[00:00:07] Speaker 02:
Good morning, and may it please the court.

[00:00:08] Speaker 02:
My name is Ray Salian.

[00:00:09] Speaker 02:
I represent Appellant Kevin Long, and I'd like to reserve three minutes for rebuttal.

[00:00:15] Speaker 03:
Counsel, please be reminded that the time shown on the clock is your total time remaining.

[00:00:20] Speaker 03:
Thank you, Your Honor.

[00:00:21] Speaker 02:
The district court's order granting summary judgment should be reversed, and the case should be remanded for further proceedings.

[00:00:27] Speaker 02:
The court below entered a judgment of over $8 million against Mr. Long without a trial, despite the fact that he introduced mostly unrebutted testimony that negated the elements of MGM's claims and established facts sufficient to support his own defenses.

[00:00:45] Speaker 02:
Mr. Long raised a genuine issue of material fact over whether he actually executed the casino markers on which MGM bases his claims, its claims.

[00:00:56] Speaker 02:
This is independent of his intoxication defense and is on its own sufficient to have required the court to allow the case to go to trial.

[00:01:04] Speaker 03:
Counsel, what was the evidence that he did not execute the markers?

[00:01:09] Speaker 02:
Well, I'd point to at least five examples from the record, Your Honor.

[00:01:15] Speaker 03:
First, the markers were dated two years after Mr.- Point us to the- well, the fact that they were dated later does not raise a material issue.

[00:01:25] Speaker 03:
In fact, if he in fact allowed the hotel to date the markers whenever they were presented for payment.

[00:01:32] Speaker 03:
Would you agree?

[00:01:33] Speaker 02:
I agree that he executed a document which allowed the hotel to leave the date and line blank in the casino markers.

[00:01:43] Speaker 02:
However, Mr. Long, in his declaration, affirmatively says, I dispute the authenticity and validity of the casino markers.

[00:01:50] Speaker 04:
He says, basically, didn't he make several

[00:01:53] Speaker 04:
payments on on the markers and in fact pay some of them off in full so if he disputed the authenticity what you know did he do that before making these payments your honor the with respect to the payments that mr. long made shortly after his visits to the hotels at that point

[00:02:12] Speaker 02:
At least within the record, it actually isn't clear whether Mr. Long was apprised of or knew what the total amount of debt MGM was claiming from him.

[00:02:22] Speaker 03:
That doesn't matter in terms of whether or not he disputed the authenticity of them.

[00:02:27] Speaker 03:
So is it your argument that he only disputed the authenticity once he realized how much

[00:02:34] Speaker 03:
MGM was requesting to be repaid?

[00:02:37] Speaker 02:
Well, the actual markers, the physical markers that MGM is using to base its claims, they weren't actually presented to him.

[00:02:47] Speaker 02:
There's no evidence that he was actually shown these markers until MGM's motion for summary judgment.

[00:02:53] Speaker 02:
So the only communications that we actually have in the record

[00:02:57] Speaker 02:
are letters that MGM sent Mr. Long several years after the visits and questions.

[00:03:04] Speaker 02:
So before then, we have no idea what communications were taking place between the casino and Mr. Long.

[00:03:12] Speaker 02:
We don't know what was communicated to him.

[00:03:14] Speaker 02:
There was no reason to believe, at least from the record we have before us, that he was presented with a situation where he could have denied the authenticity of any markers.

[00:03:24] Speaker 02:
Now.

[00:03:26] Speaker 01:
Just a second.

[00:03:26] Speaker 01:
I'm looking at his affidavit, and he says, I do not dispute that I executed the markers.

[00:03:33] Speaker 01:
He says, I dispute the amount, and I dispute the fact that they're enforceable because I was intoxicated when I signed them.

[00:03:41] Speaker 01:
I think, and I believe this is a theory.

[00:03:44] Speaker 01:
The specifics is that I do not dispute I executed the markers.

[00:03:47] Speaker 02:
That's right, Your Honor, and I think a reasonable juror could conclude that he was in Vegas, he was plied with alcohol, he has some sense that he probably executed and agreed to some gambling debts, and he paid them off.

[00:04:03] Speaker 02:
I thought you started off by saying he disputed whether he even signed the markers.

