Saticoy Bay, Llc, Ser. 6212 Lumber River Vs. Pecos-Park Sunflower Hoa

• Court: Nevada Supreme Court
• Decided: September 16, 2021
• Docket: 81679
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF NEVADA

SATICOY BAY LLC SERIES 6212 No. 81679 LUMBER RIVER, A NEVADA LIMITED LIABILITY COMPANY, Appellant, vs. PECOS-PARK SUNFLOWER FILED HOMEOWNERS ASSOCIATION, A SEP 1 2021 DOMESTIC NON-PROFIT 4.. BROWN CORPORATION, CLE EWE C RT

BY Res ondent. EPUTY CLERK

ORDER OF AFFIRMANCE This is an appeal from a district court order granting a motion to dismiss in a tort action. Eighth Judicial District Court, Clark County; Elizabeth Goff Gonzalez, Judge.' Having considered the parties' arguments and the record, we conclude that the district court properly dismissed appellant's complaint. See Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008) (reviewing de novo a district court's NRCP 12(b)(5)

'Pursuant to NRAP 34(f)(1), we have determined that oral argument is not warranted in this appeal.

SUPREME COURT OF NEVADA

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- .• : •••-•.;Y:t ..!.. dismissal and recognizing that dismissal is appropriate when "it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [the plaintiff] to relief'). In particular, appellant's claims for misrepresentation and breach of NRS 116.1113 fail because respondent had no duty to proactively disclose whether a superpriority tender had been made.2 Cornpare NRS 116.31162(1)(b)(3)(II) (2017) (requiring an HOA to disclose if tender of the superpriority portion of the lien has been made), with NRS 116.31162 (2005)3 (not requiring any such disclosure); see Halcrow, Inc. v. Eighth Judicial Dist. Court, 129 Nev. 394, 400, 302 P.3d 1148, 1153 (2013) (providing the elements for a negligent misrepresentation claim, one of which is "supply[ing] false information" (internal quotation marks omitted)); Nelson v. Heer, 123 Nev. 217, 225, 163 P.3d 420, 426 (2007) (providing the elements for an intentional misrepresentation claim, one of which is making "a false representation"). Finally, because respondent did not do anything unlawful, appellant's civil conspiracy claim necessarily fails. See Consol. Generator- Nev., Inc. v. Cummins Engine Co., 114 Nev. 1304, 1311, 971 P.2d 1251, 1256 (1998) (providing that a civil conspiracy requires, among other things, a

2A1though appellant frames the issue as whether respondent had a duty to disclose "after reasonable inquiry," appellant's complaint does not allege that such an inquiry was made in this case. Relatedly, although appellant contends that it relied upon the recitals in the foreclosure deed, the recitals did not represent one way or the other whether a superpriority tender had been made.

3This was the version of the statute in place at the time of the foreclosure sale.

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. • Ak"...- "" c, concerted action, intend[ed] to accomplish an unlawful objective for the purpose of harming another"). Accordingly, we ORDER the judgment of the district court AFFIRMED.4

Hardesty

Al;t•SY;i--° Sr.J. Stiglich

cc: Hon. Elizabeth Goff Gonzalez, District Judge Charles K. Hauser, Settlement Judge Roger P. Croteau & Associates, Ltd. Leach Kern Gruchow Anderson Song/Las Vegas Eighth District Court Clerk

4 The Honorable Mark Gibbons, Senior Justice, participated in the

decision of this matter under a general order of assignment.

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