                                                       131 Nev., Advance Opinion    72-
                           IN THE SUPREME COURT OF THE STATE OF NEVADA


                    SUSAN MARDIAN; AND LEONARD                           No. 62061
                    MARDIAN,
                    Appellants,
                    vs.
                    MICHAEL AND WENDY GREENBERG                               SEP 2 k 2015
                    FAMILY TRUST,                                             AG
                                                                         CL
                    Respondent.                                          BY
                                                                                       CLERK




                               Appeal from a district court judgment in a deficiency action.
                    Eighth Judicial District Court, Clark County; Gloria Sturman, Judge.
                               Reversed.


                    Hutchison & Steffen, LLC, and Michael K. Wall, Cami M. Perkins, and
                    Tanya S. Gaylord, Las Vegas,
                    for Appellants.

                    Fredrickson, Mazeika & Grant and Tomas V. Mazeika and Matthew D.
                    Peterdy, Las Vegas,
                    for Respondent.




                    BEFORE THE COURT EN BANC.

                                                    OPINION
                    By the Court, CHERRY, J.:
                                This is an appeal from a district court judgment in a real
                    property deficiency action. Appellants Susan and Leonard Mardian (the




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                 Mardians) guaranteed a promissory note executed in favor of respondents
                 Michael and Wendy Greenberg Family Trust (Greenberg), which was
                 secured by land in Arizona. The documents for the transaction were
                 executed in Nevada and contained a Nevada choice-of-law provision. After
                 default on the promissory note, Greenberg filed a complaint in Nevada and
                 then initiated a foreclosure sale in Arizona. Nine months later, Greenberg
                 sought a deficiency judgment on the guaranty through its initially filed
                 complaint. The district court found that, because the foreclosure was in
                 Arizona but the proceedings took place in Nevada, neither Nevada's nor
                 Arizona's time limit for seeking a deficiency judgment applied and the
                 deficiency action could proceed. We conclude that the district court erred
                 when it found that neither the Nevada nor the Arizona limitations period
                 applied. Because of the choice-of-law provision in the promissory note, the
                 contract is governed by Nevada law. We also conclude that the district
                 court erred when it denied appellants' motion to dismiss the complaint as
                 time-barred because the Greenbergs did not apply for a judgment within
                 the limitations period under NRS 40.455(1).

                                  FACTS AND PROCEDURAL HISTORY
                             In September 2007, Joshua Tree, LLC, executed a promissory
                 note in the amount of $1,100,000 in favor of respondent Michael and
                 Wendy Greenberg Family Trust (Greenberg). The note was secured by a
                 deed of trust encumbering 280 acres of undeveloped real property located
                 in Arizona, and also by personal guaranties, each for the full amount of
                 the note, from appellants Susan Mardian and Leonard Mardian. Both
                 guaranties stated that they were governed by Nevada law and waived the
                 one-action rule found in NRS 40.430.


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                            The parties agree that Joshua Tree defaulted on the loan and
                the guaranties were not upheld. In March 2009, Greenberg filed a
                complaint against the Mardians for breach of contract, breach of the
                implied covenant of good faith and fair dealing, and unjust enrichment.
                Greenberg then initiated foreclosure proceedings. A month later,
                Greenberg purchased the property at auction for $37,617. The property
                was then relisted for sale at $2,520,000. The price was subsequently
                reduced and, at the time this appeal was filed, the property had not yet
                sold.
                            In December 2009, the Mardians moved the district court to
                dismiss the underlying complaint for the entire amount due under the
                promissory note or, alternatively, for summary judgment because a
                deficiency application for the balance due on the loan was time-barred.
                Greenberg opposed the motion. At a hearing, the district court
                determined that it would not apply the limitations period in NRS 40.455
                because the property was located in Arizona and sold pursuant to Arizona
                law, not Nevada law. Therefore, the district court indicated, neither
                Arizona's nor Nevada's limitations period applied. The court later entered
                an order denying the Mardians' motion.
                            The Mardians again moved for summary judgment in January
                2012, which Greenberg opposed. At the hearing on that motion, a
                different district court judge stated that "the problem I have here is that
                we do have law of the case and we don't know why [the prior judge] ruled
                the way that she ruled, but it's her ruling." The district court then entered
                an order denying summary judgment, concluding that the motion for
                summary judgment was based on the same issues as the Mardians'
                previously denied motion.

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                                   Following a bench trial, the district court found that the
                       Mardians owed $1,279,224 under the promissory note and that the fair
                       market value of the property at the time of its sale was $350,000.1 Thus,
                       the court determined that adding interest to the default amount while
                       reducing it by the fair market value of the property resulted in a
                       deficiency totaling $929,224. Judgment was entered in Greenberg's favor
                       for that amount. The Mardians appealed.

