional right had issue preclusive effect
for Paulos's state negligence claim where she argued Officer Baca acted
unreasonably. Thus, we reverse the district court's grant of summary
judgment to Officer Baca and remand for further proceedings.2

2Pau1os also argues that the district court erred in finding that the

issue of reasonableness under the Fourth Amendment is identical to
reasonableness under Nevada's negligence law. Though the district court
did not cite any law for its conclusion, LVMPD placed particular reliance on
Belch v. Las Vegas Metro. Police Dep't, No. 2:10-CV-00201-GMN-VCF, 2012
WL 4610803, at *11 (D. Nev. Sept. 30, 2012), in arguing that reasonableness
is the same under both the Fourth Amendment and Nevada negligence law.
However, we note that the holding in Belch has been called into question by
more recent caselaw. See Correa v. Las Vegas Metro. Police Dep't, No. 2:16-
CV-01852-JAD-NJK, 2019 WL 1639932, at *4-6 (D. Nev. Apr. 15, 2019)

SUPREME COURT
OF
NEVADA

11
(0) 1947A
V.
Paulos next argues the district court erred in granting LVMPD
summary judgment on her negligent hiring, training, and supervision claim
because it could not rely on Nevada's discretionary immunity doctrine. We
disagree. NRS 41.032(2) states in relevant part that no action shall be
brought:
[blased upon the exercise or performance or the
failure to exercise or perform a discretionary
function or duty on the part of the State or any of
its agencies or political subdivisions or of any
officer, employee or immune contractor of any of
these, whether or not the discretion involved is
abused.
We adopted the Berkovitz-Gaubert test enunciated by the United States
Supreme Court for determining whether acts fall within the scope of
discretionary-act immunity. Martinez v. Maruszczak, 123 Nev. 433, 446-47,
168 P.3d 720, 729 (2007); see also United States v. Gaubert, 499 U.S. 315,
325 (1991); Berkovitz v. United States, 486 U.S. 531, 536-37 (1998). To give
rise to discretionary-act immunity, the act "must (1) involve an element of
individual judgment or choice and (2) be based on considerations of social,
economic, or political policy." Martinez, 123 Nev. at 446-47, 168 P.3d at 729.
Additionally, Martinez provided that "decisions at all levels of government,
including frequent or routine decisions, may be protected by discretionary-

(explaining that Belch "looked to California law and a Ninth Circuit case
applying Washington law" to find Fourth Amendment reasonableness was
identical to reasonableness under Nevada negligence law, but the Ninth
Circuit recently explained that the "reasonable care" standard to determine
police liability in California is "distince from the reasonableness standard
under the Fourth Amendment). Nevertheless, because we find that the
district court erred in giving preclusive effect to the reasonableness
determination, we need not reach Paulos's question presented here.
SUPREME COURT
OF
NEVADA

12
(co 1.947A
act immunity, if the decisions require analysis of government policy
concerns." Id. at 447, 168 P.3d at 729.
In determining whether LVMPD is entitled to discretionary-act
immunity from negligent hiring, training, and supervision claims, we look
to federal analogues. See id. at 444, 168 P.3d at 727 (noting that
"discretionary-function immunity under NRS 41.032(2) . . . mirrors the
Federal Torts Claims Act" and should be analyzed in the same way). The
Ninth Circuit and other federal courts "have held that decisions relating to
the hiring, training, and supervision of employees usually involve policy
judgments of the type Congress intended the discretionary function
exception to shield." Vickers v. United States, 228 F.3d 944, 950 (9th Cir.
2000) (citing decisions from the First, Eighth, Ninth, Tenth, and D.C.
Circuit Courts of Appeals). For LVMPD "to come within the discretionary
function exception, the challenged decision need not actually be grounded
in policy considerations so long as it is, by its nature, susceptible to a policy
analysis." Id. at 950-51 (internal quotation marks omitted); see also
Gaubert, 499 U.S. at 325 ("The focus of the inquiry is not on the agent's
subjective intent in exercising the discretion conferred by statute or
regulation, but on the nature of the actions taken and on whether they are
susceptible to policy analysis.").
Here, the district court in its initial order relied on federal cases
that recognize Nevada's bar to negligent hiring, training, and supervision
claims. See Neal-Lomax v. Las Vegas Metro. Police Dep't, 574 F. Supp. 2d
1170, 1192 (D. Nev. 2008), affd, 371 F. App'x 752 (9th Cir. 2010); Beckwith
v. Pool, No. 2:13-CV-125-JCM (NJK), 2013 WL 3049070, at *5-6 (D. Nev.
June 17, 2013). In its order granting LVMPD's motion to reconsider, the
district court granted summary judgment without providing its reasoning.

