Money Had and Recieved

Elements

"An action for money had and received can be maintained whenever one man has received or obtained the possession of the money of another, which he ought in equity and good conscience to pay over. This proposition is elementary. There need be no privity between the parties, or any promise to pay, other than that which results or is implied from one man's having another's money, which he has no right conscientiously to retain. In such case the equitable principle upon which the action is founded implies the contract and the promise. When the fact is proved that he has the money, if he cannot show a legal or equitable ground for retaining it the law creates the privity and the promise. 2 Chitty, Cont. 899 (11th Am. Ed.); Mason v. Waite, 17 Mass. 560; Hall v. Marston (17 Mass. 575) Id. 574; Knapp v. Hobbs, 50 N. H. 476; Eagle Bank v. Smith, 5 Conn. 71 (13 Am. Dec. 37). It is not necessary that the defendant should have accepted the money under an agreement to hold it for the benefit of the plaintiff, or that the party from whom he received it intended it for the plaintiff's benefit. Neither is it necessary that the money received by the defendant should have been an exact and specific sum, belonging exclusively to plaintiff, and entirely separate and distinct from any other moneys. We have found no case which lays down any such narrow rule. Allanson v. Atkinson, 1 M. & S. 583; Heartt v. Chipman, 2 Aiken [Vt.] 162."
Kondas v. Washoe County Bank, 51 Nev. 134, 271 P.2 465, 466 (Nev. 1928).

Example Cases

Proof

Damages

Defenses

Misc

• Tax Refund

Actions to recover taxes paid are equitable in nature, and the burden of proof is on the taxpayer to show that the taxing body holds money that in equity and good conscience it has no right to retain. El Tejon Cattle Co. v. County of San Diego, 252 Cal.App.2d 449, 60 Cal.Rptr. 586, 595 (Ct.App.1967); Hawes v. Smith, 120 Ga.App. 158, 169 S.E.2d 823, 824 (Ga.App.1969). "Such would be accomplished by establishing the plaintiff's right to the money and the defendant's possession." 169 S.E.2d at 824 (emphasis in original). See Estate of Kasishke v. Oklahoma Tax Comm'n, 541 P.2d 848, 852 (Okl.1975) (a claim for refund is one for money had and received, and taxpayer must establish that he has in fact overpaid his tax to recover).
[ State v. Obexer & Son, Inc., 99 Nev. 233, 237, 660 P.2d 981, 984 (Nev. 1983).]

• Over-payment of debt

As to the application of such principles in an appropriate case no doubt exists. While certain equity principles are involved, this is not an equity case, but a suit at law for money had and received.
[1] It is a well-established rule of law, subject to certain qualifications not material here, that money paid in excess of the amount due through a mutual mistake of fact may be recovered. 30 Cyc. 1316.
The general rule was stated by this court at a very early date in Travis v. Epstein et al., 1 Nev. 116.
Mr. Williston in his excellent work on Contracts at volume 3, § 1574, states the rule in the following language:
"One who by error in computation, or by mistake of any fact, pays a real or supposed creditor more than is his due, or pays a debt previously discharged, may recover the overpayment; and generally speaking, money paid over under a mutual mistake of an essential fact, or under a unilateral mistake as to such a fact where the defendant has parted with nothing and the plaintiff has not received an expected return, may be recovered."
Smart v. Valencia, 50 Nev. 359, 261 P. 655 (Nev. 1927).

 

Misappropriation of Trade Secrets

Elements

A plaintiff must prove

1. a valuable trade secret;
2. misappropriation of the trade secret through use, disclosure, or nondisclosure of use of the trade secret; and
3. the misappropriation is wrongful because it was made in breach of an express or implied contract or by a party with a duty not to disclose.

Frantz v. Johnson, 116 Nev. 455, 466, 999 P.2d 351, 358 (2000).

Kaldi v. Farmers Ins. Exchange, 117 Nev. 273, 283-84, 21 P.3d 16, 23 (2001).

See also Trade Secrets Uniform Act, which includes relevant definitions as well as criminal penalties and other relief. NRS 600A.

Example Cases

Factors to be considered in determining whether a corporate information is a trade secret include the following:

1. the extent to which the information is known outside of the business and the ease or difficulty with which the acquired information could be properly acquired by others;
2. whether the information was confidential or secret;
3. the extent and manner in which the employer guarded the secrecy of the information; and
4. the former employee's knowledge of customer's buying habits and other customer data and whether this information is known by the employer's competitors.