[00:04:07] Speaker 02:
He does dispute that he signed the two disputed markers that are at issue in this case, Your Honor.

[00:04:14] Speaker 02:
Sorry, Your Honor.

[00:04:16] Speaker 03:
No, go ahead.

[00:04:17] Speaker 02:
He states that on page 80 of the excerpts of record he says,

[00:04:26] Speaker 02:
He says that he's examined the instruments produced as part of MGM's motion and dispute the validity and authenticity of those instruments as I was not present in Las Vegas on the days those instruments are dated.

[00:04:41] Speaker 03:
But that is the question of him giving the MGM permission to date them at the time they were going to be presented.

[00:04:47] Speaker 03:
So that's a different issue.

[00:04:51] Speaker 03:
in terms of whether or not he challenges the fact that he executed them.

[00:04:56] Speaker 02:
If I could quickly respond to that issue, Your Honor.

[00:04:59] Speaker 02:
So it is true, and we're not disputing, that MGM had the right to leave the dateline blank, and it had the legal right and statutory right to fill in that date later.

[00:05:11] Speaker 02:
So that's correct.

[00:05:13] Speaker 02:
But the point is, even if they're allowed to do that, that doesn't establish, as a matter of factual certainty, that he, in fact, was present and did approve those markers, Your Honor.

[00:05:27] Speaker 02:
So an example I would, an analogous- And that takes us back.

[00:05:31] Speaker 03:
to what Judge Malloy read, that he doesn't dispute that he executed the markers.

[00:05:35] Speaker 02:
He doesn't dispute that he executed casino markers with MGM.

[00:05:39] Speaker 02:
So he doesn't dispute that he incurred some debts related to gambling.

[00:05:45] Speaker 02:
But he does dispute the specific markers that are at issue here.

[00:05:50] Speaker 01:
How did he arrive at the $1,864,675 number, which

[00:05:56] Speaker 01:
happened to cover all the small markers plus one of the markers that's in dispute.

[00:06:01] Speaker 01:
How did he come up with that number?

[00:06:03] Speaker 02:
Your Honor, as I suggested earlier, we don't have any communications that conclusively establish what happened that resulted in these payments and these partial payments being made.

[00:06:15] Speaker 02:
It looks like part of it was he basically handed over casino chips before he left on his trip.

[00:06:21] Speaker 02:
And I think a reasonable juror could infer from the record that's present before the court

[00:06:26] Speaker 02:
that Mr. Long understood that he had incurred some debts, made some payments, and at some point realized, wait, maybe there's a disagreement here on the total amount of payments that he actually agreed to.

[00:06:42] Speaker 02:
Again, there's no indication that anyone communicated the amount that MGM was claiming he had agreed to pay until several years later in January 2021.

[00:06:55] Speaker 02:
So since we're at the summary judgment stage, while this panel has identified some factual questions that he might need to address in front of the fact finder, I think the inferences have to be drawn in his favor at this point.

[00:07:11] Speaker 02:
And that's what the district court in this case failed to do.

[00:07:17] Speaker 02:
Additionally, Your Honors, going back to the point of whether Mr. Long established sufficient facts to contest the validity of the markers, first of all, his denial in and of itself is sufficient.

[00:07:33] Speaker 02:
It's a statement from a person with personal knowledge.

[00:07:39] Speaker 02:
And that has to be credited in the non-movement's favor at the summary judgment stage.

[00:07:43] Speaker 02:
He states that he does not believe he would have executed markers for the amounts that MGM's claiming.

[00:07:51] Speaker 02:
Again, it's possible that a jury or fact finder might not find that credible, but the fact of the matter is their credibility determination has to be left to the fact finder and shouldn't have been left to the, done by the district court.

[00:08:06] Speaker 02:
He was given over a million dollars worth of complementary amenities, which kind of puts together a story here where Mr. Long was given copious amounts of alcohol to the point where he couldn't remember what happened the nights that he supposedly executed these markers.

[00:08:23] Speaker 02:
He knows for sure he was given some things for free.

[00:08:26] Speaker 02:
He knows that he incurred some gambling debts.

