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Boesiger v. Desert Appraisals, LLC

Supreme Court of Nevada

July 3, 2019

JAMES A. BOESIGER, AN INDIVIDUAL; AND MARIA S. BOESIGER, AN INDIVIDUAL, Appellants,
v.
DESERT APPRAISALS, LLC, A NEVADA LIMITED LIABILITY COMPANY; AND TRAVIS T. GLIKO, AN INDIVIDUAL, Respondents.

          Appeal 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.

          David J. Winterton & Associates, Ltd., and David J. Winterton and Meghan H. Shigemitsu, Las Vegas, for Appellants.

          Lipson Neilson P.C. and Joseph Garin and Eric N. Tran, Las Vegas, for Respondents.

          BEFORE PICKERING, PARRAGUIRRE and CADISH, JJ.

          OPINION

          PARRAGUIRRE, J.

         In this 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 home loan.

         As set 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.

         FACTUAL AND PROCEDURAL BACKGROUND

         In 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 price.

         Appellants 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.

         The 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.

         DISCUSSION

         Summary 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).

         Professional ...


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