Gunderson v. Irrevocable Trust of William P. Weidner

• Decision Date: 01 December 2021
• Docket Number: No. 81788,81788
• Citation: 499 P.3d 1177 (Table)
• Parties: Jerry GUNDERSON, Appellant, v. The IRREVOCABLE TRUST OF William P. WEIDNER, a Nevada Trust; the Kimberly Gunderson Trust, a Nevada Trust; Series K, Weidner Holdings, LLC, a Nevada Series Limited Liability Company; Kimberly Faye Gunderson, an individual; Lynn Hackerman Weidner, individually and as Trustee of the Kimberly Gunderson Trust; Suzanne Lowden, individually and as Trustee of the Kimberly Gunderson Trust; and William P. Weidner, an individual, Respondents.
• Court: Nevada Supreme Court

499 P.3d 1177 (Table)

Jerry GUNDERSON, Appellant,

v.The IRREVOCABLE TRUST OF William P. WEIDNER, a Nevada Trust; the Kimberly Gunderson Trust, a Nevada Trust; Series K, Weidner Holdings, LLC, a Nevada Series Limited Liability Company; Kimberly Faye Gunderson, an individual; Lynn Hackerman Weidner, individually and as Trustee of the Kimberly Gunderson Trust; Suzanne Lowden, individually and as Trustee of the Kimberly Gunderson Trust; and William P. Weidner, an individual, Respondents.

No. 81788

Supreme Court of Nevada.

FILED DECEMBER 01, 2021

Kaplan Cottner

Foley & Oakes, PC

Lex Nova Law

Hayes Wakayama

Santoro Whitmire

ORDER OF AFFIRMANCE

Several months after the transfer of the Beaver Creek Property, Kimberly filed for divorce against Jerry in Montana district court (the divorce action), and Series K served Jerry with a 30-day notice to vacate. Jerry refused and instead filed a lis pendens against the property. Series K then sued Jerry for unlawful detainer, quiet title, and slander of title in a separate Montana district court action (the quiet title action). Jerry filed a motion to stay the quiet title action pending the results of the divorce action, which the Montana district court granted. Jerry then sued the Weidner and Kimberly trusts and their respective trustees, respondents Suzanne Lowden and Lynne Hackerman Weidner, along with Series K (collectively, the trust defendants), and William and Kimberly (collectively, with Lynne and Lowden in their individual capacities, the individual defendants) in Nevada district court.

In addition to claiming fraudulent inducement solely as against William and Kimberly, Jerry's Nevada district court complaint raised myriad other claims against both the individual and trust defendants: civil RICO, civil conspiracy, unjust enrichment, and conversion. But at the core of even these claims is William and Kimberly's alleged fraudulent inducement of the Beaver Creek Property transfer.¹ See Nautilus Ins. Co. v. Access Med., LLC, 137 Nev. Adv. Op. 10, 482 P.3d 683, 688 (2021) (noting that unjust enrichment requires that "the plaintiff confer[ ] a benefit on the defendant, the defendant appreciates such benefit, and there is acceptance and retention by the defendant of such benefit under such circumstances that it would be inequitable for him to retain the benefit without payment of the value thereof"); Consol. Generator-Nevada, Inc. v. Cummins Engine Co., Inc., 114 Nev. 1304, 1311, 971 P.2d 1251, 1256 (1998) (holding that an actionable civil conspiracy "consists of a combination of two or more persons who, by some concerted action, intend to accomplish an unlawful objective for the purpose of harming another, and damage results from the act or acts"); Cummings v. Charter Hosp. of Las Vegas, Inc., III Nev. 639, 645, 896 P.2d 1137, 1141 (1995) (noting that a claim for civil RICO must allege that the defendant committed two or more predicate acts related to criminal racketeering); Wantz v. Redfield, 74 Nev. 196, 198, 326 P.2d 413, 414 (1958) (holding that conversion requires that the defendant wrongfully exerted a distinct act of dominion over the plaintiff's personal property) (emphases added). Accordingly, while Jerry challenges the district court's dismissal with prejudice of these latter claims—only as against the trust defendants—arguing that the district court should have granted him leave to amend them, amendment would have been futile unless his fraudulent inducement claims against William and Kimberly had teeth.

The district court dismissed Jerry's fraudulent inducement claim against William and Kimberly without prejudice and with leave to amend, but Jerry stood on his existing allegations, presumably because he had no additional facts to plead. Then, Jerry and the individual defendants stipulated to convert the district court's initial dismissal without prejudice of the fraudulent inducement claim to one with prejudice; but rather than raising the sufficiency of the facts he did plead on appeal, see Bergenfield v. BAC Home Loans Servicing , 131 Nev. 683, 685-86, 354 P.3d 1282, 1284 (2015) (noting that a party may "choose[ ] to stand on its complaint" by requesting dismissal with prejudice and raising sufficiency of the pleading on appeal), Jerry concedes that they did not present a viable allegation of fraud in the transfer of the property in the first place. See Powell, 127 Nev. at 161 n.3, 252 P.3d at 672 n.3.² And given this concession, no amendment could have cured the additional claims to the extent that they derived from the same core conduct. Steckman v. Hart Brewing, Inc., 143 F.3d 1293, 1298 (9th Cir.1998) (noting that a proposed amended complaint is subject to dismissal with prejudice when the proposed amendment is futile or when the amended complaint would be immediately subject to dismissal itself.); see also Zalk-Josephs Co. v. Wells Cargo, Inc., 81 Nev. 163, 171, 400 P.2d 621, 625 (1965) (upholding a dismissal with prejudice on the pleadings because "[t]here must be some end to the litigation, and appellant may not proceed to advance one theory after another, as a right to recover a judgment against defendant, labeling each new theory as an independent and new cause of action."). Nor were there viable amendments available based on the facts that remained before the district court—the terms of the trust documents themselves expressly negate any claim by Jerry that he had a legitimate interest in the Beaver Creek Property that would otherwise render Series K's retention of it wrongful for the purposes of civil RICO, civil conspiracy, unjust enrichment, or conversion. See In re City Center Constr. & Lien Master Litig., 129 Nev. 669, 676 n.3, 310 P.3d 574, 579 n.3 (2013) (allowing a court to consider outside documents in a motion to dismiss if the pleadings reference them and the parties do not question their contents). Accordingly, the district court's dismissal with prejudice as to the trust defendants was not in error. See Kamelgard v. Macura, 585 F.3d 334, 339 (7th Cir. 2009) (noting that "a dismissal for failure to state a claim is a dismissal on the merits, unless the dismissal order states...