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136 Nev., Advance Opinion .35
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

JAMES H. DROGE, AN INDIVIDUAL; No. 75206-COA
AND CYNTHIA DROGE, AN
INDIVIDUAL,
Appellants,
vs.
AAAA TWO STAR TOWING, INC., A
NEVADA CORPORATION; DONALD JUN 1 8 2020
SHUPP, AN INDIVIDUAL; ZANE ELIZASETH A. BROWN
cLErxtsupREME COURT
INVESTIGATIONS, INC., A NEVADA BY
CI OEP
‘11S4R
CORPORATION; MARK A. ZANE, AN Y C.

INDIVIDUAL; AND KRISTAL M.
ROMANS, A/K/A CRYSTAL ROMANS,
AN INDIVIDUAL,
Respondents.

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

Stovall & Associates and Ross H. Moynihan and Leslie Mark Stovall, Las
Vegas,
for Appellants.

Bremer Whyte Brown & O'Meara, LLP, and Jared G. Christensen and
Anthony T. Garasi, Las Vegas,
for Respondents Kristal M. Romans, Mark A. Zane, and Zane
Investigations, Inc.

Phillips, Spallas & Angstadt, LLC, and Alyce W. Foshee and Robert K.
Phillips, Las Vegas,
for Respondents AAAA Two Star Towing, Inc., and Donald Shupp.

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BEFORE GIBBONS, C.J., TAO and BULLA, JJ.

OPINION

By the Court, BULLA, J.:
Under NRS 104.9609—part of Nevada's version of the Uniform
Commercial Code (U.C.C.)—when a default occurs, a secured party who
"proceeds without breach of the peace can take possession of collateral
"[w]ithout judicial process." In other words, this statute authorizes a
creditor to enter onto private property to attempt to retrieve collateral in
what is commonly referred to as a self-help repossession.
In this appeal, the court is asked to consider an issue of first
impression—the question of what conduct, undertaken in the course of a
self-help repossession of a vehicle, constitutes a breach of the peace, such
that the privilege to enter real property without judicial process and retake
collateral afforded by NRS 104.9609 no longer applies to those engaged in
the repossession effort. We also consider whether appellants can properly
base their tort claims on allegations that both a breach of the peace and
trespass occurred, even though they did not plead separate claims for such,
or indeed a violation of NRS 104.9609. Finally, this court must examine
whether summary judgment was warranted with respect to appellants tort
claims in light of our resolution of the above issues.
I.
A.
Russell Droge entered into a loan agreement with JP Morgan
Chase Bank, N.A., in connection with his purchase of a Dodge Ram pickup
truck. Russell was later incarcerated, and his parents, appellants James
and Cynthia Droge (referred to collectively as the Droges where
appropriate), agreed to store the truck at their home in Pahrump, Nevada.
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Thereafter, the Droges had possession of the truck, which they kept in their
fenced backyard. Although the Droges had possession of the collateral, they
have never asserted during these proceedings that they are debtors or
obligors with respect to the truck or that they have any security interest in
the truck.
While incarcerated, Russell defaulted on his loan. Chase
retained respondent Zane Investigations, Inc. (Zane), to perform an
involuntary repossession of the truck." Zane, in turn, assigned the matter
to respondent Kristal Romans, who was Zane's sole employee in Pahrump
and in charge of its repossessions.2 In connection with her assignment to
repossess Russell's truck, Romans regularly drove by the Droges property
to assess the feasibility of repossessing the vehicle. Romans was not

'Because a secured party's duty to carry out self-help repossessions is
nondelegable, see U.C.C. § 9-625 cmt. 3 (Am. Law Inst. & Unif. Law Comm'n
2017), secured parties will be held liable for actions taken on their behalf
by agents or independent contractors. Courts have likewise permitted
claims to proceed against agents or independent contractors for any breach
of the peace and resulting tortious conduct that occurs during self-help
repossessions. See, e.g., Callaway v. Whittenton, 892 So. 2d 852, 857 (Ala.
2003) (permitting a wrongful repossession claim against a repossession
agent to go to the jury on the question of whether the agent breached the
peace); Griffith v. Valley of the Sun Recovery & Adjustment Bureau, Inc.,
613 P.2d 1283, 1284-86 (Ariz. Ct. App. 1980) (permitting a plaintiff to
proceed against a repossession agency with a negligence claim that was
based on a breach of the peace theory). Thus, for purposes of this opinion,
we do not differentiate between secured parties and their independent
contractors.

2Zane and Romans are jointly represented in this matter, and they
are referred to collectively herein as Romans where appropriate.

3
immediately able to repossess the truck because it was parked in the
Droges secured backyard.
Several months later, Romans spotted Russell's truck parked in
front of the Droges' home on the driveway, which was not fenced and was
therefore accessible. However, because Zane does not have its own tow
trucks in Pahrump, Romans could not proceed with the repossession by
herself. Instead, Romans parked on a nearby street and contacted
respondent AAAA Two Star Towing, Inc. (Two Star), which provides Zane
with towing services when it repossesses vehicles in Pahrump. Two Star,
in turn, dispatched one of its tow truck drivers, respondent Donald Shupp,3
to meet Romans and tow Russell's truck for Zane. Shupp's training was in
the area of towing, but with regard to repossessions, Two Star directed him
to follow the repossession agenes instructions, avoid confrontations, and
retreat upon demand.
On the day of the attempted repossession, Shupp met Romans
on the street where she had parked to assess whether they had an
opportunity to repossess the truck. She explained to Shupp that the
repossession was involuntary and would be of the "grab-and-go," "no-
contace' variety. They then drove to the Droges' property. Romans parked
on the street in front of the Droges' house and walked to Russell's truck in
the driveway while Shupp backed his tow truck onto the driveway behind
Russell's truck.
The parties agree, and the record reflects, that upon entering
the Droges' property, Romans confirmed that Russell's truck was the vehicle
they were there to repossess by checking its vehicle identification number.

3Two Star and Shupp are jointly represented in this matter, and they
are referred to collectively herein as Shupp where appropriate.
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Shupp then lowered his tow truck's flatbed and began chaining Russell's
truck to the winch so that the truck could be pulled onto the flatbed.
Meanwhile, Cynthia and James Droge, who were in their house, became
aware of what was transpiring and went outside to confront Romans and
Shupp. At some point during the proceeding events, either one or both of
the Droges objected to Romans and Shupp repossessing Russell's truck,
although the parties vigorously dispute when this actually took place. But
ultimately, the attempted repossession continued until James retrieved the
keys to Russell's truck, started it, and moved it into the fenced backyard.
Either Romans or Shupp then called 9-1-1.
B.
The parties do not agree about much else that transpired during
the attempted repossession. Indeed, Romans and Shupp maintain that they
followed proper procedures during the attempted repossession and that
their entry onto the Droges property was privileged under NRS 104.9609.
The Droges, on the other hand, contend that Romans and Shupp breached
the peace and thereby forfeited the statutes protections. The parties'
positions are based on a number of more specific disputes concerning what
happened during the attempted repossession.4
For example, the parties disagree whether Romans and Shupp
identified themselves and produced the documentation from Chase that
authorized them to repossess Russell's truck. The Droges contend that
Romans refused Cynthia's request to see her identification and the
documentation and instead stepped toward Cynthia in a confrontational

