Mcclure v. Stiles ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
JEFFREY A. MCCLURE, No. 82382
INDIVIDUALLY AND AS CO-TRUSTEE
OF THE MCCLURE FAMILY LIVING
TRUST; AND DARCEL JONAY
MCCLURE. INDIVIDUALLY AND AS NLEV
CO-TRUSTEE OF THE MCCLURE
FAMILY LIVING TRUST, JAN I 3 2022
Appellants, A. SROVONI
PREME COURT
vs.
CLERK
DAVID R. STILES, AN INDIVIDUAL;
AND KELLY RODRIQUES, AN
INDIVIDUAL,
Respondents.
ORDER OF AFFIRMANCE
This is an appeal from a district court order dismissing claims
in a real-property matter. Ninth Judicial District Court, Douglas County;
Thomas W. Gregory, Judge. Reviewing the dismissal de novo. Dezzani v.
Kern & Assocs., Ltd., 134 Nev. 61, 64, 412 P.3d 56. 59 (2018), we affirm.
In 1947, Clyde Taylor recorded the A. Cohn Tract map, which
subdivided several parcels of land bordering Lake Tahoe_ J.L. and Kathryn
DeLorey owned Lot 3 and conveyed a portion of that lot to Paul Diggle in
1955 (DeLorey-Diggle Deed), which resulted in the DeLoreys retaining a
littoral portion of the property, and Diggle receiving a large plot of land,
including a littoral portion bordering the DeLoreys retained land. The
DeLorey-Diggle Deed contained covenants and restrictions, including, as
relevant here: (1) a building restriction prohibiting either party from
constructing any building, except a boathouse, on a certain portion of beach
frontage (Beachfront Building Restriction): and (2) a permanent easement
allowing Diggle to use the DeLoreys beach for "bathing or boat mooring
purposes'. (Beach-Use Easement). Diggle later built a boathouse as
permitted in the DeLorey-Diggle Deed.
In 1.956, Diggle subdivided his land, conveying a portion to
Zephyr Bejarano (Diggle-Bejarano Deed). This deed included 20
restrictions, covenants, conditions, and easements, all for "the purpose of
regulating the development of Snug Harbor as a whole and for the
protection of each and every individual parcel owner in the future" but did
not contain a Beachfront Building Restriction. It granted Bejarano an
easement to use the entire beach for "bathing and boating purposes." After
subdividing and selling the parcels, Diggle retained the littoral portion of
his land that bordered the DeLoreys' property. In 1962, Diggle recorded a
"Declaration of Restrictione for Snug Harbor that included the same 20
conditions, restrictions, easements, and covenants contained in the Diggle-
Bejarano Deed. The CC&Rs did not include a Beachfront Building
Restriction. Appellants Jeffrey and Darcel McClure purchased the
Bejarano property in 2000.
In 2014, S.F. Pacific, LLC, the then owner of the DeLoreyss
littoral property, and respondent Kelly Rodrigues, the then owner of
Diggles' littoral property, signed and recorded a "Reciprocal Cancellation of
Deed Restriction," which purported to cancel the Beachfront Building
Restriction in the DeLorey-Diggle Deed, while preserving the deed's other
restrictions, covenants, and easements. After recording the cancellation,
Rodrigues conveyed the Diggle property to respondent David Stiles.
The McClures filed their First Amended Complaint (FAC) in
2016, asserting seven claims. At issue in this appeal are claims three
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through seven, in which the McClures sought injunctive relief (claim 3),
alleged nuisance (claim 4), and sought declaratory relief (claim 5), all based
on the assertion that the McClures. Beach-Use Easement to use Snug
Harbor for "bathing and boating/mooring purposes" included the use of
Stiles boathouse. The McClures also sought declaratory relief (claim 6) and
alleged slander of title (claim 7), both based on Rodrigues' cancellation of
the Beachfront Building Restriction. Stiles and Rodrigues filed motions to
dismiss, arguing that (1) the Beach-Use Easement did not allow the
McClures to use the boathouse, thus requiring dismissal of claims three
through five; and (2) the McClures lacked standing to enforce the
Beachfront Building Restriction, requiring dismissal of claims six and
seven. The district court granted the motions to dismiss, concluding that
the McClures did not have an easement to use the boathouse and that they
lacked standing to enforce the Beachfront Building Restriction, as they were
not third-party beneficiaries, and the common-scheme doctrine was
inapplicable.
