Saticoy Bay, Llc, Ser. 3123 Inlet Bay Vs. Genevieve Ct. Hoa

IN THE SUPREME COURT OF THE STATE OF NEVADA

SATICOY BAY, LLC, SERIES 3123 No. 80135

r- INLET BAY, Appellant, •_.. P 'il F7, ..' :. vs. GENEVIEVE COURT HOMEOWNERS ASSOCIATION, INC.; TERRA WEST our 1;1 au COLLECTIONS GROUP, LLC, D/B/A CLEM: 'Pr' ASSESSMENT MANAGEMENT EY SERVICE, Res iondents.

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; Kerry Louise Earley, Judge. 1 Having considered the parties argurnents 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); Saavedra-Sandoval v. Wal-Mart Stores, Inc., 126 Nev. 592, 599, 245 P.3d 1198, 1202 (2010) (recognizing that this court may affirm the district court on any ground supported by the record, even if not relied upon by the district court). In particular, appellant's claims for misrepresentation and breach of NRS 116.1113 fail

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

g.so32_

because respondents had no duty to proactively disclose whether a superpriority tender had been made.2 Compare 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 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"). 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. 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 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.4

2Although 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.

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

4 Nor are we persuaded that the Seller's Real Property Disclosure Form would require disclosure of a superpriority tender. SUPREME COURT Of NEVADA 2 (0) 1947A aara

Finally, because respondents did not do anything unlawful, appellant's civil conspiracy claim necessarily fails. See Con.sol. 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.

Gibbons

1/41L6141-/D , Stiglich Silver

cc: Hon. Kerry Louise Earley, District Judge William C. Turner, Settlement Judge Roger P. Croteau & Associates, Ltd. Gibbs Giden Locher Turner Senet & Wittbrodt LLP/Las Vegas McDonald Carano LLP/Las Vegas Eighth District Court Clerk