4A1though the parties disagree about what happened during the
attempted repossession, the propriety of the time at which it occurred has
never been at issue in this case.
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manner, proclaiming that she and Shupp were "taking the truck." Romans
and Shupp, on the other hand, maintain that, although they were not asked
for identification or the documentation, Romans identified herself and
explained that they were repossessing Russell's truck, which prompted
Cynthia to threaten to call 9-1-1.
The parties also dispute when the Droges objected to Romans
and Shupp being on their property in order to repossess the truck, and how
Romans and Shupp responded to any objection. According to the Droges,
they objected to the repossession as soon as Romans refused to identify
herself and produce the repossession order. The Droges further assert that
they objected several more times during the incident and that, although
Romans eventually walked off of the property and out to the street in front
of the Droges house, Shupp continued with his efforts to attach a chain to
the truck until James moved Russell's truck to the backyard and demanded
that Shupp leave the property.
According to Romans and Shupp, Cynthia threatened to call the
police, which prompted Romans to tell Shupp to hurry up so they could
"hook" the vehicle before the Droges told them to leave the property. But
Romans and Shupp do not acknowledge any of the Droges' specific
objections to the repossession, arguing instead that the first time the Droges
demanded that they leave the property was after James finished moving
Russell's truck into the backyard. Romans and Shupp further maintain
that Shupp responded by promptly joining Romans on the street in front of
the Droges' house while leaving his tow truck in the Droges' driveway,
presumably to be retrieved in the aftermath of the 9-1-1 call that Romans
or Shupp subsequently made.

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Lastly, the parties dispute whether Shupp was struck by
Russell's truck while James was attempting to move the vehicle. According
to the Droges, James saw that Shupp was working under the back of the
truck when James began to move it, but they maintain that James first
moved the vehicle forward, which prompted Shupp to stand up and get out
of the way, and that James then backed the truck up and proceeded to
maneuver the vehicle into the backyard without event. But the Droges
acknowledge that, once James parked Russell's truck in the backyard,
Shupp stated from the other side of the fence, "[y]ou hit me, man," albeit
without further explanation. On the other hand, Romans and Shupp
maintain that Shupp was still under the vehicle when James began to back
it up, which prompted Romans to scream for Shupp to watch out. This
prompted Shupp to look around, but Romans warning apparently came too
late, as Romans and Shupp indicate that Shupp was struck in the chest by
the passenger-side rear wheel of RusselPs truck. According to Shupp, he
would have been crushed if James had backed Russell's truck up another
four inches; however, since he was not injured, he was able to scramble out
from under the truck while James continued maneuvering the vehicle into
the backyard.
C.
In the aftermath of the failed repossession, a sheriffs deputy
responded to the Droges' home. James admitted to the sheriffs deputy that
he knew Shupp was on the ground behind Russell's truck when he began to
move it. As a result, the sheriffs deputy concluded that James committed
battery with a deadly weapon and arrested him. For the same reason, a
deputy district attorney decided to charge James with that crime, and the
justice court concluded that there was probable cause to bind James over

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for trial before the district court. The case proceeded to trial, and the jury
ultimately acquitted James.

The Droges subsequently sued Zane, Romans, Two Star, and
Shupp, alleging that Romans and Shupp entered their property and
trespassed when they failed to leave when asked, that Shupp indicated to
the sheriffs deputy that he wanted to press charges against James, and that
Romans and Shupp testified against James at his criminal trial!) Based
primarily on these allegations, the operative complaint included claims for
malicious prosecution (solely on James's behalf); negligent hiring, training,
and supervision (against Zane and Two Star); negligent infliction of
emotional distress (NIED) (solely on Cynthia's behalf); negligent
performance of an undertaking (against Zane and Two Star); nuisance
(against Romans and Shupp); aiding and abetting; concert of action;
intentional infliction of emotional distress (IIED); unreasonable intrusion
upon the seclusion of another; and declaratory relief.6
Early in the proceeding, Romans moved for summary judgment,
but the district court only granted her motion as to James's claim for
malicious prosecution and James and Cynthia's claim for negligent hiring,
summarily concluding that they were unable to establish the required
elements of those claims. Following discovery, Romans and Shupp each
moved for summary judgment on the Droges' remaining claims, arguing,

5The Droges also sued Zane's owner, Mark A. Zane, but the district
court later dismissed their claims against him, and the Droges do not
challenge that decision on appeal.
6The Droges asserted these claims against each respondent unless
otherwise noted.
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among other things, that NRS 104.9609 authorized them to enter the
Droges property to repossess Russell's truck; that they did not initiate the
prosecution against James; and that they were not the proximate cause of
any of the Droges' alleged damages.
The Droges opposed summary judgment, asserting, among
other things, that Romans and Shupp failed to leave their property when
directed to do so; therefore, Romans and Shupp breached the peace by
trespassing and cannot rely on the protections afforded by NRS 104.9609,
that Romans and Shupp initiated the criminal proceeding against James,
and that they suffered physical and emotional injuries as a result of the
attempted repossession and James's subsequent criminal prosecution.
Following a hearing, the district court entered a second written order
summarily concluding that the Droges could not establish all the required
elements of their remaining claims and granted summary judgment against
them. The Droges appeal, challenging both summary judgment orders.
III.
This court reviews a district coures orders granting summary
judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026,
1029 (2005). Summary judgment is proper when the pleadings and other
evidence in the record establish that no genuine issue of material fact exists
and that the moving party is entitled to a judgment as a matter of law. Id.
When evaluating a summary judgment motion, the district court must view
all evidence, along with any reasonable inferences drawn from it, "in a light
most favorable to the nonmoving party." Id. The nonmoving party "may
not rest upon general allegations and conclusions, but must, by affidavit or
otherwise, set forth specific facts demonstrating the existence of a genuine
factual issue." Id. at 731, 121 P.3d at 1030-31 (internal quotation marks

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omitted). "A factual dispute is genuine when the evidence is such that a
rational trier of fact could return a verdict for the nonmoving party." Id. at
731, 121 P.3d at 1031.
On appeal, the Droges primarily argue that Romans and Shupp
forfeited NRS 104.9609s protections by breaching the peace during the
attempted repossession of Russell's truck. They contend that Romans and
Shupp's entry on their property was a trespass because the two would not
leave when asked, and therefore, the district court erred in granting
summary judgment against them. Further, they argue that their various
tort claims, which were underpinned by theories of breach of the peace and
trespass, were supported by the evidence and that the district court should
not have entered summary judgment against them. Romans and Shupp
counter that they did not breach the peace during the attempted
repossession, and therefore, their entry on the Droges' property to repossess
Russell's truck was privileged under NRS 104.9609.7 Romans and Shupp
further argue that the Droges' amended complaint was deficient in that the
Droges failed to prove the requisite elements of their claims, including
damages; thus, summary judgment was appropriate.

