Davis v. Beling
128 Nev. 301
Nev.2012Background
- In 2005, the Doughertys listed their Augusta Property with Davis/Platinum to finance a MacDonald Highlands build.
- Davis assured the Doughertys the Byrds would buy the Augusta Property, prompting the Doughertys to close on the MacDonald Highlands Property and Ping Property before Augusta closed.
- Davis arranged a $150,000 advance to close on the Ping Property, misrepresenting it as funds from the Byrds for the Augusta closing.
- The Byrds never closed on Augusta, Davis admitted the delay, and the Doughertys refused further Ping closing; litigation ensued.
- Davis sued for recovery of the $150,000; the Doughertys counterclaimed for fraud, misrepresentation, breach of fiduciary duties, and NRS 645.257 claims; the case went to jury trial with related motions in limine.
- The district court granted some motions in limine, submitted multiple claims to the jury, and the court later denied certain fee requests; the appellate court reviews liability and damages rulings, then remands on some damages but affirms liability on several theories.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of compromise offers for mitigation | Davis argues NRS 48.105(2) allows mitigation evidence. | Doughertys contend compromise offers are inadmissible under NRS 48.105(1) to prove mitigation. | Offers of compromise cannot prove mitigation; excluded under NRS 48.105(1) and sustained. |
| Scope of NRS 645.251 precluding common law claims | Davis argues licensees are shielded from all common law actionable claims. | Doughertys contend some common law claims remain viable if not covered by NRS 645.252-254. | NRS 645.251 precludes only overlapping common law claims; fraud-by-concealment barred, but NRS 645.257 claims and non-overlapping claims survive. |
| Damages under NRS 645.257; measure and scope | Davis argues only out-of-pocket damages are recoverable; diminution damages improper. | Doughertys contend diminution and consequential damages are recoverable. | Actual damages = compensatory; diminution damages allowed; consequential carrying costs recoverable; economic loss doctrine does not bar. |
| Attorney fees under listing/purchase agreements | Doughertys entitled to attorney fees under the agreements for defense of those contract claims; court must determine reasonable amount and avoid double recovery. |
Key Cases Cited
- Affiliated Mfrs., Inc. v. Aluminum Co. of America, 56 F.3d 521 (3d Cir. 1995) (Rule 408-like reasoning for compromise evidence (mitigation))
- Stockman v. Oakcrest Dental Center, P.C., 480 F.3d 791 (6th Cir. 2007) (Mitigation evidence and settlement negotiations; Rule 408 analog)
- Pierce v. F.R. Tripler & Co., 955 F.2d 820 (2d Cir. 1992) (Compromise evidence and mitigation; Rule 408 discussion)
- Morrison v. Beach City LLC, 116 Nev. 34, 991 P.2d 982 (2000) (Policy against settlement evidence; mitigation context)
- Strebel v. Brenlar Investments, Inc., 37 Cal. Rptr.3d 699 (Cal. App. 2006) (Damages for fraud; diminution/mitigation parallels)
- Beazer Homes Nevada, Inc. v. Dist. Ct., 120 Nev. 575, 97 P.3d 1132 (2004) (Damages framework; statutory interpretation guidance)
- Saunders v. Taylor, (Cal. App. 1996) () (Common law damages context cited in analysis)