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


                  DEJA VU SHOWGIRLS OF LAS                               No. 59752
                  VEGAS, LLC, A NEVADA LIMITED
                  LIABILITY COMPANY, D/B/A DEJA VU
                  SHOWGIRLS; LITTLE DARLINGS OF
                  LAS VEGAS, D/B/A LITTLE                                      FILED
                  DARLINGS; K-KEL, INC., D/B/A
                  SPEARMINT RHINO GENTLEMEN'S                                   SEP 18 2014
                  CLUB; OLYMPUS GARDEN, INC.,                                  RAC E K. I. INDEMAN
                                                                               rte 0       9ABtrART
                  D/B/A OLYMPUS GARDEN; SHAC,                             BY
                                                                               HiS oPu:ryttlRK
                  LLC, D/B/A SAPPHIRE; THE POWER
                  COMPANY, INC., D/B/A CRAZY HORSE
                  TOO GENTLEMEN'S CLUB; AND D.                                         K
                  WESTWOOD, INC., D/B/A
                  TREASURES,
                  Appellants,
                  vs.
                  NEVADA DEPARTMENT OF
                  TAXATION; NEVADA TAX
                  COMMISSION; AND THE STATE OF
                  NEVADA BOARD OF EXAMINERS,
                  Respondents.



                              Appeal from a district court order dismissing a tax action for
                  failure to properly follow administrative procedures by filing a petition for
                  judicial review in the district court. Eighth Judicial District Court, Clark
                  County; Elizabeth Goff Gonzalez, Judge.
                              Affirmed.


                  Greenberg Traurig, LLP, and Mark E. Ferrario and Brandon E. Roos, Las
                  Vegas,
                  for Appellant SHAC, LLC.


SUPREME COURT
        OF
     NEVADA


(0) 1947A    (a                                                                            30--iLta
                Lambrose Brown and William H. Brown, Las Vegas; Shafer and
                Associates and Bradley J. Shafer, Lansing, Michigan,
                for Appellants Deja Vu Showgirls of Las Vegas, LLC; Little Darlings of
                Las Vegas; K-Kel, Inc.; Olympus Garden, Inc.; The Power Company, Inc.;
                and D. Westwood, Inc.

                Catherine Cortez Masto, Attorney General, David J. Pope and Blake A.
                Doerr, Senior Deputy Attorneys General, and Vivienne Rakowsky, Deputy
                Attorney General, Carson City,
                for Respondents.




                BEFORE THE COURT EN BANC.

                                                OPINION

                By the Court, DOUGLAS, J.:
                            In this opinion, we address whether the district court erred by
                concluding that, after exhausting their administrative remedies for
                seeking a refund under Nevada's Live Entertainment Tax (NLET),
                appellants were limited to a petition for judicial review, rather than a de
                novo action. We also consider whether the district court committed error
                by refusing to invoke judicial estoppel in lieu of granting respondents'
                motion to dismiss the underlying de novo action for lack of subject matter
                jurisdiction. We conclude that the district court properly limited
                appellants to a petition for judicial review and was correct in refusing to
                invoke judicial estoppel. Accordingly, we affirm the district court's
                decision.




SUPREME COURT
        OF
     NEVADA
                                                     2
(0) 1947A
                                             BACKGROUND
                            This appeal involves the same parties as the appeal in Deja Vu
                Showgirls v. State, Department of Taxation, 130 Nev.            ,   P.3d
                (Adv. Op. No. 73, September 18, 2014) (hereinafter Deja Vu II). However,
                unlike Deja Vu II, which primarily addresses whether NLET violates the
                First Amendment to the United States Constitution, this appeal focuses
                on the procedural processes available to a claimant challenging an
                unfavorable decision regarding his or her tax refund request.
                            On April 18, 2006, appellants filed suit in the United States
                District Court for the District of Nevada seeking a declaration that NLET
                is facially unconstitutional, an injunction against its enforcement, and a
                refund for all taxes paid under the statute. The federal court dismissed
                that suit because appellants failed to show that Nevada's court and
                administrative systems deprived them of a plain, speedy, and efficient
                remedy.'
                            On December 19,2006, following the dismissal of their federal
                case, appellants filed a de novo action (Case 1) in the Eighth Judicial
                District Court seeking similar remedies to those sought in federal court,
                including declaratory and injunctive relief, damages, attorney fees, and
                costs. Appellants later amended their Case 1 complaint to include an as-
                applied constitutional challenge to NLET. While Case 1 was pending in
                district court, appellants K-Kel, Olympus Garden, SHAC, The Power


                      'The United States Court of Appeals for the Ninth Circuit later
                affirmed that dismissal.




