Breliant v. Preferred Equities Corp.

• Decision Date: 30 May 1996
• Docket Number: No. 26748,26748
• Citation: 918 P.2d 314,112 Nev. 663
• Parties: William BRELIANT, Trustee of the Breliant Trust, and Roberta Silverman, Appellants, v. PREFERRED EQUITIES CORPORATION, a Nevada Corporation, Respondent.
• Court: Nevada Supreme Court

Page 314

918 P.2d 314

112 Nev. 663

William BRELIANT, Trustee of the Breliant Trust, and Roberta Silverman, Appellants, v. PREFERRED EQUITIES CORPORATION, a Nevada Corporation, Respondent.

No. 26748.

Supreme Court of Nevada.

May 30, 1996.

Rehearing Denied Dec. 17, 1996.

Jones, Jones, Close & Brown and Gary T. Foremaster, Las Vegas, for Appellants.

Lionel Sawyer & Collins and David N. Frederick, Las Vegas, for Respondent.

OPINION

PER CURIAM:

This case arises out of a dispute between the owners of adjoining parcels of land (referred to respectively as the "Breliant Property"

and the "PEC Property"). Appellants (referred to collectively as "Breliant") brought a declaratory relief action against respondent Preferred Equities Corp. ("PEC") in an attempt to abrogate an easement of record giving the owner of the PEC Property the use of thirty unspecified parking spaces on the Breliant Property. Because we conclude that the district court erred in refusing to declare the easement extinguished, we reverse the order of the district court and remand with instructions to enter judgment in favor of Breliant.

FACTS

The Breliant Property is a tract of land in Las Vegas upon which is situated an apartment complex. The PEC Property is a contiguous tract of land upon which is situated a commercial office complex consisting of four buildings. Some time prior to December 7, 1976--before either Breliant or PEC acquired their respective properties--an express easement was created entitling the owner of what is now the PEC Property to the use of thirty unspecified parking spaces on what is now the Breliant Property. This easement is referred to as the "First Easement." The First Easement thus benefited what is now the PEC Property (the dominant tenement) and burdened the Breliant Property (the servient tenement). Although the First Easement is not mentioned in Breliant's deed, the First Easement is recited in PEC's deed and recorded in Breliant's chain of title.

On December 7, 1976, again before Breliant or PEC acquired their respective properties, the Breliant Property was conveyed to "Joseph R. Laird, Jr. and Kenneth J. Fisher, each married men as their sole and separate property." On March 2, 1977, the PEC Property, including the First Easement, was conveyed to "Joseph R. Laird, Jr. and Kenneth J. Fisher."

By quitclaim deed dated April 4, 1979, "Joseph R. Laird and Patricia J. Laird, husband and wife," released their interest in the Breliant Property to Kenneth J. Fisher (Fisher). In connection with the conveyance of the Breliant Property, but in a separate document dated April 1, 1979, Fisher granted to Joseph R. Laird, Jr. (Laird) an easement entitling the owner of the PEC Property to the use, in common with owner of the Breliant Property, of all exterior parking between the office building on the PEC Property and the apartment building on the Breliant Property. This easement is referred to as the "Second Easement." Finally, in a deed dated May 1, 1979, Fisher quitclaimed his interest in the PEC Property to Laird. All three instruments were recorded on May 3, 1979.

After Breliant acquired the Breliant Property in 1988, PEC continued to assert that it was entitled to the thirty unspecified parking spaces under the First Easement, in addition to the parking spaces included in the Second Easement. Breliant, believing the First Easement to still be in existence, approached PEC in an unsuccessful attempt to negotiate some arrangement with regard to the thirty "unspecified" parking spaces. However, after seeking the advice of legal counsel, Breliant took the position that the First Easement had been extinguished by operation of law when the dominant and servient tenements were both held by Laird and Fisher. Breliant subsequently initiated the present litigation in an attempt to remove the cloud created by the continuing reference to the First Easement in PEC's deed.

In an earlier appeal, this court reversed an order of the district court dismissing Breliant's complaint under NRCP 12(b)(5) because "the district court erred in declining to consider the merger and termination of the First Easement." ¹ Following remand by this court, and a bench trial, the district court concluded that (1) due to community property presumptions, the conveyance of the Breliant Property to Laird and Fisher also created an ownership interest in the property in the men's wives, but the conveyance of the PEC Property did not; (2) because the dominant and servient tenements were therefore never in common ownership, the doctrine of extinguishment through

merger was not applicable to the First Easement; (3) even if the merger doctrine might otherwise be applicable, the First Easement was "re-created and/or revived" upon the severance of the common ownership; (4) the First Easement is "necessary to the proper and reasonable use and enjoyment of the PEC Property;" and (5) because of his conduct, Breliant is estopped from claiming that the First Easement has been extinguished. Thus, the district court entered judgment in favor of PEC. Breliant now appeals the district court's entry of judgment.