7 A1though not raised in the present case, because it is an important
issue, we clarify that a successful repossession is not a prerequisite to a
secured party being liable for violating NRS 104.9609. See Williams v.
Republic Recovery Serv., Inc., No. 09-cv-6554, 2010 WL 3732107, at *3 (N.D.
Ill. Sep. 16, 2010) (concluding that a secured party need not successfully
repossess collateral to violate Illinois' self-help repossession statute);
Census Fed. Credit Union v. Wann, 403 N.E.2d 348, 351-52 (Ind. Ct. App.
1980) ("[E]ven in the attempted repossession of a chattel off a street,
parking lot or unenclosed space, if the repossession is verbally or otherwise
contested at the actual time of and in the immediate vicinity of the
attempted repossession by the defaulting party or other person in control of
the chattel, the secured party must desist and pursue his remedy in court.").
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IV.
Before we can evaluate whether the district court erred in
granting summary judgment against the Droges on their various tort
claims, we must first determine whether Romans and Shupp forfeited the
protections afforded by NRS 104.9609 by breaching the peace in their efforts
to repossess Russell's truck. Nevada's statute, like its analogue in the
U.C.C., does not define the term breach of the peace. See U.C.C. § 9-609
cmt. 3 (Am. Law Inst. & Unif. Law Comm'n 2017) (noting that, rather than
defining or explaining what conduct constitutes a breach of the peace,
U.C.C. § 9-609 leaves that issue for development by the courts). And
although the Nevada Supreme Court has recognized that self-help
repossessions are permissible, provided that they are performed without a
breach of the peace, see Nev. Nat'l Bank v. Huff, 94 Nev. 506, 512, 582 P.2d
364, 369 (1978) (citing NRS 104.9609 as originally numbered), the court has
yet to define what constitutes a breach of the peace in the context of the
U.C.C.
A.
The term "breach of the peace," however, appears elsewhere in
Nevada law. The term is defined in NRS 203.010, a criminal statute that
appears under the heading "Nreach of peace," which makes it a
misdemeanor to "maliciously and willfully disturb the peace or quiet of any
neighborhood or person or family by loud or unusual noises, or by
tumultuous and offensive conduct, threatening, traducing, quarreling,
challenging to fight, or fighting." In arguing that they did not breach the
peace, Romans and Shupp emphasize that the sheriffs deputy did not cite
them for violation of this criminal statute. But while the rules of statutory
construction generally permit us to construe a statutory term by looking to

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how that term is defined elsewhere in Nevada law, see Poole v. Nev. Auto
Dealership Invs., LLC, 135 Nev. 280, 283-84, 449 P.3d 479, 482-83 (Ct. App.
2019) (construing a statutory term by looking to how that term is defined in
similar statutes), applying that approach in the present case would be
inapposite to how the Legislature has expressly stated Nevada's U.C.C.
should be construed. Indeed, NRS 104.1103(1) directs courts to liberally
construe and apply Nevada's U.C.C. o make uniform the law among the
various jurisdictions." See Newmar Corp. v. McCrary, 129 Nev. 638, 641,
309 P.3d 1021, 1024 (2013) (recognizing that NRS 104.1103 provides courts
guidance with respect to how they should construe Nevada's U.C.C.). As a
result, we proceed to examine how other jurisdictions have constnied and
applied the term "breach of the peace for purposes of applying their self-
help repossession statutes.
B.
Not surprisingly, courts struggle to define the term "breach of
the peace in the context of self-help repossession statutes. Indeed, a breach
of the peace has been described as "a legal concept with shifting boundaries
not unlike the relatively elastic legal concept of 'probable cause.'" Hopkins
v. First Union Bank of Savannah, 387 S.E.2d 144, 145 (Ga. Ct. App. 1989).
As a result, most courts simply resolve breach-of-the-peace cases without
adopting a definition for the term itself, instead focusing on the specific
factual circumstances of each case. See, e.g., Hollibush v. Ford Motor Credit
Co., 508 N.W.2d 449 (Wis. Ct. App. 1993) (looking to a cases specific factual
circumstances without defining the term breach of the peace); Wade v. Ford
Motor Credit Co. , 668 P.2d 183 (Kan. Ct. App. 1983) (surveying definitions
of breach of the peace from extrajurisdictional authorities without adopting
them).

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Because we agree that breach of the peace is a relatively elastic
legal concept, we track the majority approach and decline to adopt an
express definition for the term. Instead, we provide workable guidelines to
assist courts in determining when a breach of the peace occurs. We initially
focus on key general principles that can be gleaned from how other
jurisdictions have resolved whether a secured party's conduct rises to the
level of a breach of the peace resulting in losing the protections afforded by
self-help repossession statutes. We next consider the analytical framework
set forth in the Restatement (Second) of Torts, which provides guidance as
to when a secured party's conduct will be deemed to constitute a breach of
the peace in the self-help repossession context. Finally, we will address the
appropriate legal test to be applied in Nevada with respect to this issue.
C.
Because litigation in this area generally involves a narrow set
of factual circumstances that routinely arise during self-help repossessions,
general principles with respect to what constitutes a breach of the peace are
readily discernable from other jurisdictions. For example, courts routinely
conclude that a breach of the peace occurs where actual violence or physical
resistance is present during a repossession. See, e.g., Callaway v.
Whittenton, 892 So. 2d 852, 854, 857 (Ala. 2003) (holding that a repossession
agent who drove over a debtor's foot and drug him behind a vehicle used
physical force to overcome the debtor's resistance and that a jury could
therefore find a breach of the peace); Cottam v. Heppner, 777 P.2d 468, 472
(Utah 1989) (identifying the potential for violence and the nature of the
premises intruded upon as the primary factors for the court's consideration
when determining whether a breach of the peace has occurred). However,
courts nonetheless widely recognize that violence is not a precondition to a

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breach of the peace under self-help repossession statutes. See, e.g. , Chrysler
Credit Corp. v. Koontz, 661 N.E.2d 1171, 1173 (1ll. App. Ct. 1996) (providing
that violent conduct is not a necessary element of a breach of the peace and
that a probability of violence incident to a repossession is sufficient).
Courts also routinely hold that, even absent physical violence,
when a repossession agent crosses physical barriers or destroys personal
property in furtherance of a repossession, a breach of the peace occurs. See,
e.g., Davenport v. Chrysler Credit Corp., 818 S.W.2d 23, 29-30 (Tenn. Ct.
App. 1991) (concluding that a repossession agent breached the peace by
entering a closed garage and cutting a padlock). However, courts also
recognize that a mere trespass, standing alone, is not a breach of the peace.
As a result, courts have been unwilling to subject creditors to liability for
removing collateral from debtors private driveways, provided that they are
open. See, e.g., Butler v. Ford Motor Credit Co., 829 F.2d 568, 569-70 (5th
Cir. 1987) (affirming a district court's conclusion that a repossession agent
did not breach the peace by entering an open private driveway to repossess
a vehicle without the use of force). And courts generally take the same
approach where creditors repossess collateral from open areas on the
property of third parties. See, e.g., Reno v. Gen. Motors Acceptance Corp.,
378 So. 2d 1103, 1103-05 (Ala. 1979) (concluding that a repossession agent
did not breach the peace when it removed the debtor's collateral from his
employer's parking lot).
Courts further routinely conclude that, under self-help
repossession statutes, the peace is breached when a repossession proceeds
over the objection of the debtor or certain third parties, such as the debtor's
family or a person in control of the collateral. See, e.g., Hollibush, 508
N.W.2d at 455 (concluding that a secured party's agent breached the peace

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when it repossessed a vehicle over the objection of the debtor or her fiancé).
However, courts generally recognize that an objection must be made at the
time of the repossession to give rise to a breach of the peace. See, e.g. , Chapa
v. Traciers & Assocs. , 267 S.W.3d 386, 395 (Tex. Ct. App. 2008) (recognizing
that the secured party must desist when the debtor or other person in
control of the collateral objects contemporaneously with and in close
proximity to the repossession).8
D.
We next examine the approach set forth in Restatement
(Second) of Torts section 198(1) (Am. Law Inst. 1965) in determining what
constitutes a breach of the peace. In addition to analyzing the specific
circumstances of each case, courts also follow a more structured approach
by applying the test from section 198(1) of the Second Restatement, which
provides that "[o]ne is privileged to enter land in the possession of another,
at a reasonable time and in a reasonable manner, for the purpose of
removing a chattel to the immediate possession of which the actor is
entitled, and which has come upon the land otherwise than with the actor's
consent or by his tortious conduct or contributory negligence."