Frantz v. Johnson, 116 Nev. 455, 467, 999 P.2d 351, 358-59 (2000).

Not every customer and pricing list will be protected as a trade secret.

Frantz v. Johnson, 116 Nev. 455, 467, 999 P.2d 351, 358-59 (2000) (citing Neal v. Griepentrog, 108 Nev. 660, 666, 837 P.2d 432, 435 (1992)).

Direct evidence of harm by competitors through unfair and illegal business tactics is not necessary; indirect circumstantial evidence is enough.

Frantz v. Johnson, 116 Nev. 455, 467, 999 P.2d 351, 358-59 (2000). Whitehead v. Nev. Com'n on Judicial Discipline, 110 Nev. 874, 904 n. 6, 878 P.2d 913, 932 (1994).

The plain language of NRS 600A.090 precludes a plaintiff from bringing a tort or restitutionary action "based upon" misappropriation of a trade secret beyond that provided by the UTSA. In interpreting NRS 600A.090, a federal district court has held that a plaintiff's claims for unjust enrichment and unfair competition were precluded by the UTSA since these two claims were duplicative of plaintiff's claim for misappropriation of trade secrets. A former employee's use of confidential information or trade secrets of his employer in violation of a contractual or fiduciary duty is not protected by the First Amendment.

Frantz v. Johnson, 116 Nev. 455, 467, 999 P.2d 351, 358-59 (2000).

Misc.

 

 

Legal Malpractice

Elements

Example Cases

Proof

Damages

Defenses

Misc

 

Medical Malpractice

Elements

Example Cases

Proof

Damages

Defenses

Misc

 

False Light

Elements

Example Cases

Proof

Damages

Defenses

Misc

 

Unreasonable Publicity Given to Private Facts

Elements

Example Cases

Proof

Damages

Defenses

Misc

 

Right of Publicity

Elements

See generall NRS 597.770 - NRS 597.810

NRS 597.770(1)

"Commercial use" includes the use of the name, voice, signature, photograph or likeness of a person on or in any product, merchandise or goods or for the purposes of advertising, selling or soliciting the purchase of any product, merchandise, goods or service.

NRS 597.810 Remedies for unauthorized commercial use; liability of owner or employee of medium used for advertising.

1. Any commercial use of the name, voice, signature, photograph or likeness of another by a person, firm or corporation without first having obtained written consent for the use is subject to:

(a) Injunctive relief to prevent or restrain the unauthorized use; and

(b) An action at law for any injuries sustained by reason of the unauthorized use. In such a suit, the plaintiff may recover:

(1) Actual damages, but not less than $750; and

(2) Exemplary or punitive damages, if the trier of fact finds that the defendant knowingly made use of the name, voice, signature, photograph or likeness of another person without the consent required by NRS 597.790.

2. No owner or employee of any medium used for advertising is liable pursuant to this section for any unauthorized commercial use of a person’s name, voice, signature, photograph or likeness unless it is established that the owner or employee had actual knowledge of the unauthorized use.

Example Cases

Proof

Damages

• $750 minimum damages for entire tort, not for each third party that views the misappropriation

The Nevada statute has not limited the cause of action to celebrities, but the damages recoverable under NRS 597.810 are: "(1) Actual damages, but not less than $ 750; and (2) Exemplary or punitive damages, . . ." Sanchez argues that she needs the patient list because she is entitled to $ 750 for each of Hetter's patients who saw her picture. There is nothing in the statute or legislative history to suggest that this is a correct interpretation. It seems clear that what the legislature intended was to allow plaintiffs a minimum of $ 750 in damages even if no actual damages could be proven in order to discourage such appropriation. This statute provides a complete and exclusive remedy for the right of publicity tort. PETA, 110 Nev. at , P.2d at . Restitution is not available under this statute as Sanchez's damages would be limited to the commercial value of the use of her likeness, or what she could have received for sale of her before-and-after pictures. Thus, Hetter's patient information and tax return are irrelevant to the issue of compensatory damages in this action.

