Golden Nugget, Inc. v. Ham

• Decision Date: 27 June 1973
• Citation: 589 P.2d 173,95 Nev. 45
• Parties: GOLDEN NUGGET, INC., a Nevada Corporation, Appellant, v. A. W. HAM, Jr., an Individual, Bank of Nevada, as Trustee under that certain trust agreement dated
• Court: Nevada Supreme Court

Page 173

589 P.2d 173

95 Nev. 45

GOLDEN NUGGET, INC., a Nevada Corporation, Appellant, v. A. W. HAM, Jr., an Individual, Bank of Nevada, as Trustee under that certain trust agreement dated June 27 1973, wherein A. W. Ham, Jr., is Trustor and Bank of Nevada is Trustee Respondents.

No. 9330.

Supreme Court of Nevada.

Jan. 17, 1979.

Goodman, Oshins, Brown & Singer, Las Vegas, Saphier, Rein & Burris, and Michael S. Saphier, Los Angeles, Cal., for appellant.

Morse, Foley & Wadsworth, and William R. Morse, Las Vegas, for respondent A. W. Ham, Jr.

Wiener, Goldwater & Waldman, Ltd., and Lawrence A. Speiser, Las Vegas, for respondent Bank of Nevada.

OPINION

PER CURIAM:

The appellant, Golden Nugget, Inc. (GNI), commenced this action against respondent, A. W. Ham, Jr. (Ham), seeking damages for breach of an alleged fiduciary duty, and also a declaration that GNI is the legal owner of an undivided one-half interest in certain real property presently held by respondent, Bank of Nevada (Bank), as Trustee under a Trust Agreement. ¹

Ham, joined by Bank, filed a motion for summary judgment predicated on the ground that GNI's claim was barred by the statute of limitation. The court below agreed and granted the motion. Hence, this appeal.

1. "In deciding the propriety of the summary judgment, we must review the evidence most favorable to the party against whom summary judgment was granted and give that party the benefit of all favorable inferences that may be drawn from the subsidiary facts." Lipshie v. Tracy Investment Co., 93 Nev. 370, 375, 566 P.2d 819, 822 (1977). Summary judgment is appropriate only if there is "no genuine issue as to any material fact and . . . the moving party is entitled to judgment as a matter of law." N.R.C.P. 56(c). As this court stated in McColl v. Scherer, 73 Nev. 226, 315 P.2d 807 (1957), "trial judges should exercise great care in granting motions for summary judgment, and . . . a litigant has a right to a trial where there is the slightest doubt as to the facts." 73 Nev. at 231-32, 315 P.2d 810.

GNI's cause of action is predicated on its contention that defendant Ham, in 1969, while serving as a director and corporate counsel to GNI, obtained a leasehold with an option to purchase in a one-half interest in the California Club, at a time when the property in equity and fairness should have been obtained for GNI. The subject real property, commonly referred to as the California Club, is located at 101 Fremont Street, Las Vegas, Nevada, and is situated next to a series of properties on which GNI conducts its casino operations.

The transaction at issue is a lease with an option to purchase entered into on August 12, 1969, whereby Ham, while a director and attorney for GNI, leased from his former wife, Doris Ham Shupe, an undivided one-half interest in the said property for a term of 99 years, with an option to purchase for $1,000,000. This transaction was consummated shortly after GNI, through a series of property acquisitions, had extended its operations to every other lot on that segment of Fremont Street. GNI, in its pleading, contends that Ham breached his fiduciary duty to GNI by failing to advise it of the opportunity of leasing Shupe's one-half interest in the property at a time when GNI had an interest in acquiring the subject property, and that Ham entered the transaction in bad faith so that he could subsequently relet that interest to GNI for a substantial personal profit, which did occur.

In its order granting summary judgment, the trial court ruled that the applicable statute governing fraud by a corporate director was N.R.S. § 11.190(3)(d), which requires a plaintiff to bring:

3. Within 3 years:

(d) An action for relief on the ground of fraud or mistake; the cause of an action in such case not to be deemed to have accrued until the discovery by the aggrieved party of the facts constituting the fraud or mistake.

The court also held that GNI's cause of action as a matter of law accrued either on August 20, 1970, when notice of the lease in question was given by defendant Ham to a law firm retained as securities specialists for GNI who were preparing a Consent Statement to be submitted to the stockholders seeking authorization to confirm Ham's lease with GNI, or on November 10, 1970, the date on which the Consent Statement was submitted. Using these dates, the court concluded that GNI's action, which was filed in September of 1974, was barred by N.R.S. § 11.190(3)(d).

2. The issue presented is whether, based on the pleading and proof offered, GNI is barred by the three year statute of limitations from having its day in court.

The complaint alleged that GNI did not learn of Ham's breach of fiduciary duty until on or about August 1, 1973. This allegation was supported by the deposition of William Boyd, director of GNI since...