Saticoy Bay, Llc, Ser. 8320 Bermuda Beach Vs. S. Shores Cmty. Ass'N

IN THE SUPREME COURT OF THE STATE OF NEVADA

SATICOY BAY, LLC, SERIES 8320 No. 80165 BERMUDA BEACH, A NEVADA LIMITED LIABILITY COMPANY, Appellant, •:-.a il 1:: _ :; :- .:- :.: vs. SOUTH SHORES COMMUNITY ASSOCIATION; AND TERRA WEST OCT *V 2020 COLLECTIONS GROUP, LLC, D/B/A 1=1::.• .7' - LIAM ASSESSMENT MANAGEMENT BY- ErPUTYCLLKti SERVICES, Res ondents.

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; Joseph T. Bonaventure, Senior 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) 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 respondents had no duty to proactively disclose whether a superpriority tender had been

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

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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 (2013)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 u. 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"). Similarly, and assuming without deciding that NRS Chapter 113 applies to NRS Chapter 116 sales, NRS 113.130 requires a seller to disclose "defect[s]," not superpriority tenders.4 NRS 113.100 defines "Defect" as "a condition that materially affects the value or use of residential property in an adverse manner." To the extent that a deed of trust could

2A1though appellant's complaint alleges generally that appellant had a "pattern and practice" of "attempt[ing] to ascertain whether anyone had attempted to or did tender any payment," the complaint does not allege that appellant specifically asked respondents whether a superpriority tender had been made in this case, much less that respondents misrepresented that a superpriority tender had not been made. Relatedly, although appellant contends that it relied upon the recitals in the foreclosure deed, the recitals made no representation 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.

4We agree with respondent South Shores Community Association's arguments that applying NRS Chapter 113 to NRS Chapter 116 sales seems nonsensical, but we also recognize appellant's competing arguments that NRS Chapter 113 does not exclude NRS Chapter 116 sales and that NRS 113.100(5)s definition of "SeHee is expansive.

SUPREME COURT OF NEVADA 2 (0) 1947A 4441111,3

conceivably constitute a "condition," we note that the subject property technically has the same "value regardless of whether it is encumbered by the deed of trust.5 Finally, because respondents 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 "concerted action, intend[ed] to accomplish an unlawful objective for the purpose of harming anothee). Accordingly, we ORDER the judgment of the district court AFFIRMED.

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cc: Chief Judge, The Eighth Judicial District Court Hon. Joseph T. Bonaventure, Senior Judge William C. Turner, Settlement Judge Roger P. Croteau & Associates, Ltd. McDonald Carano LLP/Las Vegas Leach Kern Gruchow Anderson Song/Las Vegas Eighth District Court Clerk

5Nor are we persuaded that the Seller's Real Property Disclosure Form would require disclosure of a superpriority tender.