[00:08:28] Speaker 02:
But really, it had to be a finder of fact to determine exactly what happened

[00:08:34] Speaker 02:
with respect to the markers that MGM is now seeking to enforce.

[00:08:38] Speaker 04:
Why did Long wait until the response to the motion for summary judgment to raise the intoxication defense if that was a concern?

[00:08:48] Speaker 04:
Why wasn't it raised in 2021?

[00:08:52] Speaker 02:
Well, first of all, there was a very short period of time between when MGM first sent the letters to Mr. Long, and actually there's no evidence that he received or reviewed those letters, but the first communication that we have that communicated the total amount of the debt was in January 2021.

[00:09:12] Speaker 02:
A few months later, in

[00:09:14] Speaker 02:
I believe it's July 2021, they've already filed their complaint.

[00:09:20] Speaker 02:
So this is a matter of months.

[00:09:21] Speaker 02:
Now compare that to the amount of time it took MGM to realize that it believed that it had an unpaid debt.

[00:09:29] Speaker 02:
This trip happened in 2018, and then they wait until 2021 to actually send some sort of written communication indicating that he owes this amount of money.

[00:09:41] Speaker 03:
So there's a- Weren't they trying to collect in the interim?

[00:09:46] Speaker 02:
Well, there's nothing in the record that says that, Your Honor.

[00:09:48] Speaker 03:
I thought they presented the markers to his bank.

[00:09:51] Speaker 02:
They presented the markers to his bank during the same months that they were sending the letters to him.

[00:09:58] Speaker 02:
So if you look, the demand letters were sent in January and March of 2021.

[00:10:05] Speaker 02:
And I believe the markers were presented to the bank.

[00:10:09] Speaker 02:
I think it's February and March 2021.

[00:10:12] Speaker 02:
So it's around the same time when all of this activity is going on.

[00:10:16] Speaker 02:
So they're sending him letters and they're trying to get the money from his bank all around the same time, years after his trip.

[00:10:23] Speaker 02:
So at that point, this is a trip that's taken place years later.

[00:10:27] Speaker 02:
he's testified in an uncontradicted fashion that during this trip he was so intoxicated he can't even remember what happened.

[00:10:38] Speaker 04:
Is that asserted in his answer to the complaint filed in 2021?

[00:10:43] Speaker 02:
It's not in the answer, Your Honor.

[00:10:45] Speaker 02:
There are affirmative defenses listed, and other than that, there are just general denials of the allegations.

[00:10:51] Speaker 04:
Why not?

[00:10:52] Speaker 04:
Why is that not one of the affirmative defenses listed in 2021?

[00:10:55] Speaker 04:
Why is that not coming up until 2022?

[00:10:58] Speaker 02:
Well, the only response I have to that, Your Honor, is at that point, this was

[00:11:04] Speaker 02:
You know, we weren't trying to counsel.

[00:11:07] Speaker 02:
I'm not exactly sure what the discussions were at that time.

[00:11:09] Speaker 02:
But at that point, MGM in January made its demand, filed its lawsuit in July.

[00:11:17] Speaker 02:
At that point, I think it's reasonable to say that Mr. Long and his counsel were probably still undergoing an investigation.

[00:11:23] Speaker 02:
And I acknowledge that perhaps it would have been prudent to amend the answer to

[00:11:30] Speaker 02:
include a defense and spell out the intoxication issue.

[00:11:35] Speaker 02:
But there's no law that says that this is a defense that has to be included in the answer.

[00:11:40] Speaker 02:
More importantly, MGM never raised this as a problem.

[00:11:42] Speaker 02:
So if there was a procedural defect in the way that intoxication was raised,

[00:11:46] Speaker 02:
That should have been brought up in the lower court proceeding.

[00:11:50] Speaker 02:
And as we know, trial courts often grant leave to amend with liberality.

[00:11:55] Speaker 02:
So had this issue been brought up back then, there might have been a solution here where we would have simply seen an amended answer, and we would have seen more specific defenses.

[00:12:05] Speaker 02:
Instead, what MGM did was two months before the discovery cutoff, it files a motion for summary judgment.

[00:12:11] Speaker 02:
From what I can tell, it didn't even really take discovery.

