Batista v. S. Jones 300 ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
EVANGELINE G. BATISTA; AND No. 64125
ZENAIDA G. CONCEPCION,
Appellants,
vs.
SALVADOR WONG; PATRIA
PIMENTEL; AND AMANTI PIMENTEL,
Respondents.
FILED
SALVADOR WONG,
Appellant,
904 1 4 2016
vs. TRAC1E K. UNDEMAN
CLERK F SUPREME COURT
S. JONES 300, L.P., A DOMESTIC BY
DEPUTY CLERK
LIMITED PARTNERSHIP,
Respondent.
PATRIA PIMENTEL; AND AMANTI
PIMENTEL,
Appellants,
vs.
S. JONES 300, L.P., A DOMESTIC
LIMITED PARTNERSHIP; AND
RICHARD DIIORIO,
Respondents.
ORDER AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
This is an appeal from a district court judgment in a breach of
contract action. Eighth Judicial District Court, Clark County; Douglas
Smith, Judge.
The appellants all signed personal guarantees guaranteeing
the payment of rent for leased commercial space from respondent S. Jones
300, L.P. Each of the appellants was involved in running a restaurant in
the space at one time or another during the term of the lease. Because
appellants Patria and Amanti Pimentel failed to pay rent under the lease,
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Jones filed the underlying breach of contract action against the appellants.
The Pimentels filed counterclaims against Jones and respondent Richard
DiIorio for fraud, unjust enrichment, and intentional infliction of
emotional distress. Appellants Evangeline Batista and Zenaida
Concepcion filed cross-claims against the Pimentels and appellant
Salvador Wong for indemnification. The Pimentels failed to file an answer
to the cross-claim. After a trial, the district court dismissed the Pimentels'
counterclaims, denied Batista and Concepcion's cross-claims, and entered
a judgment in Jones's favor for $101,736.98.
Having considered the parties' arguments and the record on
appeal, we conclude that the district court erred in calculating the
damages award. While the court properly calculated and awarded Jones
unpaid rents, late charges, and the returned check fee, substantial
evidence does not support the award of $14,000 for roof damages because
those damages were never pled in the complaint and substantial evidence
does not support the inclusion in the award of $8,448 reflecting the
security deposit retained by Jones. Sowers v. Forest Hills Subdivision,
129 Nev., Adv. Op. 9, 294 P.3d 427, 432 (2013) (providing that this court
will uphold a district court's factual findings if they are supported by
substantial evidence). Thus, we reverse the damages award and remand
this matter for the district court to determine the prejudgment interest
based on the reduced damages award. 1
'We conclude, however, that the attorney fees award to Jones does
not need to be reduced as a result of the damages award reduction because
the personal guarantees require the guarantors to pay Jones' reasonable
attorney fees.
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We affirm the district court's dismissal of the Pimentels'
counterclaims because they failed to establish fraud, unjust enrichment, or
intentional infliction of emotional distress. Certified Fire Prot. Inc. v.
Precision Constr. Inc., 128 Nev., Adv. Op. 35, 283 P.3d 250, 257 (2012)
(unjust enrichment); Barmettler v. Reno Air, Inc., 114 Nev. 441, 446-47,
956 P.2d 1382, 1386 (1998) (fraud); Star v. Rabello, 97 Nev. 124, 125, 625
P.2d 90, 91-92 (1981) (intentional infliction of emotional distress). We also
affirm the district court's denial of Batista and Concepcion's cross-claim
for indemnification against Wong because they were not third-party
beneficiaries of Wong's personal guaranty. See Pack v. LaTourette, 128
Nev., Adv. Op. 25, 277 P.3d 1246, 1249 (2012) (explaining that equitable
indemnification requires "some duty on the part of the primary tortfeasor
to protect the secondary tortfeasor" (quoting Doctors Co. IX Vincent, 120
Nev. 644, 654, 98 P.3d 681, 688 (2004))); Lips/tie v. Tracy Inv. Co., 93 Nev.
370, 379, 566 P.2d 819, 824-25 (1977) (providing that in order to obtain
third party beneficiary status, "there must clearly appear a promissory
intent to benefit the third party, and ultimately it must be shown that the
third party's reliance thereon is foreseeable" (internal citation omitted)).
We, however, reverse the district court's denial of Batista and
Concepcion's cross-claim for indemnification against the Pimentels. The
Pimentels never answered the cross-claim, and thus, have admitted to
Batista and Concepcion's allegations for indemnity, see NRCP 8(d)
(providing that lalverments in a pleading to which a responsive pleading
is required, other than those as to the amount of damage, are admitted
when not denied in the responsive pleading"), and they failed to challenge
or address in any manner at trial Batista and Concepcion's argument for
indemnity. Because when a party is eligible for indemnity, the indemnitee
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is entitled to recover from the indemnitor attorney fees and costs incurred
in defending the primary action, Piedmont Equip. Co. v. Eberhard Mfg.
Co., 99 Nev. 523, 529, 665 P.2d 256, 260 (1983), we remand this matter to
the district court to determine whether Batista and Concepcion are
entitled to attorney fees from the Pimentels.
It is so ORDERED.
J.
Hardesty
J.
Saitta
PiekutiAl J.
Pickering
cc: Hon. Douglas Smith, District Judge
Amanti Pimentel
Olson, Cannon, Gormley, Angulo & Stoberski
Accelerated Law Group
Patria P. Pimentel
Premier Legal Group
Eighth District Court Clerk
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