                                                     DISCUSSION
                       Standard of review
                                   The Mardians argue that the statute of limitations applies
                       regardless of whether the foreclosure was conducted pursuant to NRS
                       107.080 or pursuant to foreign law. Greenberg argues that NRS 40.455
                       encompasses only judicial foreclosures under NRS 40.430 or nonjudicial
                       foreclosures under NRS 107.080. Greenberg asserts that because the
                       property was in Arizona, it could not utilize the NRS 40.430 foreclosure
                       process or the NRS Chapter 107 trustee's sale process and instead needed
                       to initiate separate proceedings in Arizona.
                                   Although a district court's order denying summary judgment
                       is not independently appealable, "where a party properly raises the issue
                       on appeal from the final judgment, this court will review the decision de
                       novo."   Cromer v. Wilson, 126 Nev. 106, 109, 225 P.3d 788, 790 (2010).
                       Summary judgment is proper only if, when considering the evidence "in a
                       light most favorable to the nonmoving party," no genuine issue of material
                       fact exists and the moving party is entitled to a judgment as a matter of
                       law. Wood v. Safeway, 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005).




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                             Issues of law, including statutory interpretation, are also
                 reviewed de novo.   Cromer, 126 Nev. at 109, 225 P.3d at 790. When a
                 statute's language is unambiguous, this court does not resort to the rules
                 of construction and will give that language its plain meaning.   Id. "[This
                 court has a duty to construe statutes as a whole, so that all provisions are
                 considered together and, to the extent practicable, reconciled and
                 harmonized." Id. at 110, 225 P.3d at 790. Generally, statutes should not
                 be interpreted to "render [[ language meaningless or superfluous."     In re
                 Parental Rights as to S.M.M.D., 128 Nev., Adv. Op. 2, 272 P.3d 126, 132
                 (2012) (internal quotations omitted). Moreover, "[wle presume that a
                 statute does not modify common law unless such intent is explicitly
                 stated." Branch Banking v. Windhaven & Tollway, LLC,         131 Nev., Adv.
                 Op. 20, 347 P.3d 1038, 1040 (2015).

                 Choice-of-law provision
                             While the arguments made by the parties focus on Nevada
                 law, the issue of whether the Arizona law should have been applied must
                 also be addressed. In this regard, Greenberg avers that it would not have
                 been appropriate for the district court to apply the Arizona limitation
                 period for foreclosures to the personal action commenced in Nevada
                 because the guaranties specify that they are governed by Nevada law. We
                 agree and conclude that because of the choice-of-law provision, Nevada
                 law—particularly Nevada's limitations period, see NRS 40.455(1)—applies
                 in this case. See Key Bank of Alaska v. Donnels, 106 Nev. 49, 52, 787 P.2d
                 382, 384 (1990) (concluding that where there was "no evidence or
                 argument. . . regarding bad faith or evasion of Nevada law, the provision
                 designating Alaska law in the promissory note [was] valid"). Having


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                 concluded that Nevada's deficiency statutes apply, we turn to the parties'
                 arguments concerning the deficiency application.

                 Application of NRS 40.455W'
                             In this case, the Mardians are the guarantors of Joshua Tree's
                 promissory note, which was held by Greenberg and which was secured by
                 the Arizona real property. Although Greenberg sued the Mardians on
                 their guaranties, we have previously held that Nevada's deficiency
                 judgment statutes are applicable to actions on guaranty contracts when
                 the underlying note is secured by real property. First Interstate Bank of
                 Nev. v. Shields, 102 Nev. 616, 621, 730 P.2d 429, 432 (1986). Thus, in
                 order to proceed against the Mardians on their guaranties, Greenberg was
                 required to comply with Nevada's deficiency statutes.
                             We first consider the parties' contentions regarding whether
                 NRS 40.455(1) permits deficiency judgments in Nevada when the property
                 foreclosed upon was in another state. NRS 40.455(1) provides:
                             Except as otherwise provided in subsection 3,
                             upon application of the judgment creditor or the
                             beneficiary of the deed of trust within 6 months
                             after the date of the foreclosure sale or the trustee's
                             sale held pursuant to NRS 107.080, respectively,
                             and after the required hearing, the court shall
                             award a deficiency judgment to the judgment
                             creditor or the beneficiary of the deed of trust. . . .




                       'The 2015 Legislature amended NRS 40.455 and related statutes.
                 S.B. 453, 78th Leg. (Nev. 2015) (effective Oct. 1, 2015). This appeal is
                 governed by the pre-amendment version of NRS 40.455, see NRS 40.455
                 (2009), and all references herein to NRS 40.455 are to the pre-amendment
                 version.

