JAMES A. BOESIGER, AN INDIVIDUAL; AND MARIA S. BOESIGER, AN INDIVIDUAL, Appellants,
DESERT APPRAISALS, LLC, A NEVADA LIMITED LIABILITY COMPANY; AND TRAVIS T. GLIKO, AN INDIVIDUAL, Respondents.
from a district court order granting summary judgment in a
professional negligence action involving a real property
appraisal. Eighth Judicial District Court, Clark County;
James Crockett, Judge.
J. Winterton & Associates, Ltd., and David J. Winterton
and Meghan H. Shigemitsu, Las Vegas, for Appellants.
Neilson P.C. and Joseph Garin and Eric N. Tran, Las Vegas,
PICKERING, PARRAGUIRRE and CADISH, JJ.
appeal, we are asked to review a district court order
granting summary judgment in favor of respondents, a real
estate appraisal j company and a professional real estate
appraiser. After purchasing a home, appellants alleged
respondents negligently relied on inaccurate information to
calculate the home's size and market value, resulting in
a misleading appraisal report and an inflated purchase price,
and preventing appellants from thereafter refinancing their
forth herein, we affirm the district court's order
granting summary judgment for respondents. We also take this
opportunity to emphasize the important role of summary
judgment in promoting sound judicial economy. Courts should
not hesitate to discourage meritless litigation in instances
where, as here, claims are deficient of evidentiary support
and are based on little more than the complainants'
conclusory allegations and accusations.
AND PROCEDURAL BACKGROUND
September 2013, appellants James and Maria Boesiger purchased
a home in Las Vegas for $337, 000, financing most of the
purchase price through a mortgage on the property. The
mortgage company contracted with respondent Desert
Appraisals, LLC, to perform an appraisal on the property,
which the appraiser, respondent Travis Gliko, valued at $340,
000, with 3, 002 square feet of gross living area. The
appraisal report explicitly noted a discrepancy between the
square footage reported by the county assessor's office,
which apparently estimated 3, 553 square feet, and the square
footage as estimated by the appraiser, explaining that the
added footage appeared to be based on outdated information
from when the garage was used as a model home office. After
unsuccessfully attempting to refinance their home loan
approximately one year later, appellants purportedly became
aware of the discrepancy in square footage. Appellants
thereafter filed suit against respondents, asserting claims
for professional negligence, negligent misrepresentation,
breach of the statutory duty to disclose a material fact, and
breach of contract as third-party beneficiaries.
Specifically, appellants alleged respondents negligently
relied on the incorrect assessor's data for the property,
which resulted in an overvalued appraisal and caused
appellants to purchase the home at an inflated purchase
filed their complaint in October 2015. After initially
designating an expert appraiser to testify, appellants
withdrew the expert witness after failing to comply with NRCP
16.1(a)(2)'s requirements for designating an expert
witness. More than two years after appellants filed their
complaint, respondents moved for summary judgment, noting
appellants' failure to designate an expert witness to
establish the professional standard of care for real estate
appraisers, and arguing that this failure was fatal to
appellants' complaint. Other than the depositions of
Maria Boesiger and Gliko, the record does not indicate
appellants proffered any evidence supporting their claim.
Although appellants identified various individuals who might
testify in support of their challenge to the property
appraisal, as well as potentially discoverable documents, by
December 2017, no such testimony or evidence had been
provided, other than the two depositions, the 2013 purchase
agreement, and the disputed property appraisal itself.
district court granted summary judgment for respondents. In
rejecting appellants' professional negligence claim, the
court concluded appellants failed to establish the
appropriate professional standard of care by failing to
designate an expert witness to testify as to industry
standards governing professional appraisers. The district
court also concluded that appellants' claims for
negligent misrepresentation and breach of duty to disclose
failed in that they were derivative of appellants'
deficient professional negligence claim. Finally, the
district court determined that appellants failed to show that
they were clearly intended third-party beneficiaries of the
appraisal contract between respondents and the mortgage
company, which had ordered the appraisal.
judgment is an important procedural tool by which
"factually insufficient claims or defenses [may] be
isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private
resources." Celotex Corp, v Catrett, 477 U.S.
317, 327 (1986). We review a district court order granting
summary judgment de novo, viewing all evidence in a light
most favorable to the nonmoving party. Wood v. Safeway,
Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005).
Pursuant to NRCP 56, a party may properly move for summary
judgment where the party establishes "that there is no
genuine dispute as to any material fact" and the party
is entitled to judgment as a matter of law. It is well
settled that summary judgment should only be granted
"when the pleadings, depositions, answers to
interrogatories, admissions, and affidavits ... that are
properly before the court demonstrate that no genuine issue
of material fact exists." Wood, 121 Nev. at
731, 121 P.3d at 1031. However, to survive summary judgment,
the nonmoving party must "do more than simply show that
there is some metaphysical doubt as to the operative
facts," relying upon more than general allegations and
conclusions set forth in the pleadings, and must present
specific facts demonstrating the existence of a genuine
issue. Id. at 732, 121 P.3d at 1031 (internal
quotation marks omitted).