[00:12:14] Speaker 01:
Doesn't, you know, file... Take discovery because your client refuses to sit for a deposition.

[00:12:20] Speaker 01:
That's right, Your Honor.

[00:12:20] Speaker 01:
Which gives rise to an independent grounds to affirm because MGM moved to strike as affidavit because he would not agree to be deposed.

[00:12:29] Speaker 02:
Well, Your Honor, I think that would, that doesn't provide an independent ground in this case because the lower court actually denied the motion to strike and the denial of the motion to strike would be reviewed under the abuse of discretion standards.

[00:12:40] Speaker 02:
So in this case, and there are additional problems,

[00:12:44] Speaker 02:
with the raising of the deposition as an issue here.

[00:12:50] Speaker 02:
And I see my time's about to run out, but I'm happy to answer additional questions.

[00:12:55] Speaker 02:
So the main problem with the deposition is, while there were meet and confer discussions where Mr. Long declined to appear for deposition,

[00:13:04] Speaker 02:
There was no attempt to compel a deposition.

[00:13:07] Speaker 02:
There was no motion for sanctions.

[00:13:10] Speaker 02:
Frankly, MGM just assumed that it could skip all of those steps and ask for a motion to strike, and that motion was denied.

[00:13:16] Speaker 02:
So there's no basis for the court at this point to revisit the court's exercise of discretion and essentially treat the motion to strike as having been granted.

[00:13:28] Speaker 02:
And unless the panel has other questions, I'd like to reserve the remainder of my time for rebuttal.

[00:13:44] Speaker 00:
Good morning.

[00:13:46] Speaker 00:
Jared Rickard on behalf of Appellee MGM Grand Hotel LLC.

[00:13:53] Speaker 00:
Your Honors, my opposing counsel started his argument with a challenge to the appellant's signatures on the markers.

[00:14:02] Speaker 00:
If the appellant had raised a question about his signatures or claimed that his signatures had been forged, that probably would have been a genuine issue of fact that would have required a trial.

[00:14:14] Speaker 00:
But he didn't do so.

[00:14:16] Speaker 00:
He didn't challenge his signatures.

[00:14:18] Speaker 00:
And this court has already decided in the Las Vegas Sands versus an Amy case, markers are treated as commercial paper.

[00:14:26] Speaker 00:
Commercial paper is self-authenticating under FRE 902, subpart 9.

[00:14:32] Speaker 00:
So appellant didn't raise challenges to his signatures, he raised an authentication challenge and FRE 902-9 answers that authentication challenge.

[00:14:42] Speaker 00:
But even if we dig further, the authentication challenge is not again based on his signatures, it was based on his claim

[00:14:49] Speaker 00:
that he wasn't in Las Vegas on the days that the markers were dated.

[00:14:53] Speaker 00:
And that question is easily answered by MGM Grant statutory rights, which are set forth in the Nevada rights statute 463-368.

[00:15:03] Speaker 00:
That statute gives MGM Grant the ability as a gaming licensee to add the information necessary to make the negotiable instrument, i.e.

[00:15:15] Speaker 00:
the markers payable.

[00:15:17] Speaker 00:
That includes the date.

[00:15:18] Speaker 00:
That includes the bank account information and other necessary information.

[00:15:22] Speaker 00:
All that is required under Nevada law for a valid marker is the signature of the patron and the amount of the debt.

[00:15:30] Speaker 00:
So there is no question about his signature.

[00:15:33] Speaker 00:
There is no question about authenticity.

[00:15:35] Speaker 00:
And so that obviously cannot be an issue of fact.

[00:15:38] Speaker 00:
And Judge Malloy, you hit the nail on the head.

[00:15:41] Speaker 00:
Even if it maybe was, there was some sort of a spectrum of an issue here.

[00:15:45] Speaker 00:
the appellant in his own declaration admits that he signed the markers here.

[00:15:49] Speaker 00:
And so I think that that lays that question to rest.

[00:15:52] Speaker 00:
I think the real issue here and the real issue that the court should be looking at is the ratification defense.

[00:15:58] Speaker 00:
And there is and can be no dispute that the appellant ratified his markers with MGM Grant.