8A few courts have essentially held that a breach of the peace does not
occur when a repossession proceeds over a mere objection. See, e.g., Koontz,
661 N.E.2d at 1174 (reasoning that a self-help repossession statute would
be useless if an oral protest alone were sufficient to constitute a breach of
the peace). But as observed in Hollibush, an objection is a "precursor to
violence and . . . it should not be necessary for a debtor to resort to violence"
for a breach of the peace to occur. 508 N.W.2d at 455. Because we agree
with the Hollibush reasoning, we conclude that a mere objection may be
sufficient to require a secured party to terminate its repossession efforts so
as not to breach the peace.
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The Wyoming Supreme Court's decision in Salisbury Livestock
Co. v. Colorado Central Credit Union provides the best example of this
approach. 793 P.2d 470 (Wyo. 1990). In that case, a debtor defaulted on a
loan secured by, as relevant here, two vehicles that he stored on a secluded
ranch that was owned by a corporation for which he held a partial
ownership interest. Id. at 471-72, 475. After the secured party's agents
repossessed those vehicles from the ranch without notice to the corporation,
the corporation sued the secured party and its agents for trespass, and the
trial court entered a directed verdict for the defense, reasoning that the
agents conduct was privileged under Wyoming's self-help repossession
statute, which is nearly identical to NRS 104.9609. Id. at 471-73, 475.
In the subsequent appeal, the Salisbury court considered
whether the secured party's agents' conduct rose to the level of a breach of
the peace for purposes of Wyoming's self-help repossession statute. The
Salisbury court initially observed that Wyoming's self-help repossession
statute was a codification of U.C.C. section 9-503, which has since been
renumbered as U.C.C. section 9-609. Id. at 473. The Salisbury court
further explained that U.C.C. section 9-609 itself incorporated a preexisting
common law right of extrajudicial repossession, which the court reasoned
was expressed in section 1.98(1) of the Second Restatement.9 Id. In
addition, because nothing in Wyoming's self-help repossession statute

9Given the Salisbury court's observation that section 198(1) of the
Second Restatement expressed a common law right that predated the
U.C.C., it is notable that section 198(1) of the Second Restatement is a
substantially unchanged version of Restatement (First) of Torts section
198(1), which the American Law Institute published in 1934, nearly two
decades before the Uniform Commercial Code, with its breach of the peace
standard, was offered to the states for adoption. See U.C.C. § 9-503 (Am.
Law Inst. & Unif. Law Comm'n 1951 Final Text Edition).
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indicated that the Wyoming Legislature intended to deviate from the
common law, the Salisbury court adopted the Second Restatement's
reasonableness test for purposes of determining when a secured party's
conduct during a self-help repossession rises to the level of a breach of the
peace. Id. at 474. For further support, the Wyoming Supreme Court
reasoned that this approach would effectively balance the secured party's
right to enforce its security interest through self-help with society's interest
in tranquility and the right of those who are not parties to a security
agreement to be free from unwanted invasions of their land. Id. at 474-76.
Consistent with the general principles discussed above, the
Salisbury court further explained that, in applying the Restatemenes
reasonableness test, the primary factors a court should consider are the
potential for violence and the nature of the premises intruded upon, since
the potential for violence increases as the proximity to a dwelling,
particularly a secluded one, decreases. Id. at 474-75. Thus, because the
underlying repossession took place in a rural setting on a third party's
property without notice to the third party, the Salisbury court concluded
that a jury needed to determine whether there was a real possibility of
immediate violence, such that the repossession was not reasonable in time
and manner and, therefore, resulted in a breach of the peace. Id. at 475.
Accordingly, the Salisbury court overturned the directed verdict for the
secured party and its agents on the corporation's trespass claim and
remanded the matter for a jury to evaluate whether a breach of the peace
occurred. Id. at 471.
V.
With the foregoing in mind, we turn to how Nevada courts
should evaluate breach of the peace in the self-help repossession context,

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including when applying NRS 104.9609. In support of their argument that
Romans and Shupp breached the peace during the attempted repossession,
the Droges argue that this court should follow the Wyoming Supreme
Court's approach in Salisbury by adopting the Restatement's
reasonableness standard. While Romans and Shupp disagree with respect
to whether a breach of the peace occurred, they follow the Droges lead in
framing their argument in terms of whether they acted reasonably during
the attempted repossession.
In considering whether to adopt the Restatement's
reasonableness standard, we initially note that self-help repossession is
recognized to be an inherently dangerous activity. See, e.g., Ford Motor
Credit Co. v. Ryan, 939 N.E.2d 891, 927 (Ohio Ct. App. 2010). However,
secured parties nevertheless have an interest in enforcing their security
interests through self-help when debtors default. As a result, the self-help
repossession statutes that derive from U.C.C. section 9-609 authorize
secured parties to engage in a repossession if it can be done without a breach
of the peace. In this way, self-help repossession statutes protect the interest
of not only the secured party, but also the debtor and the general public.
See U.C.C. § 9-601 cmt. 2 (Am. Law Inst. & Unif. Law Comm'n 2017)
(explaining that U.C.C. § 9-609 limits a secured party's ability to enforce its
security interest in order to "protect [ ] the defaulting debtor, other creditors,
and other affected person?). Indeed, these authorities strive
(1) to benefit creditors in permitting them to realize
collateral without having to resort to judicial
process; (2) to benefit debtors in general by making
credit available at lower costs; and (3) to support a
public policy discouraging extrajudicial acts by
citizens when those acts are fraught with the
likelihood of resulting violence.

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Clarin v. Minn. Repossessors, Inc., 198 F.3d 661, 664 (8th Cir. 1999)
(internal quotation marks omitted); see also Giles v. First Va. Credit Serus.,
Inc., 560 S.E.2d 557, 565 (N.C. Ct. App. 2002). Consequently, the overriding
goal for any test for determining whether conduct constitutes a breach of
the peace must be to balance the stated objectives of self-help repossessions
while minimizing the potential for violence by providing debtors and
creditors with clear guidance as to when a breach of the peace occurs.
Clarin, 198 F.3d at 664 (reasoning that, because secured parties, debtors,
and the public have competing interests in the self-help repossession
context, those interests must be balanced when determining what
constitutes a breach of the peace); see also Salisbury, 793 P.2d at 475-76
(recognizing the importance of balancing the secured party's interest in a
self-help remedy with society's interest in tranquility and the right of third
parties to be free from unwanted invasions of their land).
We agree with the Wyoming Supreme Court that an effective
means of balancing the competing interests that arise in the self-help
repossession context is provided by the Second Restatement's requirement
that self-help repossessions be conducted at a reasonable time and in a
reasonable manner. Moreover, because NRS 104.9609 does not express a
legislative intent to deviate from the common law right to extrajudicial
repossession that predated the U.C.C., we agree with the Wyoming
Supreme Court that applying the Second Restatement's reasonableness
standard to determine when a breach of the peace occurs is particularly
appropriate. See Branch Banking & Tr. Co. v. Windhaven & Tollway, LLC,
131 Nev. 155, 158, 347 P.3d 1038, 1040 (2015) (providing that Nevada's
appellate courts "presume that a statute does not modify common law
unless such intent is explicitly stated"); Restatement (First) of Torts

19
Introduction (Am. Law Inst. 1934) (explaining that the Restatement was
published "to present an orderly statement of the general common law of
the United States"); see also Salisbury, 793 P.2d at 473 (reasoning that the
Restatement reflects the common law of extrajudicial repossession and
adopting the Restatemenes reasonableness standard since Wyoming's self-
help repossession statute did not include an expression of legislative intent
to deviate from the common law). Indeed, the Restatement's
reasonableness standard has been adopted, or at least tacitly endorsed, by
several other jurisdictions aside from Wyoming. See, e.g., Giles, 560 S.E.2d
at 565-66 (looking to the reasonableness of the time and manner of a
repossession based on the Restatement but also applying a multifactor
balancing test to aid the coures analysis).
Based on the reasoning articulated above, we adopt the
Restatemenes reasonableness standard and conclude that self-help
repossessions must be conducted at a reasonable time and in a reasonable
manner and that a breach of the peace occurs when a secured party fails to
satisfy either or both of these obligations.1° Moreover, given that the U.C.C.

