Vintage Plaza Ltd. v. First American Title Ins. C/W 65697

IN THE SUPREME COURT OF THE STATE OF NEVADA
VINTAGE PLAZA LIMITED, A No. 65697
NEVADA CORPORATION,
Appellant,
vs.
FIRST AMERICAN TITLE INSURANCE
COMPANY, A CALIFORNIA FILED
CORPORATION; FIRST AMERICAN
JAN 1 4 2016
TITLE COMPANY, A CALIFORNIA
CORPORATION; AND FIRST TRACE K. UNDEMAN
7:=
CLERK F:51/PREME COURT
AMERICAN TITLE OF NEVADA, A BY
DEPUT
C*
DISSOLVED AND MERGED NEVADA
CORPORATION,
Respondents.
VINTAGE PLAZA LIMITED, A No. 66219
NEVADA CORPORATION,
Appellant,
vs.
FIRST AMERICAN TITLE INSURANCE
COMPANY, A CALIFORNIA
CORPORATION; FIRST AMERICAN
TITLE COMPANY, A CALIFORNIA
CORPORATION; AND FIRST
AMERICAN TITLE OF NEVADA, A
DISSOLVED AND MERGED NEVADA
CORPORATION,
Respondents.
ORDER AFFIRMING IN PART, VACATING IN PART
AND REMANDING (DOCKET NO. 65697)
AND VACATING (DOCKET NO. 66219)
These are consolidated appeals from a district court summary
judgment in a slander of title action (Docket No. 65697) and a post-
judgment award of attorney fees and costs (Docket No. 66219). Eighth
Judicial District Court, Clark County; Carolyn Ellsworth, Judge.
Docket No. 65697
SUPREME COURT
The district court granted summary judgment on Vintage
OF
NEVADA Plaza's claim for slander of title, concluding that Vintage Plaza had failed
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to present admissible evidence to establish the malice and the special
damages elements of its claim, as well as that the claim was barred by the
statute of limitations. We agree with the district court's conclusion that
Vintage Plaza failed to present admissible evidence to establish the malice
element. 1 See Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598,
602-03, 172 P.3d 131, 134 (2007) ("[I]f the nonmoving party will bear
the burden of persuasion at trial, the party moving for summary
judgment may satisfy the [summary judgment standard] by . . .
pointing out . . . that there is an absence of evidence to support the
nonmoving party's case." (internal quotation omitted)); Wood v.
Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005) (reviewing
de novo a district court's decision to grant summary judgment). In
particular, we agree that Ms. Skinner's failure to conduct a more
thorough investigation did not amount to a "reckless disregard" for
whether the property description at issue was accurate. 2 See Rowland
v. Lepire, 99 Nev. 308, 313, 662 P.2d 1332, 1335 (1983) ("In order to prove
malice it must be shown that the defendant knew that the statement was
false or acted in reckless disregard of its truth or falsity."). Accordingly,
we affirm the district court's summary judgment on Vintage Plaza's
slander of title claim.
We conclude, however, that the district court's NRCP 12(b)(5)
dismissal order was in error, as it did not take into account how Vintage
1We therefore do not consider the remaining bases for the district
court's summary judgment.
the extent that Vintage Plaza argues that the conduct of Ms.
2 To
Skinner, Ms. Seibold, and Ms. Caballero constituted malice, we are not
persuaded by that argument.
SUPREME COURT
OF
NEVADA
2
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Plaza's updated title insurance policy may have affected the viability of
the claims that were dismissed. See Buzz Stew, LLC v. City of N. Las
Vegas, 124 Nev. 224, 228,181 P.3d 670, 672 (2008) (observing that NRCP
12(b)(5) dismissal is appropriate "only if it appears beyond a doubt that
[the plaintiff] could prove no set of facts, which, if true, would entitle it to
relief'). Accordingly, we vacate the district court's NRCP 12(b)(5)
dismissal order and remand this matter for consideration of whether
Vintage Plaza's claims may be viable based on the updated title insurance
policy.
Docket No. 66219
In light of our decision to vacate the district court's NRCP
12(b)(5) dismissal order, we vacate the district court's award of attorney
fees and costs being challenged in Docket No. 66219.
It is so ORDERED.
Hardesty
J. J.
Saitta
cc: Hon. Carolyn Ellsworth, District Judge
Craig A. Hoppe, Settlement Judge
Johnson & Gubler, P.C.
Early Sullivan Wright Gizer & McRae, LLP
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
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