[00:16:04] Speaker 00:
He ratified them both with his affirmative conduct in making payments and with the fact that he failed to promptly disavow them after regaining his sobriety.

[00:16:15] Speaker 00:
And in the briefing.

[00:16:16] Speaker 01:
I'm going to ask you, at what point was he given copies or advised as to the amount of the markers after he left the casino?

[00:16:28] Speaker 01:
And presumably regained sobriety, if you look at his defense.

[00:16:34] Speaker 00:
Sure.

[00:16:34] Speaker 00:
And the court's focusing on after he left the casino, which is also what the district court focused on.

[00:16:40] Speaker 00:
The district court basically said, OK, I'm going to assume for the sake of summary judgment

[00:16:45] Speaker 00:
that you raised a sufficient incapacity defense.

[00:16:48] Speaker 00:
And I'm going to assume for the sake of summary judgment that you were incapacitated during the entire duration of your months long stay at MGM Grand, which is a stretch to say it lightly.

[00:17:01] Speaker 00:
But even making that assumption, I'm going to find that as a matter of law, your conduct that happened after you left the casino forms a valid ratification because that conduct is not disputed here.

[00:17:13] Speaker 03:
What's the answer to the question as to when he was informed as to the total amount that he owed the hotel?

[00:17:21] Speaker 03:
When was he told?

[00:17:21] Speaker 00:
So there can be no dispute of fact, no question that at least by January 26th, 2021, he was receiving certified letters, correspondence from MGM Grant stating the specific total amount that he owed.

[00:17:37] Speaker 00:
Subsequently, in March of 2021,

[00:17:40] Speaker 00:
MGM Grant sent him another certified letter.

[00:17:43] Speaker 00:
And that letter is located in the record at page 101.

[00:17:46] Speaker 00:
And I think it's important that this court take a look at that letter because in that letter, the MGM Grant was basically giving the appellant another bite at the apple, a second chance to raise a challenge to these markers.

[00:17:59] Speaker 00:
And what the MGM Grant said in that letter is said, quote, unless you dispute the validity of this debt or any portion thereof within 30 days after receipt of this letter, we will assume

[00:18:11] Speaker 00:
that the claim debt to be valid.

[00:18:13] Speaker 00:
The appellant didn't respond to that letter.

[00:18:15] Speaker 00:
He remained silent and he didn't say anything and he didn't challenge the debt, certainly not within 30 days.

[00:18:21] Speaker 00:
As Judge Thomas pointed out earlier, the first time, the very first time that appellant claimed that he was intoxicated and his counsel began making this incapacity argument because the appellant didn't say he was incapacitated, he just said that he was drinking.

[00:18:36] Speaker 00:
The first time that that happened was in this February 22nd, 2022, so almost a year later, declaration that was submitted in opposition to the motion for summary judgment.

[00:18:49] Speaker 00:
And so again, the district court got it right.

[00:18:51] Speaker 00:
The district court again said, look, I'm going to assume your intoxication defense is valid.

[00:18:57] Speaker 00:
I'm going to just look at this ratifying conduct that happened afterwards.

[00:19:01] Speaker 00:
And if we sort of march through the timeline with respect to both the affirmative payments and the failure to disavow, there really can't be a dispute of fact here.

[00:19:11] Speaker 00:
Now, with respect to the affirmative payments in the briefing, the appellant tries to make this argument, well, MGM didn't book the payments and credit them towards the $5 million marker.

[00:19:21] Speaker 00:
Let's look at what MGM did.

[00:19:23] Speaker 00:
Let's see how they acted.

[00:19:25] Speaker 00:
The problem with that, Your Honors, is the law of ratification doesn't care about what MGM did.

[00:19:30] Speaker 00:
The law of ratification focuses on what the appellant did as the arguably ratifying party.

[00:19:37] Speaker 00:
Nevada law follows the restatements, specifically the restatement second of contracts.

[00:19:42] Speaker 00:
Section 16 talks about intoxication.

[00:19:45] Speaker 00:
Section 380 talks about ratification.

[00:19:47] Speaker 00:
And I think one of the most important takeaways from those provisions is that a contract entered into by a previously incapacitated party is voidable.

[00:19:57] Speaker 00:
It's not void.