10A1though we adopt the reasonableness factors articulated in the
Second Restatement, we reject the suggestion, in comments h and i to
section 198, that breaking and entering and the use of force are acceptable
in the self-help repossession context. Allowing such conduct is incompatible
with the U.C.C.'s objective of discouraging violence in the course of self-help
repossessions. Clarin, 198 F.3d at 664. We likewise decline to adopt
comment d to section 198, which generally requires a secured party to
provide the debtor with notice before it would be reasonable to enter the
property to recover collateral. While the provision of notice may be relevant
in assessing the reasonableness of a repossession in some circumstances,
requiring a secured party to provide notice is unduly restrictive and is likely
to undermine the secured parties ability to carry out self-help

20
essentially codifies the common law right to extrajudicial repossession
reflected in the Restatement, as the Salisbury court recognized, 793 P.2d at
473, we hold that a breach of the peace occurs when a self-help repossession
or attempted repossession under NRS 104.9609 is undertaken in an
unreasonable time or manner or both. And because the Nevada Legislature
has directed that NRS 104.9609 be liberally construed "No make uniform
the law among the various jurisdictions," NRS 104.1103(1), we also direct
Nevada courts to consider the key general principles regarding what
constitutes a breach of the peace that were discussed above in applying this
reasonableness test.11 See supra § IV(C). These general principles, gleaned

repossessions. See Everett v. U.S. Life Credit Corp., 327 S.E.2d 269, 269-70
(N.C. Ct. App. 1985).

"Although reasonableness is generally a question of fact for the jury,
a district court may nevertheless resolve a breach of the peace issue in the
self-help repossession context prior to trial when it is clear that a reasonable
jury could only reach one possible conclusion. See Lee v. GNLV Corp., 117
Nev. 291, 296-97, 22 P.3d 209, 212-13 (2001) (explaining, in the context of a
negligence claim, that reasonableness is usually a factual question for the
jury but that summary judgment may nevertheless be warranted if a claim
fails as a matter of law (citing W. Page Keeton et al., Prosser and Keeton on
the Lau) of Torts § 37, at 237 (5th ed. 1984) ("It is possible to say, in many
cases, that the conduct of the individual clearly has or has not conformed to
what the community requires, and that no reasonable jury could reach a
contrary conclusion."))). Consistent with this approach and Nevada's
summary judgment standard, the existence of disputed issues of material
fact is necessarily determinative of whether breach of the peace issues in
the self-help repossession context can be resolved by the district court on
summary judgment or whether these issues should go to the jury. Compare
Clarin, 198 F.3d at 664 (affirming the entry of summary judgment against
the plaintiff on a wrongful repossession claim that was based on a breach of
the peace theory), with Salisbury, 793 P.2d at 475 (reversing a directed
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from cases analyzing specific instances of conduct as discussed above,
should not be disregarded merely because we have adopted the
Restatement's reasonable time and manner requirements. Indeed, because
these principles stem from a common understanding of the factual
circumstances that tend to arise in self-help repossessions, courts should be
guided by these general principles when evaluating the reasonableness of a
secured party's conduct.12
VI.
Having determined that a breach of the peace occurs when a
secured party acts at a time or in a manner that is not reasonable during a
self-help repossession, we now consider whether genuine issues of material
fact remain with respect to whether Romans and Shupp's conduct breached
the peace during the attempted self-help repossession. We note that we are
not addressing the timing of the attempted repossession in the present case,
as the Droges have never argued that it occurred at an unreasonable time.
Instead, we focus on the manner of the attempted repossession. In this
respect, the evidence in the record—particularly the parties' deposition
testimony—when taken in the light most favorable to the Droges, reveals

verdict on a trespass claim for the jury to consider whether the secured
party's agent breached the peace).
12We recognize that other jurisdictions have used different analytical
frameworks to determine when a secured party's conduct rises to the level
of a breach of the peace in the self-help repossession context. See, e.g.,
Clarin, 198 F.3d at 664 (balancing five factors in considering whether a
breach of the peace occurred). Nevertheless, we conclude that the
Restatement's reasonableness test, when applied in conjunction with the
key general principles discussed above, provides the best-reasoned
approach for resolving breach of the peace issues in the self-help
repossession context.
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(I)} 194711 eget>
that factual disputes remain between the parties concerning almost
everything that transpired during the attempted repossession. Wood v.
Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005) (explaining
that, in the context of a motion for summary judgment, the evidence must
be viewed in the light most favorable to the nonmoving party). Indeed, the
parties disagree about when the Droges objected to the repossession and
how Romans and Shupp responded to their objections, as well as whether
the attempted repossession concluded with James striking Shupp with
Russell's truck. Moreover, the parties dispute whether Romans behaved
aggressively and failed to identify herself during the attempted
repossession.
Each of these factual disputes is material to the general
principles discussed above and raise the broader question as to whether
Romans and Shupp failed to act in a reasonable manner and thereby
breached the peace. See id. at 731, 121 P.3d at 1031 (stating that the
substantive law determines which factual disputes are material, and,
therefore, preclude summary judgment). Thus, genuine issues of material
fact remain as to whether Romans and Shupp breached the peace, and as a
result, the district court erred to the extent that it granted them summary
judgment based on a contrary conclusion rather than permitting the trier
of fact to evaluate those issues. Id. at 729, 121 P.3d at 1029.
VII.
The foregoing does not end our analysis, however, because
Romans and Shupp further assert that the Droges failed to plead breach of
the peace and trespass as separate claims below, and therefore the issues
are not properly before this court. The Droges do not dispute that they did
not expressly plead separate claims for breach of the peace and trespass in

23
their amended complaint. Instead, they arve that the issues are properly
before us since "breach of the peace" and "trespass" underpin their claims
for MED, negligent training and supervision, negligent performance of an
undertaking, I1ED, unreasonable intrusion upon the seclusion of another,
nuisance, concert of action, aiding and abetting, and punitive damages, as
well as Romans and Shupp's defenses thereto. In particular, the Droges
contend that they may establish certain elements of their tort claims by
demonstrating that Romans and Shupp breached the peace during the
attempted repossession and thereby forfeited NRS 104.9609s protections.
A.
The Droges' argument in this regard raises the issue of whether
a plaintiff may seek redress for a breach of the peace by bringing tort claims,
as the Droges did here, even though Article 9 of Nevada's U.C.C. provides
for a private cause of action arguably encompassing the conduct at issue
here. Specifically, NRS 104.9625 makes "a person . . . liable for damages in
the amount of any loss caused by a failure to comply with . . . [A]rticle [91."
When a plaintiff brings a claim under NRS 104.9625 that is premised on a
secured party breaching the peace in violation of NRS 104.9609, the
plaintiff is essentially asserting a wrongful repossession claim. See, e.g.,
Clarin, 198 F.3d at 663 (referring to a claim arising from a secured party's
alleged breach of the peace as a cause of action for wrongful repossession
under the U.C.C.); 42 Am. Jur. 3d Liability of Creditor and Repossession
Agent for Wrongful Repossession and Tortious Acts Committed During
Repossession § 355 (1997) (explaining that a self-help repossession is
wrongful if any one of the following elements are missing: "(1) the creditor
must have a security interest in the property repossessed; (2) the debtor
must be in default; (3) the creditor's actions must be in conformance with

