Pletcher v. Boulevard Theater, LLC C/W 66732 ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
MITCHELL PLETCHER, AN No. 66196
INDIVIDUAL,
Appellant,
vs.
BOULEVARD THEATER, LLC, A
NEVADA LIMITED LIABILITY FILED
COMPANY; FX LUXURY LAS VEGAS I,
LLC, A NEVADA LIMITED LIABILITY APR 1 5 2016
COMPANY; URBAN RETAIL eLE TRRACFIEL pLiR
tN.C1EMA N,
EIWE COURT
PROPERTIES, LLC, A DELAWARE . \
DEPUTY CLERK
LIMITED LIABILITY COMPANY;
RICHARD WEISIVIAN, AN
INDIVIDUAL; SHIRIN WEISMAN, AN
INDIVIDUAL; PAUL M. SULLIVAN, AN
INDIVIDUAL; AND TOMMY
RICCARDO, AN INDIVIDUAL,
Respondents.
MITCHELL PLETCHER, AN No. 66732
INDIVIDUAL.
Appellant,
vs.
BOULEVARD THEATER, LLC, A
NEVADA LIMITED LIABILITY
COMPANY; FX LUXURY LAS VEGAS I,
LLC, A NEVADA LIMITED LIABILITY
COMPANY; URBAN RETAIL
PROPERTIES, LLC, A DELAWARE
LIMITED LIABILITY COMPANY;
RICHARD WEISMAN, AN
INDIVIDUAL; SHIRIN WEISMAN, AN
INDIVIDUAL; AND PAUL M.
SULLIVAN, AN INDIVIDUAL,
Respondents.
ORDER OF AFFIRMANCE
These are pro se consolidated appeals from an order granting
motions to dismiss that was certified as final under NRCP 54(b) and an
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order awarding attorney fees and costs. Eighth Judicial District Court,
Clark County; Mark R. Denton, Judge.
The district court dismissed appellant's first breach of contract
complaint as to respondents FX Luxury Las Vegas I, LLC, Urban Retail
Properties, LLC, Richard Weisman, Shirin Weisman, and Paul Sullivan,
and also denied appellant's request for leave to amend the complaint.
Thereafter, appellant filed a second complaint in a separate action, which
the district court then consolidated with the first action and dismissed the
second complaint as to those respondents. The district court also awarded
FX and Urban $15,000 each in attorney fees based on their offer of
judgment. These appeals followed.
Having considered the parties' arguments and the record on
appeal, we conclude that the district court properly dismissed appellant's
first complaint because he failed to state a claim upon which relief could
be granted as to FX, Urban, the Weismans, and Sullivan. Buzz Stew, LLC
v. City of N. Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008)
(explaining that this court rigorously reviews a decision to dismiss a
complaint under NRCP 12(b)(5) de novo with all alleged facts in the
complaint presumed true and all inferences drawn in favor of the
complaint). Specifically, FX, Urban, the Weismans, and Sullivan had not
entered into a contract with appellant since the letter of intent, by its own
terms, was not a contract, and they were not parties to any other contract
with appellant. See Albert H. Wohlers & Co. v. Bartgis, 114 Nev. 1249,
1262, 969 P.2d 949, 959 (1998) ("no one is liable upon a contract except
those who are parties to it" (internal quotation omitted)); Hilton Hotels
Corp. v. Butch Lewis Prods., Inc., 107 Nev. 226, 232-33, 808 P.2d 919, 922-
23 (1991) (describing the covenant of good faith and fair dealing).
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Further, Urban was acting as FX's agent and appellant failed
to plead facts alleging that the Weismans or Sullivan were the alter egos
of Boulevard Theater, LLC, and thus, these respondents could not be held
liable. See Swartout v. Grover Collins Drilling Mud Eng'rs and Materials,
75 Nev. 297, 300, 339 P.2d 768,789 (1959) ("An agent who, acting within
the scope of his authority, enters into contractual relations for a disclosed
principal, does not bind himself, in the absence of an express agreement to
do so . ." (internal quotation omitted)); Polaris Indus. Corp. v. Kaplan,
103 Nev. 598, 601, 747 P.2d 884, 886 (1987) (describing the requirements
to establish an alter ego claim). Additionally, appellant failed to plead the
fraud-based claims with particularity, NRCP 9(b), and because appellant
provided his $20,000 deposit to Boulevard Theater, LLC, that money could
not have been converted by FX, Urban, the Weismans, and Sullivan. See
Evans v. Dean Witter Reynolds, Inc., 116 Nev. 598, 606, 5 P.3d 1043, 1048
(2000) (explaining conversion).
The district court also did not abuse its discretion by denying
appellant's motion for leave to amend the first complaint because he never
provided the court with a proposed amended complaint as an attachment
to his request. See EDCR 2.30 (requiring a motion for leave to amend the
complaint to be accompanied by a proposed amended complaint); Allam v.
Valley Bank of Nev., 109 Nev. 280, 287, 849 P.2d 297, 302 (1993)
(explaining that this court reviews the denial of a motion for leave to
amend a complaint for an abuse of discretion); see also Gardner v.
Martino, 563 F.3d 981, 991 (9th Cir. 2009) (explaining that where a local
rule requires the attachment of a proposed amended complaint to a
request for leave to amend, it is within the district court's discretion to
deny the request based on the party's failure to attach the proposed
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pleading). While appellant argues that he did not have to provide the
court with a proposed amended complaint because he made his motion
orally, the record demonstrates that appellant made the request in writing
and failed to include the requisite attachment with either his written
request or subsequent motions for reconsideration.
Additionally, the district court properly dismissed appellant's
second complaint because it was barred by claim preclusion. Five Star
Capital Corp. v. Ruby, 124 Nev. 1048, 1054, 194 P.3d 709, 713 (2008); see
G.C. Wallace, Inc. v. Eighth Judicial Dist. Court, 127 Nev. 701, 705, 262
P.3d 1135, 1137 (2011) (explaining that this court reviews the application
of claim preclusion de novo). And, because the district court properly
considered the Beattie v. Thomas, 99 Nev. 579, 588-89, 668 P.2d 268, 274
(1983), and Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349, 455
P.2d 31, 33 (1969), factors in awarding attorney fees to FX and Urban and
also decreased the awards based on the questionable reasonableness of the
amount of their offer of judgment, the district court did not abuse its
discretion in awarding FX and Urban $15,000 each in attorney fees.
Gunderson v. D.R. Horton, Inc., 130 Nev., Adv. Op. 9, 319 P.3d 606, 615
(2014) (explaining that this court reviews an award of attorney fees for an
abuse of discretion). Accordingly, we
ORDER the judgments of the district court AFFIRMED.
cao
i
/ A-2 , J.
Douglas
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cc: Hon. Mark R. Denton, District Judge
Mitchell Pletcher
The Williamson Law Office, PLLC
McDonald Carano Wilson LLP/Reno
Dickinson Wright PLLC
McDonald Carano Wilson LLP/Las Vegas
Caruso Law Offices
Eighth District Court Clerk
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