Brown v. Kellar

636 P.2d 874, 97 Nev. 582, 1981 Nev. LEXIS 592

• Court: Nevada Supreme Court
• Decided: November 30, 1981
• Docket: 12741
• Status: Published

Opinion

OPINION

Per Curiam:

Appellant brought suit in district court against, among other defendants, respondent Kellar. Respondent moved to dismiss the complaint against him on the grounds that he could not be held individually liable for the actions alleged in the complaint and because enforcement of the agreement would violate the statute of frauds. The district court construed the motion as a motion to dismiss for failure to state a claim upon which relief could be granted, NRCP 12(b)(5), and granted the motion.

On a motion to dismiss for failure to state a claim for relief, the trial court and this court must construe the pleading liberally and draw every fair intendment in favor of the plaintiff. Merluzzi v. Larson, 96 Nev. 409, 610 P.2d 739 (1980). Allegations in the complaint must be accepted as true. San Diego Prestressed v. Chicago Title Ins., 92 Nev. 569, 555 P.2d 484 (1976).

NRCP 8(a) requires that a pleading contain only a short and plain statement showing that the pleader is entitled to relief. In actions involving fraud, the circumstances of the fraud are required by NRCP 9(b) to be stated with particularity. The circumstances that must be detailed include averments to the time, the place, the identity of the parties involved, and the nature of the fraud or mistake. 5 Wright and Miller, Federal Practice and Procedure § 1297 at p. 403 (1969). Malice, intent, knowledge and other conditions of the mind of a person may be averred generally. NRCP 9(b); see Occhiuto v. Occhiuto, 97 Nev. 143, 625 P.2d 568 (1981).

Application of these rules to this case reveals a complaint which is sufficient as against Keilar. The complaint alleges, among other things, that Keilar acted individually and on behalf of a corporation in fraudulently misrepresenting the condition of property being sold to appellant. Accepting all allegations as true, the complaint states at least one claim against Keilar upon which relief could be granted. Accordingly, we reverse the order of the district court dismissing the complaint against respondent, and we remand this matter to the district court for further proceedings.