The Beach-Use Easement does not include use of the boathou.se
The McClures argue that the easement allowing them to use
the beach for "boating purposee necessarily includes using the boathouse
because (1) the boathouse existed before the easement's creation, (2) Diggle
did not "carve our boathouse use from the easement, and (3) storing boating
equipment in the boathouse is a "reasonable interpretation" of "boating
purposes." We disagree. See City of Las Vegas v. Cliff Shadows Prof? Plaza,
L.L.C., 129 Nev. 1, 7, 293 P.3d 860, 863 (2013) (observing that the
interpretation and legal effect of the document creating an express
easement is subject to de novo review). While we draw every reasonable
inference in the McClure& favor in reviewing the dismissal, Sanchez v. Wal-
Mart Stores, Inc., 125 Nev. 818, 823, 221 P.3d 1276, 1280 (2009), we need
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or mi7A
not accept as true allegations contradicted by exhibits attached to the
plaintiff s complaint, see Breliant v. Preferred Equities Corp., 109 Nev. 842,
847, 858 P.2d 1258, 1261 (1993) CIA] court may take into
ac:count . . exhibits attached to the complaint when ruling on a rnotion to
dismiss for failure to state a claim upon which relief can be granted.").
The easement created by the DeLorey-Diggle Deed and
extended by the Diggle-Bejarano Deed does not allow the McClures to use
Stiles boathouse, as it does not include the word "boathouse," nor does it
grant the McClures use of the boathouse. See Cliff Shadows Prof/ Plaza,
129 Nev. at 11, 293 P.3d at 866 (The scope of an easement is defined by the
terms of the instrument creating it."). The McClures contend that a
reasonable interpretation of the easement includes storing boating
equipment because doing so is necessary for boating purposes, such as
la unching. but nothing in the factual content of their complaint supports
drawing that inference_ At least one court addressing this precise issue has
concluded otherwise and we agree with its reasoning. See Ezikovich v.
Linden, 618 A.2d 570, 573 (Conn. App. Ct. 1993) (concluding that an
easement allowing the respondent to use a river front portion of property
"for general boating purposes" did not allow the respondent to build a
storage rack to hold boating equipment on the river because the storage
rack "merely serve[sl to store the rowing shells" and is not needed "to launch
or use the shells safely for the purposes of boatine). Further, the McClures
tacitly conceded that the boathouse is not necessary to engage in boating
purposes by acknowledging that they usually carry boating equipment to
the beach. Accordingly, the district court properly concluded that the
Beach-Use Easement does not allow the McClures to use Stiles' boathouse.
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The 1VIcelures arguments to the contrary are unpersuasive.
First. the fact that the boathouse existed before the easement's creation, yet
was not explicitly excluded in the easement, supports Stiles' interpretation
that the easement does not include using the boathouse_ See Cliff Shadows
Pro/7 Plaza, 129 Nev. at 12, 293 P.3d at 867 ("In general, the scope of an
easement is strictly construed in favor of the landowner," and la] party is
privileged to use another's land only to the extent expressly allowed by the
easement." (quoting S.O.C., Inc. v. Mirage Casino-Hotel, 117 Nev. 403. 408.
23 P.3d 243. 247 (2001)). Second, accepting the factual allegations in the
complaint as true, they do not show that the McClures are precluded from
using the full Snug Harbor Beach unless they are allowed to use the
boathouse. .See Sanchez, 125 Nev. at 823, 221 P.3d at 1280 (observing that
"[factual] allegations must be legally sufficient to constitute the elements of
the claim asserted"). Because the McClures' Beach-Use Easement does not
allow them to use Stiles' boathouse, the district court correctly granted
respondents' motions to dismiss as to the third, fourth, and fifth claims.