SUPREME COURT
        OF
     NEVADA
                                                     3
(0) MA7A.
                 Company, and D. Westwood filed individual tax refund requests with the
                 Nevada Department of Taxation (the Department), arguing that NLET is
                 facially unconstitutional for violating the First Amendment. The
                 Department denied those refund requests on April 3, 2007, and the
                 Nevada Tax Commission (the Commission) affirmed the Department's
                 decision by written order on October 12, 2007.
                             On January 9, 2008, appellants filed a second de novo action
                 in the Eighth Judicial District Court challenging the administrative
                 denials of their refund requests. In this new action (Case 2), appellants
                 sought declaratory and injunctive relief, the refund of taxes paid, and
                 damages based on NLET's alleged facial unconstitutionality. Appellants
                 later amended their Case 2 complaint to include an as-applied
                 constitutional challenge to NLET—that issue having never been raised
                 during their administrative proceedings. Because of their similarities, the
                 district court consolidated the declaratory relief claims in Cases 1 and 2,
                 and coordinated the remaining issues in those cases.
                             Thereafter, on respondents' motion for partial summary
                 judgment, the district court limited Case 1 to appellants' facial
                 constitutional challenge to NLET and permanent injunction request, and
                 dismissed appellants' remaining Case 1 claims, including their as-applied
                 challenge. In that same order, the district court dismissed the entirety of
                 Case 2 for lack of subject matter jurisdiction because appellants failed to
                 follow proper procedure when they filed a de novo action in the district
                 court after the completion of their administrative proceedings, rather than




SUPREME COURT
        OF
     NEVADA
                                                      4
(0) 1947A    e
                filing a petition for judicial review as required by NRS 233B.130. This
                appeal challenging the district court's dismissal of Case 2 followed. 2


                                                DISCUSSION
                Nevada law required appellants to file a petition for judicial review
                           On appeal, appellants argue that the district court erred by
                dismissing their case for failure to file a petition for judicial review in line
                with the Nevada Administrative Procedure Act (APA) found in NRS
                Chapter 233B because their de novo action was properly brought in
                district court per NRS 368A.290. Respondents disagree, asserting that,
                when read together, the APA and NRS 368A.290 required appellants to
                challenge the denial of their refund request through a petition for judicial
                review and not the de novo action initiated below.
                             Whether a party must file a petition for judicial review when
                challenging a decision by the Commission that denies a refund-of-taxes-
                paid request under NLET is a question of statutory construction that we
                review de novo, see PERS v. Reno Newspapers, Inc., 129 Nev. „ 313
                P.3d 221, 223 (2013), and requires us to consider how the APA and NRS
                368A.290 relate.




                      2 Following   their Case 2 appeal, the district court resolved all of
                appellants' remaining Case 1 claims, and appellants subsequently
                appealed from that determination. Appellants' challenge to the resolution
                of their Case 1 claims is addressed in the companion case. Deja Vu II, 130
                Nev. , P.3d (Adv. Op. No. 73, September 18, 2014).




SUPREME COURT
        OF
     NEVADA
                                                        5
(0) 19,17A
                            In enacting the APA, the Legislature stated that the chapter's
                purpose is "to establish minimum procedural requirements for the
                regulation-making and adjudication procedure of all agencies. . . and for
                judicial review of both functions, except those agencies expressly exempted
                pursuant to the provisions of this chapter." NRS 233B.020(1). Neither the
                Department nor the Commission is exempted from the APA's purview.
                NRS 233B.039. In line with its purpose, the APA provides that a party
                aggrieved by a final agency decision in a contested case who is identified
                as a party of record by an agency in an administrative proceeding is
                entitled to review of that decision by filing a petition for judicial review in
                the appropriate court.    See NRS 233B.130(1)-(2). Moreover, the APA
                states that its provisions "are the exclusive means of judicial review of, or
                judicial action concerning, a final decision in a contested case involving an
                agency to which [NRS Chapter 233B] applies." NRS 233B.130(6).
                            It is undisputed that appellants are parties of record aggrieved
                by a final agency decision in a contested case, and that "fal decision of the
                Nevada Tax Commission is a final decision for the purposes of judicial
                review." NRS 360.245(5). Furthermore, we have construed NRS
                360.245(5) and NRS 233B.130(6) as meaning "that all final decisions by
                the Commission be subject to the provisions of NRS Chapter 233B."           S.
                Cal. Edison v. First Judicial Dist. Court, 127 Nev. „ 255 P.3d 231,
                235-36 (2011) (holding that a petition for judicial review is the sole remedy
                after a final decision by the Commission). Accordingly, absent explicit
                legislative direction to the contrary, the APA's procedures, including the
                requirement to file a petition for judicial review, apply to all final
                Commission decisions, including those addressing refund requests under
                NLET. See id.; NRS 233B.020; NRS 233B.130(6).
SUPREME COURT
     OF
   NEVADA