[00:19:59] Speaker 00:
And the ability to disaffirm that contract goes away forever

[00:20:03] Speaker 00:
if the previously incapacitated party, quote, manifests an intention to affirm or acts inconsistently with disaffirmance.

[00:20:12] Speaker 00:
And I would submit there is no better example of conduct that manifests an intent to affirm

[00:20:18] Speaker 00:
or that's inconsistent with disaffirmants than making partial payments to the tune of $2 million.

[00:20:25] Speaker 00:
These markers were the first two markers that the appellant took out at MGM Grand.

[00:20:28] Speaker 00:
He took out the $5 million marker on October 13th of 2018, and he took out the $2.995 million marker on October 17th.

[00:20:37] Speaker 00:
Now, while he was still a guest at MGM Grand, they applied some of his front money to credit.

[00:20:45] Speaker 00:
to the overall debt.

[00:20:46] Speaker 00:
I think there was a front money payment on October 25th of $64,000 and then another front money payment of $200,000 on November 30th, 2018 when he checked out.

[00:20:58] Speaker 00:
But more importantly, Your Honors, after he checked out, after he regained sobriety,

[00:21:04] Speaker 00:
He continued to make payments.

[00:21:06] Speaker 00:
The first payment was in January of 2019 to the tune of one million dollars.

[00:21:10] Speaker 00:
So he had to wire money or write a check to MGM Grant for a million dollars while he's now arguably regained his capacity.

[00:21:19] Speaker 00:
In February 2019, he made another payment.

[00:21:22] Speaker 00:
Again, a significant amount of money of $500,000.

[00:21:25] Speaker 00:
And then finally, on November 30th of 2020, two years to the day after he checked out of the MGM grant, he made another payment of $100,000.

[00:21:36] Speaker 00:
So I would submit there can be no question of fact at all that this is affirmative ratification of the markers through his affirmative conduct, his objective outward conduct, which is what ratification focuses on of him ratifying the agreements.

[00:21:53] Speaker 00:
And again, that's just part of the story.

[00:21:54] Speaker 00:
There's also the fact that he failed to disaffirm them promptly after regaining sobriety, you know.

[00:22:01] Speaker 03:
Council, is there any substance to

[00:22:04] Speaker 03:
opposing counsel's argument that the MGM waited so long to try to collect on the markers?

[00:22:11] Speaker 00:
No, Your Honor, this is just the standard industry procedure.

[00:22:14] Speaker 00:
Um, as you know from the, uh, I think the Zagolis case, essentially what the MGM does, like any other gaming licensee, is it allows patrons to take out these markers and then it gives them an opportunity to pay them back.

[00:22:27] Speaker 00:
It gives them, um, quite a bit of an opportunity to pay them back.

[00:22:31] Speaker 00:
And so at the time that MGM finally lost patience was in January of 2021 when it sent that demand correspondence.

[00:22:40] Speaker 00:
Those demand letters were sent not only as a firm reminder of these obligations, but they were also sent so that MGM could take advantage of the statutory penalties set forth in NRS 41.

[00:22:52] Speaker 00:
620.

[00:22:55] Speaker 00:
Under that statute, they needed to send him certified letters specifically stating the amount and specifically demanding the payment.

[00:23:02] Speaker 00:
And again, in the March letter, they gave him 30 days to raise a challenge to the markers, which he did not do.

[00:23:15] Speaker 00:
So going back to his failure to disaffirm, the standard there is he has to do it promptly.

[00:23:21] Speaker 00:
That's the standard set forth by the Nevada Supreme Court in the Lava Bearer case.

[00:23:26] Speaker 00:
So upon regaining sobriety, you have to promptly disaffirm.

[00:23:30] Speaker 00:
And Webster's defines the phrase promptly as, without delay, immediately, or very quickly.

[00:23:37] Speaker 00:
And again, there can be no question of fact that the appellant did not act promptly here.

[00:23:43] Speaker 00:
Again, under no stretch of the imagination, or no stretch of the term promptly, could he be considered to have acted in that manner, having waited

[00:23:54] Speaker 00:
two-and-a-half years to having waited over three years to raise his defense and his opposition to the motion for summary judgment.