Th.e McClures lack standing to pursue their claims regarding the Beachfront
Building Restriction
The McClures argue they have standing to pursue their sixth
and seventh claims under either the third-party beneficiary doctrine or the
common-scheme doctrine.' On de novo review, Arguello v. Sunset Station,
Inc.. 127 Nev. 365, 368, 252 P.3d 206, 208 (2011), we agree with the district
court's determination that the McClures lack standing to bring claims based
on the Beachfront Building Restriction.
'The McClures do not argue that they have standing to enforce the
covenant as Diggle's or Bejarano's successors in interest.
5
To begin, the McClures are not third-party beneficiaries
because the complaint and attached exhibits do not show a clear intent on
behalf of the DeLoreys to benefit DiggiCs subdividees. See Wood v.
Germann, 130 Nev. 553, 557, 331 P.3d 859, 861 (2014) (recognizing that a
nonparty to a contract only has standing to enforce the contract when the
nonparty is an intended third-party beneficiary). "To assert standing as a
third-party beneficiary to a contract, a plaintiff must show (1) a clear intent
to benefit the third party. and (2) the third party's foreseeable reliance on
the agreement." Boesiger v. Desert Appraisals, L.L.C., 135 Nev. 192, 197.
444 P.3d 436. 441 (2019).
The core of the McClures argument is that the Cohn map
showed that the properties were subdivided before the DeLorey-Diggle
Deed. and thus, the DeLoreys created a general scheme that included the
Beachfront Building Restriction when they included that covenant in the
DeLorey-Diggle Deed. However, the exhibits attached by the McClures to
their FAC belie their argument. While the McClures are correct that the
Cohn map subdivided a large tract of land near Lake Tahoe, the DeLorey-
Diggle Deed shows that the DeLoreys conveyed only a portion of Lot 3 from
the Cohn map to Diggle. Further, the other operative documents, such as
the Diggle-Bejarano Deed and the Snug Harbor CC&Rs, all recognize that
Diggle subdivided the land. For example, the docurnents renewing and
modifying the original CC&Rs explicitly recognized that the signer was "the
owner of one of the seven parcels of land subdivided by Paul Diggle from a
parcel conveyed to hirn by deed . . . on June 13, 1955" (emphasis added).
Diggle did not include a Beachfront Building Restriction in any of the
subdividing documents even though the DeLorey-Diggle Deed included
such a restriction. Moreover, the DeLorey-Diggle Deed did not require
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Diggle to subdivide the land or otherwise mention that Diggle planned to
subdivide the land.
Thus, the FAC and its exhibits do not show a clear intent
between the DeLoreys and Diggle for the Beachfront Building Restriction
to benefit any of Diggle's subdividees, as there is no indication that Diggle
planned to subdivide the property at that time. To the contrary, the exhibits
show a clear intent not to benefit any of the subdividees as Diggle did not
include the Beachfront Building Restriction, or any similar provision, in any
of the subdividing documents. Accordingly, the district court correctly
determined the third-party beneficiary doctrine did not apply.
In addition, while we have not yet adopted the common-scheme
doctrine, assuming without deciding that the doctrine applies, we conclude
it does not provide the McClures standing to enforce the Beachfront
Biulding Restriction. The common-scheme doctrine requires one grantor to
convey multiple lots to multiple grantees. See, e.g.. Maples v. Horton, 80
S.E.2d 38, 41 (N.C. 1954) (explaining that a common scheme exists "[w]here
the owner of a tract of land subdivides it and sells distinct parcels thereof
to separate grantees, imposing restrictions on its use pursuant to a general
plan of development or improvement").
Here, the DeLoreys sold one tract of land to one grantee. That
is insufficient to establish a general scherne, especially in light of the
CC&Rs and deeds showing that Diggle subdivided the land that became the
Snug Harbor Subdivision. Accordingly, the district court correctly
determined that the McClures do not have standing to challenge the
cancellation of the Beachfront Building Restriction, and thus, properly
dismissed the McClures sixth and seventh claims.
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Based on the foregoing, we
OR.DER. the judgment of the district court AFFIRMED.
J.
Silver
Cadish
J.
cc: Hon. Thomas W. Gregory, District Judge
David Wasick, Settlement Judge
Phillip M. Stone
Rollston. Henderson, Crabb & Johnson, Ltd.
Alling & Jillson, Ltd.
Douglas County Clerk
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111 1947A