(0) 1947k ae,
                              Recognizing that a party aggrieved by a final Commission
                  decision is limited to a petition for judicial review, we now consider
                  whether the Legislature provided an exception to that rule in NLET's
                  relevant provision. NRS 368A.290 provides:
                                    1. Within 90 days after a final decision upon
                              a claim filed pursuant to this chapter is rendered
                              by:


                                     (b) The Nevada Tax Commission, the
                              claimant may bring an action against the [Nevada
                              Tax] Department on the grounds set forth in the
                              claim.
                                    2. An action brought pursuant to subsection
                              1 must be brought in a court of competent
                              jurisdiction in Carson City, the county of this
                              State where the claimant resides or maintains his
                              or her principal place of business or a county in
                              which any relevant proceedings were conducted by
                              the Board or the Department, for the recovery of
                              the whole or any part of the amount with respect
                              to which the claim has been disallowed.


                              A review of NRS 368A.290 makes clear that nothing in that
                  statute provides an exception to the express statutory requirement
                  identified in Edison that a tax claimant can seek review of a final
                  Commission decision only by filing a petition for judicial review under
                  NRS 233B.130. Edison, 127 Nev. at , 255 P.3d at 237. And contrary to
                  appellants' position, nothing in NRS 368A.290 indicates that the
                  Legislature intended to allow taxpayers seeking refunds under NLET to
                  file a de novo action, rather than a petition for judicial review.
                              Accordingly, the sole remedy for a taxpayer aggrieved by a
                  final decision from the Commission concerning a tax refund request under
SUPREME COURT
      OF
    NEVADA
                                                         7
(0) 1947T eigto
                      NRS Chapter 368A is to file a petition for judicial review pursuant to NRS
                      233B.130. Based on this determination, we conclude that the district
                      court did not err by determining that it lacked subject matter jurisdiction
                      to consider the de novo challenge below because NRS 368A.290 required
                      appellants to file a petition for judicial review. 3 See Edison, 127 Nev. at
                         , 255 P.3d at 233, 237; see also Kame v. Emp't Sec. Dep't, 105 Nev. 22,
                      25, 769 P.2d 66, 68 (1989) (stating that noncompliance with statutory
                      requirements for judicial review of an administrative decision divests a
                      court of jurisdiction and is grounds for dismissal). 4 Having made this
                      determination, we now consider whether judicial estoppel barred the
                      district court from dismissing appellants' action despite their failure to file
                      a petition for judicial review.


                            3Appellants'   contention that Edison cannot be applied to their de
                      novo action because the underlying case was active at the time this court
                      decided Edison lacks merit. See Leavitt v. Siems, 130 Nev. „ 330
                      P.3d 1, 5 (2014) (rejecting an argument that a decision issued after the
                      close of trial could not be applied to a party's case because "retroactivity is
                      the default rule in civil cases").

                            4With   regard to appellants Deja Vu and Little Darlings, the record
                      demonstrates that these parties failed to exhaust their administrative
                      remedies before filing the underlying de novo action. Thus, the district
                      court lacked subject matter jurisdiction over their claims and we
                      necessarily affirm the dismissal of these parties, albeit for reasons other
                      than those relied on by the district court. See Malecon Tobacco, L.L.C. v.
                      State ex. rel. Dep't of Taxation, 118 Nev. 837, 839, 59 P.3d 474, 475-76
                      (2002); see also Bongiovi v. Sullivan, 122 Nev. 556, 575 n.44, 138 P.3d 433,
                      447 n.44 (2006). Accordingly, we need not address arguments presented
                      by Deja Vu and Little Darlings.




SUPREME COURT
        OF
     NEVADA
                                                             8
(0) 1947A    4rjr.,
                The district court correctly declined to apply judicial estoppel
                            Judicial estoppel is an equitable doctrine used to protect the
                judiciary's integrity and is invoked by a court at its discretion. See NOLM,
                L.L.C. v. Cnty. of Clark, 120 Nev. 736, 743, 100 P.3d 658, 663 (2004).
                Whether judicial estoppel applies is a question of law that we review de
                novo. Id.
                            We have explained that judicial estoppel "should be applied
                only when a party's inconsistent position [arises] from intentional
                wrongdoing or an attempt to obtain an unfair advantage." Id. (alteration
                in original) (internal quotation omitted); see also Edison, 127 Nev. at ,
                255 P.3d at 237. Notably, judicial estoppel "does not preclude a change in
                position that is not intended to sabotage the judicial process." Edison, 127
                Nev. at , 255 P.3d at 237; NOLM, L.L.C., 120 Nev. at 743, 100 P.3d at
                663. Moreover, we have stated that
                            ffiudicial estoppel may apply when (1) the same
                            party has taken two positions; (2) the positions
                            were taken in judicial or quasi-judicial
                            administrative proceedings; (3) the party was
                            successful in asserting the first position . . . ; (4)
                            the two positions are totally inconsistent; and (5)
                            the first position was not taken as a result of
                            ignorance, fraud, or mistake.
                Edison, 127 Nev. at       , 255 P.3d at 237 (second alteration in original)
                (internal quotation omitted).
                            In Edison, despite concluding that a petition for judicial
                review constituted the taxpayer's sole remedy for challenging the denial of
                its refund request, we ordered the district court to permit a de novo action
                because judicial estoppel barred the Department from changing its



