Charles v. J. Steven Lemons & Associates

Decision Date25 August 1988
Docket NumberNo. 18134,18134
Citation760 P.2d 118,104 Nev. 388
PartiesDavid F. CHARLES and Margaret Peggy Charles, Appellants, v. J. STEVEN LEMONS & ASSOCIATES, a corporation; Century Realty, a corporation; Larry Geisendorf, an individual, Respondents.
CourtNevada Supreme Court

John Peter Lee and Grenville Thomas Pridham, Las Vegas, for appellants.

Eric Zubel and G. Michael Jackson, Ordowski & Eads, Las Vegas, for respondents.

OPINION

PER CURIAM:

Appellants David F. Charles and Margaret Peggy Charles (the Charleses) retained respondents Century Realty (Century) and its agent and part-owner Larry Geisendorf to sell their house at 3220 Garheim in Clark County. Geisendorf brought the Charleses an offer from Frank and Lois Conklin (the Conklins). The offer set forth that the Conklins would assume the loan on the first deed of trust on the property and execute a third deed of trust in favor of the Charleses in consideration of the Charleses' financing $39,700 of the total sale price.

Escrow was closed in the sale and the Conklins moved into the house, but they made no payments on the loans. After two months, the Charleses foreclosed their interest in the property and began payments on the obligations.

In their complaint the Charleses alleged causes of action including affirmative misrepresentation and failure to disclose material information on the part of Lemons, Geisendorf and Century. Respondents denied these allegations and raised affirmative defenses including assumption of risk and contributory negligence on the part of the Charleses.

On January 7, 1987, after the parties had conducted discovery, Geisendorf and Century filed their motion for summary judgment. The Charleses opposed the motion. After a hearing, the court granted the motion and entered judgment for Geisendorf and Century on February 3, 1987.

Lemons filed its motion for summary judgment on February 2, 1987. The Charleses promptly filed their opposition to Lemons' motion. Following a hearing, the district court, on March 10, 1987, entered judgment dismissing with prejudice the Charleses' claims against Lemons and awarding costs in the amount of $544 to Lemons.

The Charleses argue that the district court erred in granting summary judgment and dismissing their complaint because unresolved issues of material fact remained outstanding, because respondents were not entitled to summary judgment as a matter of law and because the court misplaced the burden of proof in Geisendorf and Century's motion for summary judgment.

Summary judgment should not be entered when material issues of fact exist. Shepard v. Harrison, 100 Nev. 178, 678 P.2d 670 (1984). We have previously explained constraints applicable to summary proceedings as follows:

Trial judges are admonished to exercise great caution in granting summary judgment. Litigants are not to be deprived of a trial on the merits if there is the slightest doubt as to the operative facts.... The trial court should review the record searchingly for material issues of fact, the existence of which eliminate the propriety of summary treatment.

Mullis v. Nevada National Bank, 98 Nev. 510, 512, 654 P.2d 533, 535 (1982) (citations omitted).

In their motion for summary judgment, Geisendorf and Century argued that they owed no duty to the Charleses which could give rise to a cause of action, that they had not guaranteed that the Conklins would meet their obligations, and that the Charleses assumed the risks involved in the transaction.

The Charleses opposed Geisendorf and Century's motion for summary judgment, asserting that Geisendorf failed to disclose to them that the Conklins had listed on the credit application a combined income of only $2,400 per month, that the Conklins expected to use income from a speculative gold investment to meet their financial obligations in the sale, and that the Conklins' second mortgage on the property was secured by a promissory note with an interest rate of 22.5 percent and a stated annual percentage rate of 30.85 percent. They said this information would have been material to their decision to accept the offer, and that Geisendorf breached a fiduciary duty to them in failing to disclose it. The Charleses also stated that Geisendorf's telling them the Conklins were financially capable and qualified to make payments on the loans and to buy the property was either an affirmative...

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