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                 NRS 40.455(1) (emphasis added). "NRS 40.455(1) is an anti-deficiency
                 statute that derogates from the common law, and this court construes
                 such provisions narrowly, in favor of deficiency judgments."         Branch
                 Banking, 131 Nev., Adv. Op. 20, 347 P.3d at 1041 (internal quotations
                 omitted).
                             In Branch Banking, we considered "whether NRS 40.455(1)
                 precludes a deficiency judgment when the beneficiary nonjudicially
                 forecloses upon property located in another state and the foreclosure is
                 conducted pursuant to that state's laws instead of NRS 107.080."      Id. at
                 1039. In that case, a note with a Nevada choice-of-law provision was
                 secured by real property in Texas     Id. After default, the lender sold the
                 property at a Texas nonjudicial foreclosure sale and then sought a
                 deficiency judgment in Nevada.      Id.   We concluded that NRS 40.455(1)
                 "does not. . . preclude[ ] deficiency judgments arising from nonjudicial
                 foreclosure sales held in another state." Id. at 1041.
                             In this case, it is unclear whether Greenberg proceeded via a
                 judicial or nonjudicial foreclosure sale against the Arizona property.
                 However, the distinction is irrelevant. We held in Branch Banking that a
                 lender who had proceeded via nonjudicial foreclosure in another state
                 could seek a deficiency judgment in Nevada under NRS 40.455(1). Id. We
                 also held in Branch Banking that "the foreclosure sale described [in NRS
                 40.455(1)] is a judicial foreclosure," and we further held that, as in the
                 nonjudicial context, NRS 40.455(1) does not contain limiting language
                 precluding deficiency judgments arising from judicial foreclosure sales
                 held in another state.   Id. ("NRS 40.455(1) . . . does not indicate that it
                 precludes deficiency judgments arising from nonjudicial foreclosure sales
                 held in another state."). Accordingly, NRS 40.455(1) is not a bar to

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                Greenberg seeking a deficiency judgment from the Mardians solely
                because Greenberg foreclosed on real property in Arizona.
                            Next, we turn to the Mardians' contention that NRS 40.455(1)
                required Greenberg to file an "application" for a deficiency judgment
                "within 6 months after the date of the foreclosure sale." We have
                previously addressed the six-month limitation period and what is required
                of an application for a deficiency judgment in Walters v. Eighth Judicial
                District Court, 127 Nev., Adv. Op. 66, 263 P.3d 231 (2011), and Lavi v.
                Eighth Judicial District Court, 130 Nev., Adv. Op. 38, 325 P.3d 1265
                (2014).
                            In Walters, we considered the requisite form of a deficiency
                judgment application under NRS 40.455(1) and held that the motion for
                summary judgment constituted such an application "because it was made
                in writing, set forth in particularity the grounds for the application, and
                set forth the relief sought" in accordance with NRCP 7(b)(1). 2 Walters, 127
                Nev., Adv. Op. 66, 263 P.3d at 234. Because the lender filed its motion for
                summary judgment within six months of the foreclosure, we concluded
                that the lender was not time-barred from seeking a deficiency judgment.
                Id.




                      2NRCP   7(b)(1) states that

                            Fain application to the court for an order shall be
                            by motion which, unless made during a hearing or
                            trial, shall be made in writing, shall state with
                            particularity the grounds therefore, and shall set
                            forth the relief or order sought. The requirement
                            of writing is fulfilled if the motion is stated in a
                            written notice of the hearing of the motion.

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                            In Lavi, a lender filed suit against the guarantor after the
                borrower defaulted on the loan. 130 Nev., Adv. Op. 38, 325 P.3d at 1266.
                Almost one year after the foreclosure sale, the lender filed a motion for
                summary judgment to recover the deficiency. Id. at 1267. The guarantor
                responded by filing a countermotion for summary judgment, arguing that
                NRS 40.455 precluded the lender from any recovery because the lender did
                not apply for a deficiency judgment within six months of the foreclosure
                sale. Id. The district court concluded that the lender was not barred from
                seeking a deficiency judgment because the lender "sufficiently notified" the
                guarantor of its intent to pursue a judgment. Id. On appeal, we concluded
                that when the guarantor waived the one-action rule, the lender "was
                allowed to bring an action against [the guarantor] prior to completing the
                foreclosure on the secured property, but that waiver did not terminate the
                procedural requirements for asserting that separate action" within six
                months of the foreclosure sale. Id.
                            Here, the promissory note is governed by Nevada law, despite
                the location of the collateral property, so Greenberg was required to make
                its application pursuant to NRS 40.455(1). We conclude that it failed to
                comply with NRS 40.455(1) because it did not apply for a deficiency
                judgment within six months of the foreclosure sale. Therefore, the
                district court erred when it denied the Mardians' motion for summary




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                   judgment, and we reverse both the district court's judgment in favor of
                   Greenberg and the district court's order denying the Mardians' motion for
                   summary judgment. 3




                   We concur:


                                               , C.J.
                   Hardesty


                                                  J.
                    —C24ackasm.a
                   Parra guirre r


                                                  J.



                                                  J.




                   Gibbons




                         3 We  have considered respondent's other arguments and conclude
                   that they lack merit. Furthermore, we conclude that the parties'
                   remaining arguments are moot and decline to consider them. Personhood
                   Nev. v. Bristol, 126 Nev. 599, 602, 245 P.3d 572, 574 (2010) (indicating
                   that this court will generally not consider moot issues).


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