Hetter v. District Court, 110 Nev. 513, 519 (Nev. 1994)

Defenses

Misc

Gowen's tenth cause of action alleges that the Tiltware Defendants violated her right of publicity under NRS 597.810. NRS 597.810 prohibits "[a]ny commercial use of the name, voice, signature, photograph or likeness of another by a person, firm or corporation without first having obtained written consent for the use . . . ." NRS 597.810 (emphasis added). In her First Amended Complaint, however, Gowen admits that she authorized the Tiltware Defendants to use her likeness. (# 56 at P 74(c) ("Plaintiff permitted Defendants to use her likeness [*35] . . . ."). Based upon this admission, Gowen cannot plead a right of publicity claim because that claim requires that the Tiltware Defendants used her likeness without Gowen's consent. See American Title Ins. Co. v. Lacelaw Corp., 861 F.2d 224, 226 (9th Cir. 1988) ("Factual assertions in pleadings and pretrial orders, unless amended, are considered judicial admissions conclusively binding on the party who made them.").

Gowen v. Tiltware LLC, Case No. 2:08-cv-01581-RCJ-RJJ, 2009 U.S. Dist. LEXIS 43970 (D. Nev. 2009)

  Appropriation

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Elements

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Example Cases

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People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269 (Nev. 1995).

 

Proof

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Damages

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Defenses

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Misc

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Intrusion Upon Name or Likeness of Another

There are two types of claims Nevada (aside from identity theft) for the intrusion upon the name or likeness of another. The first, appropriation, is for unfamous ordinary people. The second, the right of publicity, if for famous or celebrated people. As the Nevada Supreme Court explained

As said, in the case of a private person, the invasion of privacy resulting from misuse or misappropriation of that person's name or identity is a personal injury, an injury that is redressable by general damages for the mental anguish and embarrassment suffered by reason of the unwanted public use of the private person's name. When, however, the name of a famous or celebrated person is used unauthorizedly, that person's main concern is not with bruised feelings, but rather, with the commercial loss inherent in the use by another of the celebrated name or identity. The commercial or property interest that celebrities have in the use of their names and identities is protected under what has been termed the "right of publicity."

There is a certain reciprocity between the two kinds of interests, personal and proprietary; and, accordingly, the more the aspects of one tort are present, the less likely are the aspects of the other tort to be present. The more obscure the plaintiffs are, the less commercial value their names have and the more such plaintiffs will be seeking to redress personal interests in privacy in a common law appropriation action, and not commercial or property interests in their name or likeness as a claimed violation of a right of publicity. The more famous and celebrated 1284 the plaintiffs, the less injury is likely to be claimed to their privacy interests, their interest in being "left alone," because their names and likenesses already have wide recognition and are not appropriate subjects for invasions of personal privacy. Generally speaking, a private person will be seeking recovery for the appropriation tort, and a celebrity will be recovering for the right of publicity tort. A celebrity, whose identity, by definition, is well known, will not ordinarily be heard to complain of "indignity," mental distress, or other personal injury resulting from the public use of his or her name; and consequently, such a person ordinarily will be suing for invasion of the right of publicity and will not likely be able to prosecute a successful claim under the common law privacy tort, appropriation of name or likeness.

People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 895 P.2d 1269, 1278 (Nev. 1995).

• Intrusion Upon Name or Likeness of Another
  • Appropriation
  • Right of Publicity

Unreasonable Intrusion Upon Seclusion of Another

To recover for the tort of intrusion, a plaintiff must prove the following elements:

1. an intentional intrusion (physical or otherwise);
2. on the solitude or seclusion of another;
3. that would be highly offensive to a reasonable person

Kuhn v. Account Control Technology, Inc., 865 F.Supp. 1443, 1448 (D.Nev.,1994); People for the Ethical Treatment of Animals (PETA) v. Berosini, 110 Nev. 78, 867 P.2d 1121, 1131 (1994).

Example Cases

Proof

Damages

Defenses

Misc

The Court finds that Kuhn had a reasonable expectation of privacy at her place of work during working hours that arises from a desire to be left alone to perform the duties for which she was hired.
Kuhn v. Account Control Technology, Inc., 865 F.Supp. 1443, 1449 (D.Nev.,1994).

The court considering whether a particular action is "highly offensive" should consider the following factors:

1. the degree of intrusion,
2. the context,
3. conduct and circumstances surrounding the intrusion; as well as the intruder's motives and objectives,
4. the setting into which he intrudes, and
5. expectations of those whose privacy is invaded

People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 111 Nev. 615, 895 P.2d 1269, 1274 n. 4 (1995)