Christopher v. Byrd Underground, Llc ( 2013 )

 action.' Ditch Diggers and the Byrd respondents moved for summary
judgment and attorney fees, which the district court granted. The case
proceeded to trial, after which the district court directed a verdict on some
of appellant's claims and entered judgment after a jury verdict on the
remaining claims. This appeal followed.
We have reviewed the record and considered appellants' civil
proper person appeal statement, respondents' response, and appellants'
replies, and we conclude that the district court's summary judgments in
favor of Ditch Diggers and the Byrd respondents on appellants' claims
were appropriate. Wood v. Safeway, Inc., 121 Nev. 724, 731, 121 P.3d
1026, 1031 (2005) (holding that summary judgment is appropriate when
the evidence demonstrates that that there are no genuine issues of
material fact); see also Terracon Consultants v. Mandalay Resort, 125
Nev. 66, 74, 206 P.3d 81, 87 (2009) ("[U]nless there is personal injury or
property damage [beyond damage cause by the construction], a plaintiff
may not recover in negligence for economic losses."); 2 Stalk v. Mushkin,
125 Nev. 21, 28, 199 P.3d 838, 843 (2009) (holding that breach of fiduciary
duty requires a fiduciary duty); Butler v. Bayer, 123 Nev. 450, 464, 168
P.3d 1055, 1065 (2007) (holding that negligence requires a duty); J.A.
Jones Const. v. Lehrer McGovern Bovis, 120 Nev. 277, 290, 89 P.3d 1009,
1018 (2004) (holding that a fraudulent inducement claim includes the
elements of a false statement by the defendant inducing action by the
plaintiff); Dow Chemical Co. v. Mahlum, 114 Nev. 1468, 1485, 970 P.2d 98,
110 (1998) (recognizing that fraudulent or intentional concealment
"The Byrd respondents were not contracted to do anything on the
subject property, but were sued under an alter ego theory for Ditch
Diggers.
2 Appellants cannot proceed under NRS Chapter 40 because they did
not give the required notices. NRS 40.645.
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requires a duty to disclose the information allegedly concealed); Ashwood
v. Clark County, 113 Nev. 80, 86-87, 930 P.2d 740, 744 (1997) (holding
that the Clark County Building Code did not establish a duty giving rise to
negligence per se); Hilton Hotels v. Butch Lewis Productions, 107 Nev.
226, 233, 808 P.2d 919, 923 (1991) (holding that tortious breach of the
covenant of good faith and fair dealing requires "a special element of
reliance or fiduciary duty"); Waitz v. Ormsby County, 1 Nev. 370, 377
(1865) (holding that an action for money had and received may be
maintained where one person has received money from another but has no
right to retain the money); Thomas Learning Center, Inc. v. McGuirk, 766
So. 2d 161, 171 (Ala. Civ. App. 1998) (holding that contractor licensure
statutes did not give rise to negligence per se).
Likewise, the district court's summary judgment in favor of
Ditch Diggers regarding its mechanics' lien was appropriate. NRS
108.222(1) (A mechanics lien may be asserted for "any improvements for
which the work, materials and equipment were furnished or to be
furnished."); NRS 108.226(2)-(3); NRS 108.227(1)(b). Ditch Diggers' work
qualified as a statutorily defined "improvement" under NRS 108.22128(7),
regardless of whether appellants believe that Ditch Diggers' work actually
"improved" their property. Crestline Inv. Group v. Lewis, 119 Nev. 365,
369, 75 P.3d 363, 366 (2003) (holding that mechanics lien protection
applies to "services intended to improve the property"), su_perseded by
statute on other grounds, NRS 108.2275, as recognized in Yonker Const.,
Inc. v. Hulme, 126 Nev. , 248 P.3d 313 (2010).
After considering the record and the parties' arguments, we
further conclude that the district court did not err when it entered a
directed verdict or when it entered judgment after a jury verdict in favor
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of Master Excavators and Southwest Equipment. 3 Allstate Insurance Co.
v. Miller, 125 Nev. 300, 308, 212 P.3d 318, 324 (2009) ("[T]his court
upholds a jury verdict if there is substantial evidence to support it, but
will overturn it if it was clearly wrong from all the evidence presented."
(quotation marks omitted)); M.C. Multi-Family Dev. v. Crestdale Assocs.,
124 Nev. 901, 910, 193 P.3d 536, 542 (2008). ("A directed verdict is proper
. . . when the evidence is so overwhelming for one party that any other
verdict would be contrary to the law." (quotation marks omitted)).
Evidence that the existing sewer lines were actually located several feet
deeper than the elevation indicated on the plans supported the jury's
verdict that Master Excavators did not breach the contract. Accordingly,
we
ORDER the judgment of the district court AFFIRMED. 4
Gibbons
. J.
Douglas
3 The record on appeal does not include the transcripts for the last
three days of trial. NRAP 9(a)(1). When appropriate, we must assume
that the missing material supports the jury's findings or the district
court's orders. Cuzze v. Univ. & Cmtv. Coll. Sys. of Nev., 123 Nev. 598,
603, 172 P.3d 131, 135 (2007).
4 We have reviewed the district court's award of attorney fees, and
we find no abuse of discretion. Brunzell v. Golden Gate Nat'l Bank, 85
Nev. 345, 350, 455 P.2d 31, 33 (1969). We have considered appellants'
remaining arguments on appeal and conclude that the district court did
not abuse its discretion or that appellants' remaining arguments are
without merit.
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cc: Hon. Elizabeth Goff Gonzalez, District Judge
Palmer Christopher
Paul Christopher
Peel Brimley LLP
Master Excavators
Southwest Equipment
Eighth District Court Clerk
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