SUPREME COURT
        OF
     NEVADA
                                                       9
101 IY47A
                 position with respect to the taxpayer.    Id. at   , 255 P.3d at 237-38. In
                 that case, we recognized that the Department, both in the present and
                 past, took inconsistent positions in quasi-judicial proceedings regarding
                 the means of review available to a taxpayer wanting to challenge a refund
                 denial. Id. at , 255 P.3d at 237. Notably, in Edison, the Department
                 stated in its brief to the Commission that the taxpayer could file a de novo
                 action against the Department under NRS 372.680.        Id. Additionally, an
                 administrative law judge from the Department told the parties' counsel
                 that "Mn the event that this matter is appealed to district court, it will be
                 reviewed de novo and additional discovery will likely be allowed at that
                 time" Id. (alteration in original) (internal quotation omitted). Yet, in the
                 proceedings before this court, the Department reversed its position and
                 asserted that de novo review was unavailable to challenge the
                 Commission's denial of a refund request.       Id. at , 255 P.3d at 234.
                 Based on those facts, we concluded that judicial estoppel applied because
                 "it would be highly inequitable to. . . allow the Department to change its
                 position," and therefore, ordered the court to grant the taxpayer a trial de
                 novo in district court. Id. at , 255 P.3d at 237-38.
                             Here, appellants contend that, under Edison, the district court
                 was required to apply judicial estoppel and preclude dismissal for failure
                 to file a petition for judicial review because respondents engaged in
                 inconsistent actions both generally as a department and specifically in this
                 case. In reply, respondents assert that appellants' case is distinguishable
                 from Edison on this issue because respondents never intentionally misled




SUPREME COURT
        OF
     NEVADA
                                                      10
(0) 1947A    e
                appellants into believing that their remedy was a trial de novo. We agree
                with respondents' position.
                             Unlike the taxpayer in Edison, appellants have failed to show
                that respondents made any statement during a judicial or quasi-judicial
                proceeding promising or providing for a reasonable probability that de
                novo review would be available to appellants. Instead, the record shows
                that as early as their federal district court case in 2006, respondents
                identified that a petition for judicial review was the appropriate remedy,
                citing to the APA. Appellants correctly note that respondents did not
                directly reference the APA in their answering brief to the Ninth Circuit,
                but said that a taxpayer may bring an action in court within 90 days of a
                refund denial by the Commission. While there is arguably some
                ambiguity as to the nature of the action that could be brought in court, i.e. ,
                whether it is a trial de novo or a petition for judicial review, respondents'
                representations do not amount to a misleading statement similar to those
                made in Edison.      Moreover, any confusion caused by that ambiguity in
                these circumstances cannot be characterized as "intentional wrongdoing or
                an attempt to obtain an unfair advantage." NOLM, L.L. C., 120 Nev. at
                743, 100 P.3d at 663 (internal quotation omitted). Accordingly, we
                conclude that the district court committed no error by refusing to invoke
                judicial estoppel.




SUPREME COURT
        OF
     NEVADA
                                                      11
(0) 1047A
                                     Based on the foregoing analysis, we affirm the district court's
                     decision to dismiss this case for lack of subject matter jurisdiction. 5


                                                                                           J'.




                                                        C.J.



                     Picketing


                     Har


                     Parrag-uirre.


                     Cherr


                      aitta


                              5Appellants
                                        also challenge the district court's dismissal of their as-
                     applied challenge to NLET in Case 2. Although the district court did not
                     explain why appellants' as-applied challenge was dismissed, the dismissal
                     was nonetheless proper because the district court lacked subject matter
                     jurisdiction over that challenge as appellants failed to raise this issue
                     during their administrative proceedings. See Deja Vu II, 130 Nev. ,
                     P.3d      (Adv. Op. No. 73, September 18, 2014). We have considered all of
                     appellants' other arguments and conclude that they lack merit.




SUPREME COURT
       OF
     NEVADA
                                                               12
10) 1947A 4447EFjo