24
its contract with the debtor; and (4) the repossession must occur without a
'breach of the peace"' (footnotes omitted)).
But pursuant to NRS 104.9625(3), this statutory wrongful
repossession claim is only available to debtors, obligors, and holders of
security interests or other liens on collateral." And because the Droges do
not contend that they fall within any of these categories, there is no
indication that they are eligible claimants under the statute. See NRS
104.9102(1)(bb), (fff) (defining the terms "debtoe and "obligoe for purposes
of Nevada's U.C.C.). This is likely why the parties failed to either address
or even identify this issue below. But a question remains as to whether the
statute's remedy is nonexclusive, such that the Droges may maintain
common law tort claims based on the same type of conduct that would give
rise to a claim under NRS 104.9625, such as a violation of NRS 104.9609.
Based on our review of extrajurisdictional authority as well as
the comments to U.C.C. section 9-625 and other secondary sources, we
conclude that Nevada's self-help repossession statute is not an exclusive
remedy. This conclusion is consistent with other courts, which widely
recognize that statutes based on U.C.C. section 9-625 are nonexclusive. See,

13The comments to U.C.C. section 9-625 (Am. Law Inst. & Unif. Law
Comm'n 2017), which corresponds to NRS 104.9625 and provides
persuasive authority with respect to the interpretation of Nevada's U.C.C,
see Edelstein v. Bank of N.Y. Mellon, 128 Nev. 505, 523, 286 P.3d 249, 261
(2012) (citing the official comments to the U.C.C. as persuasive authority),
confirm this interpretation of NRS 104.9625(3). See U.C.C. § 9-625 cmt. 3
(providing that subsection (c) of U.C.C. § 9-625, which corresponds to NRS
104.9625(3), identifies who may assert a claim deriving from the provision);
NRS 104.9625(3) (setting forth damages that are available under NRS
104.9625(2) to a person who "at the time of fa violation of Article 91 was a
debtor, was an obligor or held a security interest in or other lien on the
collaterar).
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e.g., Davenport v. Chrysler Credit Corp., 818 S.W.2d 23, 31 (Tenn. Ct. App.
1991) (explaining that Tennessee's equivalent to the predecessor of U.C.C.
§ 9-625 was not exclusive, but rather, was cumulative to other remedies
available under state law); Gen. Elec. Credit Corp. v. Timbrook, 291 S.E.2d
383, 385 (W. Va. 1982) ("[I]f repossessions result in breaches of the peace,
creditors are responsible for any torts they commit."); Whisenhunt v. Allen
Parker Co., 168 S.E.2d 827, 831 (Ga. Ct. App. 1969) (explaining that,
although a repossession agency had a right to peacefully repossess a vehicle,
it was "responsible for any tortious acts committed during the
repossession"). And although courts generally do not elaborate on this
point, they frequently permit plaintiffs to present individual tort claims
premised on alleged breaches of the peace. See, e.g., Mauro v. Gen. Motors
Acceptance Corp., 626 N.Y.S.2d 374, 377 (N.Y. Sup. Ct. 1995) (permitting
plaintiffs to proceed with assault and battery claims against a secured party
based on the conduct of its independent contractor during a repossession);
Smith v. John Deere Co., 614 N.E.2d 1148, 1154-55 (Ohio Ct. App. 1993)
(permitting plaintiffs to proceed with trespass and negligence claims that
were based on a breach of the peace theory).
Further support for our conclusion that NRS 104.9625s private
cause of action is nonexclusive can be found in comment 3 to U.C.C. section
9-625. That comment initially clarifies that, although U.C.C. section
9-625(b), like NRS 104.9625(2), states that persons eligible to bring
wrongful repossession claims deriving from U.C.C. section 9-625 may
recover damages for "any loss" resulting from a secured party's
noncompliance with Article 9, the provision only supports the recovery of
actual damages since it is intended to create a mechanism to "put an eligible
claimant in the position that [the claimant] would have occupied had no

26
violation occurred." U.C.C. § 9-625 cmt. 3. But the comment further
provides that U.C.C. section 9-625 is supplemented by "principles of tort
law." Id. Moreover, the comment indicates that double recoveries are
prohibited "to the extent that damages in tort compensate the debtor for the
same loss dealt with by . . . [Article 9]," id., which is telling for the present
purposes since a double recovery would not be possible unless the
underlying tort and wrongful repossession claims were both premised on a
breach of the peace.
The clarification provided by this comment has led one legal
scholar to observe that the U.C.C. anticipates eligible claimants being able
to recover damages in tort for violations of Article 9, with the secured party's
potential liability only being limited by the nature and number of tort
claims in the relevant jurisdiction. See 4 James J. White et al., Uniform
Commercial Code § 34:44 (6th ed. 2015). The principle significance of this
dual claim approach is that debtors may recover punitive damages by way
of tort claims that are unavailable through a statutory claim under statutes
deriving from U.C.C. section 9-625. Id.
Thus, we conclude that U.C.C. section 9-625 as codified in NRS
104.9625 is not an exclusive remedy for debtors to seek recovery of damages
for a wrongful repossession. Given that debtors and other eligible claimants
are not limited to statutory damages, parties who are not entitled to
statutory damages, like the Droges, should also be afforded the opportunity
to plead tort claims to seek recovery based on a breach of the peace theory,
as the Droges did here. And although Nevada courts have not expressly
addressed this issue, other courts have permitted parties similarly situated
to the Droges to do exactly that. For example, while the court in Griffith v.
Valley of the Sun Recovery & Adjustment Bureau, Inc., concluded that an

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innocent bystander who was shot during a self-help repossession could not
establish negligence per se based on a violation of a self-help repossession
statute, the court further explained that the secured party was responsible
for any torts committed during the repossession and that a jury question
remained as to whether the secured party was liable for negligence based
on the "explosive atmosphere created during the repossession, which is
essentially a breach of the peace theory. 613 P.2d 1283, 1284-86 (Ariz. Ct.
App. 1980). Likewise, in Salisbury Livestock Co. v. Colorado Central Credit
Union, 793 P.2d 470, 471, 475 (Wyo. 1990), the court permitted a corporate
plaintiff that stored a debtor's vehicle on its property to proceed with a
trespass claim against a secured party defendant based on a breach of the
peace theory.
Based on the foregoing analysis, we conclude that NRS
104.9625 does not provide an exclusive remedy for injuries stemming from
a breach of the peace during a self-help repossession. See NRS 104.1103(1)
(providing that Nevada's U.C.C. should be liberally construed and applied
"[t] o make uniform the law among the various jurisdictions"); Newmar
Corp. v. McCrary, 129 Nev. 638, 641, 309 P.3d 1021, 1024 (2013)
(recognizing that NRS 104.1103 provides guidance for how to construe
Nevada's U.C.C.). Thus, regardless of whether a plaintiff is entitled to bring
a claim under NRS 104.9625, the plaintiff may seek to recover through tort-
based claims arising from an alleged breach of the peace.
B.
A question remains, however, as to whether the Droges alleged
sufficient facts to state claims based on their breach of the peace and
trespass theories in light of the reasonable time and manner standard that
we adopted above as well as Nevada's liberal notice pleading standard. W.

