Wowor v. Ross ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
TREES WOWOR, AN INDIVIDUAL; No. 65163
MARK SEIDENBERG, AN
INDIVIDUAL; AND MARK
SEIDENBERG, IN HIS CAPACITY AS
PERSONAL REPRESENTATIVE FOR
THE ESTATE OF SOPHIE
FILED
SEIDENBERG, JAN 1 5 2016
Appellants,
vs.
MICHAEL ROSS, A PERSONAL
REPRESENTATIVE OF THE ESTATE
OF HARRY MATHIAS ROSS, A
NEVADA PROBATE
ADMINISTRATION,
Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a district court order dismissing a
complaint and denying a countermotion to stay civil proceedings. 1 Eighth
Judicial District Court, Clark County; Douglas Smith, Judge.
Although we review an NRCP 12(b)(5) motion to dismiss de
novo, "the denial of a motion to stay civil proceedings made in connection
with such a request is reviewed for an abuse of discretion." Aspen Fin.
Servs., Inc. v. Eighth Judicial Dist. Court, 128 Nev., Adv. Op. 57, 289 P.3d
201, 205 (2012); Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224,
'We note that appellants did not file an amended complaint or seek
leave to do so.
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227-28, 181 P.3d 670, 672 (2008). On appeal, we must determine whether
the district court erred in dismissing the complaint or abused its
discretion in denying appellants' countermotion to stay civil proceedings.
We affirm.
This case arises from an allegedly fraudulent real estate
transaction in California that took place in 1995. Harry Mathias Ross
served as a general partner in a California partnership called Pinetree
Village, Ltd. Pinetree Village developed a condominium project and
created associated covenants, conditions and restrictions or CC&Rs. On
January 16, 1997, Pinetree Village sold its first condominium. Appellants
allege that, in violation of California law, Pinetree Village did not grant a
deed to the homeowners association (HOA) for the common areas of
Pinetree Village until August 25, 2011. However, the HOA had been
collecting dues, fees, and assessments from the homeowners of the
condominiums of [Pinetree Village], and enforcing the provisions of the
CC&Rs since approximately 1996."
Based on this alleged violation of law, appellants filed a
complaint in Nevada against the Estate of Harry Mathias Ross.
Appellants only alleged one cause of action—fraud—averring that their
deeds transferred an "incorrect and therefore inoperable legal description
and as such made the transfer null and void." Respondent moved to
dismiss the complaint arguing that appellants lacked standing, failed to
plead fraud with particularity, and filed their complaint after the statute
of limitations had expired. Appellants opposed the motion and counter-
moved for a stay of the proceedings, so they could prosecute a parallel
action in California. The district court granted respondent's motion to
dismiss and denied appellants' countermotion for stay of proceedings,
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concluding that California is the proper court, and appellants should have
obtained a judgment in California before suing respondent in Nevada.
While the district court appears to have dismissed appellants'
complaint under Bergeron v. Loeb, 100 Nev. 54, 675 P.2d 397 (1984), we
decline to evaluate this case under Bergeron. See Saavedra-Sandoval v.
Wal-Mart Stores, Inc., 126 Nev. 592, 599, 245 P.3d 1198, 1202 (2010)
("This court will affirm a district court's order if the district court reached
the correct result, even if for the wrong reason."). Rather, we conclude
that appellants' fraud allegations do not meet the heightened pleading
requirements imposed by NRCP 9(b), which states: "In all averments of
fraud or mistake, the circumstances constituting fraud or mistake shall be
stated with particularity." The heightened pleading requirement for fraud
is designed "to give defendants notice of the particular misconduct so that
they can defend against the charge and not just deny that they have done
anything wrong." Risinger v. SOC LLC, 936 F. Supp. 2d 1235, 1242 (D.
Nev. 2013). In this case, the allegations against respondent not only fail
to satisfy the heightened pleading requirement for fraud, but also fail to
put respondent on notice of the bases of appellants' claim under the most
relaxed pleading standard.
Appellants maintain that the district court should have simply
stayed the Nevada action, not dismissed it. But the Nevada complaint
does not meet the pleading requirements imposed by NRCP 9(b) and, as a
consequence, does not state a claim upon which relief can be granted
under NRCP 12(b)(5). Given the inadequacy of the pleading, it was not an
abuse of discretion for the district court to have denied appellants' motion
for a stay.
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Accordingly, as thefl district court did not err in dismissing the
complaint or abuse its discretion in denying appellants' motion to stay
civil proceedings, we
ORDER the judgment of the district court AFFIRMED.
0242-43t1
J.
Hardesty
flit , J.
Pickering
7 Johns.
cc: Hon. Douglas Smith, District Judge
Hansen Rasmussen, LLC
Bryan A. Lowe & Associates
Smith Larsen & Wixom
Eighth District Court Clerk
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