DISCUSSION

The Law of the Case.

Breliant contends that the district court failed to follow the law of the case as set forth in the prior appeal when the district court considered whether the Breliant and PEC properties were ever held in common ownership. ² We disagree.

A principle or rule of law becomes the law of the case only if it is necessary to the appellate court's decision. Cord v. Cord, 98 Nev. 210, 213, 644 P.2d 1026, 1028 (1982); see also Sherman Gardens Co. v. Longley, 87 Nev. 558, 565, 491 P.2d 48, 53 (1971) (an issue becomes the law of the case only if presented, considered, and deliberately decided). However, in deciding whether to dismiss a complaint pursuant to NRCP 12(b)(5), "[a]ll allegations pled must be accepted as true." Bergmann v. Boyce, 109 Nev. 670, 674, 856 P.2d 560, 563 (1993). As Bergmann makes clear, the dispositive resolution of questions of fact is not a part of a motion to dismiss on the pleadings. Consequently, insofar as Breliant may have purported to reach a dispositive conclusion on the factual issue of unity of ownership, such a conclusion was unnecessary in light of the procedural posture of the appeal.

We therefore hold that unity of ownership did not become the law of the case. Our holding in Breliant was simply that (1) if there is unity of interest (i.e., common ownership) in the two properties, then the First Easement was extinguished, and (2) Breliant pled sufficient facts to state a claim based on extinguishment. See 109 Nev. at 847, 858 P.2d at 1261. It follows that, on remand, the district court--as the trier of fact and free of the procedural constraints accompanying the motion to dismiss--did not act in excess of its jurisdiction in considering whether in fact there was ever common ownership of the Breliant and PEC properties.

Judicial Estoppel.

Breliant contends that the district court erred in refusing to preclude PEC from denying unity of interest at trial under the doctrine of judicial estoppel. Breliant points to various pretrial motions in which PEC listed common ownership of the Breliant and PEC properties as either an "undisputed" or "agreed to" fact. Apparently, the first indication that PEC would be disputing unity of ownership appears in PEC's trial brief filed on November 8, 1994--six days before the post-remand trial. In response, PEC argues that the district court did not err because PEC's previous representations did not inure to PEC's benefit. We agree.

" 'Under the doctrine of judicial estoppel a party may be estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding the contrary of the assertion sought to be made.' " Sterling Builders, Inc. v. Fuhrman, 80 Nev. 543, 549, 396 P.2d 850, 854 (1964) (quoting 31 C.J.S. Estoppel § 121 at 649). In Sterling Builders, Fuhrman sued Sterling Builders and another defendant as co-partners In the present case, PEC ultimately did not prevail on its pre-trial motions. Consequently, we conclude that PEC did not benefit by arguing previously that common ownership was undisputed. We note that some courts have held that a favorable judgment is not always a necessary element of judicial estoppel, "so long as the party against whom the estoppel is sought has been successful in arguing its original position against the party asserting the estoppel." See, e.g., DeMers v. Roncor, Inc., 249 Mont. 176, 814 P.2d 999 (1991). Nevertheless, we conclude that the inconsistencies in PEC's pre-trial arguments represent a legitimate abandonment of a clearly unsupportable theory of the case, rather than an attempt by PEC to "have it both ways." Under the circumstances, we hold that the district court's refusal to estop PEC to deny unity of ownership was not a clear abuse of discretion.

                doing business as Sterling Village Market.  Id. at 544, 396 P.2d at 851.   Sterling Builders' defense was that it was not a partner, but merely a creditor.  Id.  However, in a previous action, Sterling Builders had claimed that it was a partner in Sterling Village Market, thus enabling it to secure the appointment of a receiver for Sterling Village Market and share in the eventual sale of the market's assets.  Id. at 549, 396 P.2d at 854.   The district court ruled that [112 Nev. 669] Sterling Builders was, by its actions in the receivership proceeding, judicially estopped from denying its partnership relationship in the later proceeding.  Id. at 550, 396 P.2d at 854.   This court affirmed, concluding that Sterling Builders was judicially estopped from advancing in the later proceeding the inconsistent claim that it was not a partner in Sterling Village Market because it had "initiat[ed], prosecut[ed], and effectuat[ed] the results of the receivership to its own benefit."  Id. at 549, 396 P.2d at 854
                

The First Easement.

Breliant contends that ...