[00:24:03] Speaker 01:
I don't know if there's anything in the record about this, but tell me if there is.

[00:24:11] Speaker 01:
So the last marker is in October 2018.

[00:24:15] Speaker 01:
He pays back some of it with chips.

[00:24:19] Speaker 01:
Then in January 2019, basically a month or two later, he pays a million.

[00:24:24] Speaker 01:
A month later, he pays $500,000 in February.

[00:24:29] Speaker 01:
Then nothing until October of 2020.

[00:24:31] Speaker 01:
That's what, 19 months later, he pays $100,000.

[00:24:35] Speaker 01:
What was going on during those 19 months?

[00:24:37] Speaker 01:
Anything that's in the record?

[00:24:39] Speaker 00:
There's nothing in the record, Your Honor.

[00:24:41] Speaker 00:
I can provide my speculation, which is that the casino was still communicating with the patron and trying to collect his debt and trying to work with him.

[00:24:48] Speaker 00:
Because here's another important part of the story.

[00:24:51] Speaker 00:
He checks out of the MGM Grand on November 30th of 2018.

[00:24:55] Speaker 00:
He actually comes back to the property a month later and checks in again and stays two nights from December 30th to January 1st, 2019.

[00:25:08] Speaker 00:
Again, at that time that he comes back, he's probably gambling.

[00:25:12] Speaker 00:
There's nothing in the record about that, but we can probably surmise that that's the case.

[00:25:16] Speaker 00:
But the more important part of the story, and what makes a difference in this case that it's not part of the record, is what's not in the record is the appellant raising any challenge to these markers.

[00:25:26] Speaker 00:
Him speaking up and saying, hey, I was incapacitated at that time in those previous markers.

[00:25:32] Speaker 00:
I was incapacitated.

[00:25:33] Speaker 00:
And you know, I don't believe that I should have to pay this debt and I'm hereby challenging this debt He remained silent then and he also remained silent while he was making those payments that we talked about previously those three payments that occurred between November or I'm sorry between January of 2019 and November of 2020 and it continued even further

[00:25:55] Speaker 00:
After he received the demand correspondence from MGM and after he received that March letter where he was given 30 days to raise a challenge.

[00:26:04] Speaker 00:
And again, the first time he raised it was in opposition to the motion for summary judgment.

[00:26:08] Speaker 00:
The district court got it right.

[00:26:10] Speaker 00:
It gave him every benefit of the doubt.

[00:26:12] Speaker 00:
And there was no remaining questions to be answered here.

[00:26:16] Speaker 00:
Again, if he had raised the claim that somehow his signature was forged, that probably would have been a question of fact.

[00:26:22] Speaker 00:
But that wasn't part of this case.

[00:26:26] Speaker 00:
And Lababara requires that he raises his challenge to capacity promptly.

[00:26:33] Speaker 00:
Upon becoming sober, which he did not do here.

[00:26:37] Speaker 00:
I think the only other sort of question that's presented by this appeal.

[00:26:40] Speaker 00:
Since I have two minutes left.

[00:26:41] Speaker 00:
I'll briefly get into it is this claim that

[00:26:44] Speaker 00:
the conversion claim is not sufficient under Nevada law.

[00:26:50] Speaker 00:
And I think it is an interesting argument, and there is definitely some logic to it.

[00:26:54] Speaker 00:
Basically, I've heard some courts refer to this as the bag of money doctrine, i.e.

[00:26:59] Speaker 00:
it has to be some sort of specific funds that are specifically identifiable, like a bag of money or gold bars or gold coins.

[00:27:07] Speaker 00:
And the only thing I would point out about that, Your Honor, Your Honors, is that

[00:27:11] Speaker 00:
the appellant waived that argument.

[00:27:13] Speaker 00:
He didn't raise it before the district court.

[00:27:15] Speaker 00:
When the MGM moved for summary judgment against him, he didn't even discuss the conversion claim.

[00:27:21] Speaker 00:
He just basically made these sort of general arguments about capacity.

[00:27:25] Speaker 00:
And so having not raised those arguments before the district court, he certainly can't come before this panel and start arguing it now.

