915 F. Supp. 2d 1191
D. Nev.2013Background
- R&O performed work on the West Charleston Lofts project but was not fully paid; about $682,595 remains due.
- R&O recorded Notices of Lien against the project in January 2009 and claims subsequent condo purchasers took title with record notice.
- The Third Party Defendants (Park 209, Antonopoulos, West) are unit owners at West Charleston Lofts and move to dismiss the claims.
- R&O seeks foreclosure on the mechanics liens and unjust enrichment against the third party defendants.
- Defendants argue failure to file a notice of pendency of action (NPOA) bars foreclosure or defeats record notice; Antonopoulos argues bona fide purchaser without notice.
- R&O contends NPOA failure only affects notice, not jurisdiction, and argues there were other notices and actual notice may suffice; unjust enrichment claim argued despite contracts between R&O and West Charleston Lofts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to file a notice of pendency precludes foreclosure | R&O argues failure to file NPOA does not bar suit if other notice exists | Park 209/West/Antonopoulos contend NPOA failure precludes lien foreclosure | Failure to file NPOA does not deprive jurisdiction; can foreclose if other notice exists |
| Whether third parties had actual or constructive notice of the lien | R&O asserts constructive/actual notice through recorded liens and other notices | Defendants contend lack of NPOA requires dismissal or bar on notice grounds | NPOA failure does not preclude suit; notice issue goes to notice to purchasers, not jurisdiction |
| Whether bona fide purchaser without notice is an affirmative defense suitable for dismissal | R&O argues BFP status is an affirmative defense for which defendants bear burden | BFP status is a defense requiring factual development | BFP status is an affirmative defense; not appropriate to decide on motion to dismiss |
| Whether unjust enrichment claims lie where there is a written contract with another party | Leasepartners allows unjust enrichment where no contract between plaintiff and defendant | Existence of a contract with West Charleston Lofts bars unjust enrichment against third parties | Unjust enrichment claim potentially viable against third parties despite contract with another entity |
| Whether the unjust enrichment claim requires the defendant to have conferred the benefit at its request (as per Certified Fire) | Certified Fire discussion does not bar Leasepartners-based analysis; may lie here | Certified imposes a requested-benefit element | Certified does not require benefit conferred at defendant's request; not fatal to claim against third parties |
Key Cases Cited
- In re Fontainebleau Las Vegas Holdings, 289 P.3d 1199 (Nev. 2012) (mechanic’s liens; pendency and notices context discussed)
- Fondren v. K/L Complex, Ltd., 800 P.2d 719 (Nev. 1990) (failure to pre-lien notice does not bar suit when actual notice exists)
- Coury v. Tran, 895 P.2d 650 (Nev. 1995) (purpose of recording notice to cloud title prior to sale)
- Leasepartners Corp. v. Robert L. Brooks Trust Dated Nov. 12, 1975, 942 P.2d 182 (Nev. 1997) (unjust enrichment may lie absent an express contract with the defendant)
- Patten-Blinn Lumber Co. v. Francis, 333 P.2d 255 (Cal.App.2d 1958) (similar pre-notice-pendency rationale in other jurisdictions)