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(0) 1947H 41.1L,
States Constr., Inc. v. Michoff, 108 Nev. 931, 936, 840 P.2d 1220, 1223 (1992)
(explaining that, because Nevada is a notice-pleading state, courts in
Nevada "liberally construe pleadings to place into issue matters which are
fairly noticed to the adverse party" (internal quotation marks omitted)).
This standard "requires plaintiffs to set forth the facts which support a legal
theory, but does not require the legal theory relied upon to be correctly
identified." Liston v. Las Vegas Metro. Police Dep't, 111 Nev. 1575, 1578,
908 P.2d 720, 723 (1995) (footnote omitted). "A plaintiff who fails to use the
precise legalese in describing his grievance but who sets forth the facts
which support his complaint thus satisfies the requisites of notice pleading."
Id.
In the instant case, the Droges alleged in their complaint that
Romans and Shupp entered their property and refused to leave when told
to do so, and they described these actions as a trespass in their pleadings.
For purposes of Nevada's notice-pleading standard, such allegations provide
sufficient notice that the Droges sought to recover damages for Romans and
Shupp breaching the peace and trespassing on their land during the
attempted repossession. See id. (holding that notice to the defending party
is adequate when a complaint "set[s] forth sufficient facts to demonstrate
the necessary elements of a claim for relief[J" such that the "nature of the
claim and relief sought" are apparent); NRCP 8(a)14 (requiring that

14The Nevada Rules of Civil Procedure were amended effective
March 1, 2019. See In re Creating a Comm. to Update & Revise the Nev.
Rules of Civil Procedure, ADKT 0522 (Order Amending the Rules of Civil
Procedure, the Rules of Appellate Procedure, and the Nevada Electronic
Filing and Conversion Rules, December 31, 2018). The amendments do not
affect the disposition of this appeal, however, because they were enacted
after the district court entered the challenged orders. Nonetheless, we note
that we cite the prior version of the rules herein.
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pleadings contain "a short and plain statement of the claim showing that
the pleader is entitled to relief).
Indeed, the Droges allegations demonstrated that they would
seek to prove that Romans and Shupp acted in an unreasonable manner
during the attempted repossession, which as discussed above, is what the
Droges mu.st establish to demonstrate that a breach of the peace occurred.
See Restatement (Second) of Torts 198(1) ("One is privileged to enter land
in the possession of another, at a reasonable time and in a reasonable
manner, for the purpose of removing a chattel . . . ."). Specifically, the
Droges' allegations support that they sought to recover for Romans' and
Shupp's failure to leave their property when asked, which is what the
Droges must establish to demonstrate trespass in the breach of the peace
context. See Lied v. Cty. of Clark, 94 Nev. 275, 279, 579 P.2d 171, 173-74
(1978) (providing that a trespass claim requires the invasion of a property
right). And these allegations were not mere background information in the
Droges' amended complaint that could easily be overlooked, but instead, the
allegations formed the basis for the vast majority of the claims in their case.
This is presumably why Romans and Shupp have defended against the
Droges' claims, both below and on appeal, by asserting that their conduct
was privileged under NRS 104.9609, and why they conducted discovery
relevant to these issues below.1-5

15Romans even retained a repossession expert who opined as to what
constitutes a breach of the peace for purposes of NRS 104.9609. Overall,
given Romans' and Shupp's topics of inquiry during discovery, it appears
that they both recognized that breach of the peace and trespass were at
issue in this case.

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40) 1947K eV*.
Thus, given that NRS 104.9625 is nonexclusive and that the
facts in the Droges complaint were sufficient to satisfy Nevada's notice-
pleading standard with respect to their breach of the peace and trespass
theories, we conclude that the Droges properly stated tort claims based on
these theories.16 In deciding this, we specifically distinguish this case from
Sprouse v. Wentz, 105 Nev. 597, 602, 781 P.2d 1136, 1139 (1989), where the
plaintiff did not plead wrongful repossession and the supreme court
concluded that, although he pleaded relevant "scattered facts" in the context
of his other claims, those facts were insufficient to give notice of a wrongful
repossession cause of action. Here, the facts contained in the Droges'
complaint relevant to breach of the peace and trespass were not "scattered,"
but indeed formed the underpinnings of all of the Droges' tort claims. To be
sure, these facts were so engrained in the Droges' complaint that, under
Nevada's notice-pleading standard, the Droges' allegations concerning the
attempted self-help repossession are sufficient to maintain common law
claims for wrongful repossession based on a breach of the peace and for
trespass, notwithstanding the fact that the Droges did not label them as
separate claims in their complaint. As a result, Romans' and Shupp's
assertion that the issues of breach of the peace and trespass are not properly
before this court fails.

16As an additional basis for our conclusion that NRS 104.9625 did not
preclude the Droges from embedding their breach of the peace and trespass
theories in these claims, we note that Romans and Shupp have never argued
that NRS 104.9625 is an exclusive remedy, and as a result, they waived any
such argument. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d
981, 983 (1981) ("A point not urged in the trial court . . . is deemed to have
been waived and will not be considered on appeal."); see also Powell v.
Liberty Mut. Fire Ins. Co., 127 Nev. 156, 161_ n.3, 252 P.3d 668, 672 n.3
(2011) (providing that arguments not raised on appeal are waived).
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VIII.
We next turn to the question of whether summary judgment
was warranted on the entirety of the Droges amended complaint, even
though, as discussed above, genuine issues of material fact remain
regarding whether Romans and Shupp breached the peace during the
attempted repossession.
A.
As a preliminary matter, we point out that the district court
failed to set forth the undisputed material facts and legal determinations
on which it relied in reaching its decision to grant summary judgment. See
NRCP 56(c) (requiring summary judgment orders to include "the
undisputed material facts and legal determinations" on which the district
court relied); see also ASAP Storage, Inc. v. City of Sparks, 123 Nev. 639,
656-57, 173 P.3d 734, 746 (2007) (reversing and remanding a portion of a
district court order granting summary judgment because it did not set forth
the undisputed material facts and legal determinations supporting the
court's decision). Nevertheless, because one of the Droges' tort claims fails
as a matter of law, and since the Droges have waived any challenge to the
summary judgment on certain of their other tort claims, we affirm the entry
of summary judgment on those claims.
B.
We affirm the summary judgment against the Droges on the
negligent hiring portion of their negligent hiring, training, and supervision
claim and the portion of James's malicious prosecution claim that was
directed at Romans, as the Droges have expressly waived any challenge to
those decisions on appeal. We also affirm the summary judgment on the
Droges' claim for negligent performance of an undertaking, as the Droges