[00:27:33] Speaker 00:
And the other thing that I would say is that Nevada hasn't adopted the quote unquote bag of money doctrine.

[00:27:39] Speaker 00:
It's still an open question under Nevada law.

[00:27:42] Speaker 00:
And I would also submit that if the court looks at the Evans v. Dean Witter case, which is one of the leading Nevada Supreme Court cases on the question of conversion,

[00:27:52] Speaker 00:
They're the courts not specifically saying that you don't have to have specific funds, but it seems to be implicitly recognizing that you don't.

[00:27:59] Speaker 00:
Because in that case you had a trustee who took money from a bank account, non-specific funds, that belonged to somebody else and was being accused of conversion.

[00:28:10] Speaker 00:
There was no challenge or no issue raised by the Supreme Court that somehow just because these were nonspecific funds that were in a bank account, it wasn't valid under Nevada law.

[00:28:19] Speaker 00:
And the last point I would make, Your Honors, before I sit down, is that even if the court

[00:28:24] Speaker 00:
decides to dig into the weeds on this issue, even if you decide to decide it.

[00:28:28] Speaker 00:
I think there is an argument here that these are specific funds because on the face of the marker, on the face of the agreement, you have the appellant specifically agreeing that he had sufficient funds in his account to pay these markers on demand.

[00:28:43] Speaker 00:
And so once he signed these markers and once he made that covenant,

[00:28:46] Speaker 00:
He agreed that these funds were staying in his account, and by spending them, depleting them, he converted them, and they were there by a specific time.

[00:28:54] Speaker 00:
All right, thank you, Council.

[00:28:55] Speaker 03:
You've exceeded your time.

[00:29:04] Speaker 02:
Your Honor, I'll focus briefly on the ratification point, since that's what my colleague spent most of his time on, unless the panel would prefer to discuss another issue.

[00:29:13] Speaker 02:
My colleague presented what I would describe as a pretty decent, compelling, closing argument for a jury trial about why Mr. Long ratified the markers that are at issue here.

[00:29:26] Speaker 02:
But that's not the standard.

[00:29:27] Speaker 02:
The standard is what happens when you draw every inference in Mr. Long's favor.

[00:29:32] Speaker 02:
When you do that, what you have is you have testimony from Mr. Long, whose credibility you must assume, that says that he has no recollection of executing these markers.

[00:29:42] Speaker 02:
He would never agree to execute markers at the amounts specified, and that if he did do something that resembled executing a marker, he did so under the influence of alcohol to the degree that he doesn't even remember what happened.

[00:29:58] Speaker 02:
So a jury, hearing those facts, could reasonably conclude that he never actually executed those markers.

[00:30:06] Speaker 02:
And Nevada law agrees in this case.

[00:30:08] Speaker 02:
Because if you look at the La Barbera and Tofani cases that are cited in the briefs,

[00:30:14] Speaker 02:
There, in both decisions, you have circumstances where the evidence of ratification is frankly much stronger than in this case.

[00:30:22] Speaker 02:
In the Tefani case, for example, there isn't merely silence on the part of the casino patron.

[00:30:28] Speaker 02:
The casino patron actually affirms the debt.

[00:30:31] Speaker 02:
He says, yes, I know I owe you the money, and I will pay it back, but I have to figure out how.

[00:30:36] Speaker 02:
And then his wife discovers that he went to Vegas and accrued these debts.

[00:30:41] Speaker 02:
And suddenly, he's saying, oh, I must have been too drunk.

[00:30:44] Speaker 02:
And in that case, the court still found that summary judgment was inappropriate.

[00:30:48] Speaker 02:
That's what should happen here.

[00:30:50] Speaker 03:
Counsel, you have exceeded your time.

[00:30:51] Speaker 03:
Could you please wrap up?

[00:30:52] Speaker 02:
Yes.

[00:30:53] Speaker 02:
Unless the panel has any further questions, I'll wrap up.

[00:30:57] Speaker 02:
Thank you.

[00:30:58] Speaker 03:
All right.

[00:30:58] Speaker 03:
Thank you, counsel.

[00:30:59] Speaker 03:
Thank you to both counsel.

[00:31:01] Speaker 03:
The case just argued is submitted for decision by the court.