SUPREME COURT
OF
NEVADA

13
Oì 1947A
Despite this omission, our evaluation shows the district court did not err.
First, LVMPD's decision to hire and train Officer Baca involved an element
of choice under prong one of the Berkovitz-Gaubert test. See Vickers, 228
F.3d at 950. Second, a decision on whether to train officers about getting
suspects off the hot asphalt during summer months once it is reasonably
safe to do so is subject to policy analysis, thus meeting prong two of the test.
See id. We therefore affirm summary judgment for LVMPD.3
VI.
Finally, Paulos argues that the district court erred in granting
summary judgment to FCH1 and Houston, as they were not state actors
entitled to immunity and no court has addressed whether they were
negligent or engaged in false imprisonment. Therefore, she argues, it was
error for the district court to dismiss her claims against them simply based
on their joinder to Officer Baca and LVMPD's motion for summary

3Pau1os cites several cases from the United States district court for
the district of Nevada that have concluded LVMPD is not entitled to
discretionary-act immunity for negligent training and supervision of
officers. See, e.g., Wheeler v. City of Henderson, No. 2:15-CV-1772-JCM
(CWH), 2017 WL 2692405, at *5 (D. Nev. June 22, 2017) (finding that "the
training and supervision of officers is not a discretionary function, but
rather an operational function for which [LVMPD] does not enjoy
immunity" (internal quotation marks omitted)); Herrera v. Las Vegas Metro.
Police Dep't, 298 F. Supp. 2d 1043, 1054-55 (D. Nev. 2004) (concluding
LVMPD does not enjoy discretionary-act immunity in its training and
supervision decisions because "[it] assumes the obligation to ensure that its
employees do not pose an unreasonable safety risk to those with whom they
come into contact"); Perrin v. Gentner, 177 F. Supp. 2d 1115, 1125-26 (D.
Nev. 2001) (reasoning LVMPD was not entitled to discretionary-act
immunity because its training and supervision of officers were operational
functions). However, these cases relied on pre-Martinez law and do not alter
our analysis and conclusion.

SUPREME COURT
OF
NEVADA
14
(0) 1447A .set.
judgment. We agree. We have previously recognized that governmental
immunity does not apply to non-state actors. See, e.g., Grosjean v. Imperial
Palace, Inc., 125 Nev. 349, 361, 212 P.3d 1068, 1077 (2009) (determining
that in a 42 U.S.C. § 1983 action, qualified immunity will not apply to non-
state actors but "Mlle good-faith defense may apply to private parties who
become liable solely because of their compliance with government agents'
request or in attempting to comply with the law"). Further, FCH1 and
Houston have failed to identify, and the record does not reveal, any analysis
by the district court of the claims of negligence or false imprisonment
against them.4 Rather, the district court permitted FCH1 and Houston to
join Officer Baca and LVMPD's motion for summary judgment and, without
explanation, granted FCH1 and Houston summary judgment dismissing
Paulos negligence and false imprisonment claims. Because the district
court's grant of summary judgment is silent as to any findings of fact or
conclusions of law on these issues, we are unable to conclude that the

41n their motion to join Officer Baca and LVMPD's summary
judgment motion and on appeal, FCH1 and Houston argue that NRS
171.132 (providing that "[alny person making an arrest may orally summon
as many persons as the person making the arrest deems necessary to aid
him or her therein") provides• them with an affirmative defense for good-
faith immunity. However, as Paulos argues, FCH1 and Houston failed to
assert this defense in their answer and did not request leave to amend. An
affirmative defense that is not pleaded in the answer is waived. Clark Cty.
Sch. Dist. v. Richardson Constr., Inc., 123 Nev. 382, 395 n.25, 168 P.3d 87,
96 n.25 (2007); NRCP 8(c)(1) (stating that "a party must affirmatively state
any avoidance or affirmative defense" and listing, without limitation, such
affirmative defenses). Therefore, "[a] point not [properly] urged in the trial
court, unless it goes to the jurisdiction of that court, is deemed to have been
waived and will not be considered on appeal." Old Aztec Mine, Inc. v. Brown,
97 Nev. 49, 52, 623 P.2d 981, 983 (1981).

15
decision was legally correct. Accordingly, we reverse the grant of summary
judgment to FCH1 and Houston and remand for further proceedings.
VII.
In conclusion, the district court erred in granting summary
judgment to Officer Baca based on issue preclusion, and we reverse and
remand as to the claim against him. We affirm the district court's grant of
summary judgment to LVMPD based on discretionary immunity.
Additionally, we reverse and remand the grant of summary judgment to
FCH1 and Houston. Accordingly, we affirm in part, reverse in part, and
remand this matter to the district court for further proceedings consistent
with this opinion.

Hardesty

We concur:

, C.J.
ering

A•140400
Parraguirre Stiglich

4odi
Cadish Silver

SUPREME COURT
Of
NEVADA

(0) I947A 441g5E.
16

.o- Jat• 12.!:

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4503121. Public record. Not legal advice.