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(01 194711 03601s,
failed to meaningfully address Romans and Shupp's arguments in support
of the district court's decision on this claim in either their opening or reply
briefs, and as a result, they waived any challenge thereto. See Colton v.
Murphy, 71 Nev. 71, 72, 279 P.2d 1036, 1036 (1955) (concluding that when
respondents' argument was not addressed in appellants' opening brief, and
appellants declined to address the argument in a reply brief, "such lack of
challenge cannot be regarded as unwitting and in our view constitutes a
clear concession by appellants that there is merit in respondents' position").
Finally, with respect to the Droges' claim for NIED, which they
asserted on Cynthia's behalf, we affirm the summary judgment in Romans'
and Shupp's favor. Where a defendanes negligence causes a third party's
death or serious injury, and a plaintiff who is related to the third party
perceives the death or serious injury and suffers emotional distress causing
physical manifestations as a result, the plaintiff may recover for NIED. See
State, Dep't of Transp. v. Hill, 114 Nev. 810, 815, 963 P.2d 480, 483 (1998),
overruled on other grounds by Grotts v. Zahner, 115 Nev. 339, 341, 989 P.2d
415, 416 (1999). In this case, there is no evidence James suffered any injury
during the attempted repossession efforts. Therefore, Cynthia could not
have suffered any emotional distress as a result, and summary judgment
was appropriate on this claim.
C.
With the exception of the foregoing, we reverse summary
judgment as to the remainder of the Droges' tort claims. Again, the
deficiencies in the district court's summary judgment orders prevent us
from fully considering the propriety of the court's decisions with respect to
these remaining claims. See NRCP 56(c); ASAP Storage, 123 Nev. at 656-
57, 173 P.3d at 746. Nonetheless, as discussed above, the record

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demonstrates that genuine issues of material fact remain with respect to
the breach of the peace and trespass theories that underpin the Droges'
claims, including questions concerning when the Droges objected to the
attempted repossession, how Romans and Shupp responded to the objection,
and whether the attempted repossession resulted in a violent incident. And
insofar as the district court entered summary judgment based on a
determination that no genuine issues of material fact remained on the
breach of the peace issue, its decision was erroneous.17
D.
Despite our decision to reverse the summary judgment on the
Droges remaining claims, we take this opportunity to provide guidance on
three of these claims. Although summary judgment was warranted with
respect to the Droges' NIED claim, the same is not true of the Droges' IIED
claim, which differs from NIED claims in that a plaintiff need not establish
that he or she apprehended a relatives death or serious injury to recover
for the emotional distress caused by a defendant's extreme and outrageous

17Whi1e Romans and Shupp vociferously defend the summary
judgment in their favor by asserting that the Droges did not suffer physical
injury damages, it is notable that the Droges have tort claims for which
physical injury damages are not a requirement. For example, by way of
their trespass claim, the Droges can pursue nominal damages or even
damages for annoyance and discomfort. See Land Baron Invs., Inc. v.
Bonnie Springs Family Ltd. Pship, 131 Nev. 686, 700, 356 P.3d 511, 521
(2015) (recognizing that a plaintiff asserting a trespass claim may recover
damages for annoyance and discomfort); Parkinson v. Winniman, 75 Nev.
405, 408, 344 P.2d 677, 678 (1959) (concluding that a nominal damages
award was appropriate in the context of a trespass claim).

34
conduct.18 Compare Hill, 114 Nev. at 815, 963 P.2d at 483 (discussing the
elements of a NIED claim, including the requirement that the plaintiff
"apprehend[ 1 the death or serious injury of a loved one" (emphasis and
internal quotation marks omitted)), with Olivero v. Lowe, 116 Nev. 395, 398,
995 P.2d 1023, 1025 (2000) (setting forth the elements of an I1ED claim).
Under the facts and circumstances of this case, questions of fact remain as
to the extremeness and outrageousness of Romans and Shupp's conduct
during their repossession efforts and the Droges suffering extreme
emotional distress as a result.
With respect to the Droges' malicious prosecution claim that
was asserted on James's behalf against Shupp, a defendant may be liable
for malicious prosecution if criminal proceedings were commenced based on
the defendant's "direction, request, or pressure," unless the prosecutor
made an independent determination to commence the criminal proceeding.
See Lester v. Buchanen, 112 Nev. 1426, 1429, 929 P.2d 910, 913 (1996)
(internal quotation marks omitted). This independent determination rule
does not apply, however, if the defendant did not believe the information
provided to authorities to be true since "an intelligent exercise of the
officer's discretion [is] impossible" when a witness knowingly provides false

18Additionally, although a plaintiff must suffer a physical
manifestation of his or her emotional distress to prevail on an NIED claim,
the supreme court has recognized that a plaintiff is not necessarily required
to establish a physical manifestation to state an IIED claim, provided that
the defendant's conduct is sufficiently extreme and outrageous. See
Chowdhry v. NLVH, Inc., 109 Nev. 478, 483, 851 P.2d 459, 462 (1993)
(comparing and contrasting the physical manifestation requirement of
NIED and IIED claims and observing that, in the context of an IIED claim,
"[Ole less extreme the outrage, the more appropriate it is to require
evidence of physical injury or illness from the emotional distrese (alteration
in original) (internal quotation marks omitted)).
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information. Restatement (Second) of Torts § 653 cmt. g (Am. Law Inst.
1977); see also Lester, 112 Nev. at 1429, 929 P.2d at 912-13 (applying the
Second Restatement's approach to malicious prosecution claims and
providing that a defendant is only shielded by the independent
determination rule if the defendant provided information that he or she
believed to be true). And because the parties dispute whether James hit
Shupp with Russell's truck, this raises the possibility that Shupp falsely
reported that James did so, when he knew this not to be true. Thus, genuine
issues of material fact remain with respect to whether the district attorney
could intelligently exercise discretion to prosecute James in a manner that
would shield Shupp from liability.
Finally, turning to the Droges claim for punitive damages, we
note that punitive damages is a remedy, not a cause of action. 22 Am. Jur.
2d Damages § 567 (2013) ("[A]s a rule, there is no cause of action for punitive
damages by itself; a punitive-damage claim is not a separate or independent
cause of action." (footnote omitted)). However, if the Droges can establish
that Romans and Shupp acted with oppression, fraud, or malice during the
attempted repossession, then they may be able to recover punitive damages.
See Bongiovi v. Sullivan, 122 Nev. 556, 581, 138 P.3d 433, 450-51 (2006)
(providing that punitive damages may be awarded to a plaintiff who
establishes by clear and convincing evidence that the defendant acted with
"oppression, fraud or malice, [either] express or implied" (internal quotation
marks omitted)); see also Wolf v. Bonanza Inv. Co., 77 Nev. 138, 143, 360,
P.2d 360, 362 (1961) (reasoning that, without a judgment for actual
damages, a judgment for exemplary damages cannot be valid).

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IX.
In sum, pursuant to NRS 104.9609, secured parties may carry
out self-help repossessions on private property provided that they do so
without breaching the peace. A breach of the peace occurs when a secured
party performs a self-help repossession that is not reasonable in time or
manner. To determine whether a repossession is reasonable in time or
manner, courts should consider the general principles set forth in this
opinion, as they reflect a common understanding among jurisdictions as to
what conduct rises to the level of a breach of the peace.
In the present case, genuine issues of material fact remain for
the trier of fact with respect to almost everything about the attempted
repossession, including whether the Droges objected to the attempted
repossession from the outset and whether the attempted repossession
resulted in violence. Thus, taking the facts of this case in the light most
favorable to the Droges, the district erred to the extent that it concluded
that the factual circumstances did not constitute a breach of the peace and
trespass as a matter of law when, as reflected in the general principles set
forth above, a trier of fact could conclude otherwise based on the disputed
facts.
Finally, we affirm the entry of summary judgment against the
Droges on their claims for malicious prosecution (against Romans only),
negligent hiring, negligent performance of an undertaking, and NIED
because these claims have either been waived by the Droges or fail as a
matter of law. However, with respect to the Droges remaining claims,
genuine issues of material fact remain. Thus, we reverse the entry of

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summary judgment on these claims and remand for further proceedings
consistent with this opinion.

L J.
Bulla

We concur:

J
"

J.
Tao

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