MARIA LOPEZ AND ENRIQUE SANCHEZ RICO v. LETICIA LOPEZ INDIVIDUALLY AND THE LETICIA LOPEZ REVOCABLE LIVING TRUST (2026)

ORDER OF AFFIRMANCE

This is an appeal from a district court order dismissing a complaint in a dispute over real property. Eighth Judicial District Court, Clark County; Susan Johnson, Judge.

Having considered the parties’ arguments and the record, we conclude that the district court correctly granted respondents’ NRCP 12(b)(5) motion to dismiss. See Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008) (recognizing that this court reviews de novo a district court's NRCP 12(b)(5) dismissal and that dismissal under NRCP 12(b)(5) is appropriate when, accepting the complaint's factual allegations as true, the plaintiff could prove no set of facts for which relief can be granted).

As a threshold matter, we clarify the scope of the issues before us. First, we do not construe appellants’ complaint as alleging that they were wrongfully evicted from the subject property for defaulting on a lease agreement as tenants. Rather, appellants’ complaint alleges that respondents breached an oral agreement to convey the subject property to appellants once appellants paid off respondents’ mortgage. Cf Senjab v. Alhulaibi, 137 Nev. 632, 633-34, 497 P.3d 618, 619 (2021) (observing that this court relies on the parties to frame the issues and that “[w]e will not supply an argument on a party's behalf but review only the issues the parties present’’ (citing Pelkola v. Pelkola, 137 Nev. 271, 273, 487 P.3d 807, 809 (2021))).

Second, although appellants contend that they are entitled to an “equitable mortgage,” we are not persuaded that this concept is applicable here. Namely, an “equitable mortgage” is a remedy wherein a court can allow a lender (here, respondents) to foreclose on the subject property when the borrowers (here, appellants) have defaulted on a loan even though the agreement between them does not expressly allow the lender to do so. See Flyge v. Flynn, 63 Nev. 201, 225, 166 P.2d 539, 549-50 (1946); Topaz Mut. Co., Inc. v. Marsh, 108 Nev. 845, 855, 839 P.2d 606, 612 (1992); see generally Restatement (Third) of Property (Mortgages) § 3.2 (1997) (recognizing that the concept of an “equitable mortgage” benefits a lender who did not have a formal security agreement with the purchaser). Thus, to the extent that appellants contend they were current on their monthly payments or that they are entitled to an “equitable mortgage,” we do not perceive those contentions to be relevant to our resolution of this appeal. Rather, we focus on appellants’ arguments that the parties’ oral agreement is not bound by NRS 111.205’s statute of frauds pertaining to real-property conveyances.

Appellants generally contend that respondents should be estopped from relying on the statute of frauds. But as the district court accurately observed, an exception to the statute of frauds (here, estoppel) can apply only when the terms of the parties’ oral contract are “clearly and definitely established.’ ” Jones v. Barnhart, 89 Nev. 74, 76, 506 P.2d 430, 431 (1973) (quoting Evans v. Lee, 12 Nev. 393, 399 (1877)). Here, the district court found that appellants’ complaint failed to clearly and definitely establish the terms of the parties’ oral agreement for the following reasons:

Specifically, the alleged oral agreement does not [(1)] specify a time by which the Plaintiffs would have to pay off the deed of trust; [(2)] does not state when, to whom, or how the Plaintiffs would make payments on the deed of trust; [(3)] whether LETICIA would be permitted to refinance or modify the deed of trust; [(4)] whether LETICIA could further encumber the subject property with additional deeds of trust or liens; [(5)] what would happen in the event of a default by the Plaintiffs; [(6)] who was responsible for payment of the utilities, property taxes, or property insurance on the Property, [7] who would have possession of the subject property during the undefined time for performance; or [(8)] who would be responsible for maintenance, upgrades, or improvements to the subject property, among numerous other conceivable scenarios.

Appellants do not contest or otherwise address these findings in their opening brief As such, we cannot conclude that the district court committed reversible error in determining that appellants’ complaint failed to sufficiently allege that the terms of the parties’ oral agreement were clearly and definitely established so as to implicate an exception to NRS 111.205’s statute of frauds. Jones, 89 Nev. at 76, 506 P.2d at 431. We therefore need not address appellants’ other arguments regarding whether they have satisfied an estoppel-based exception to the statute of frauds. Id.; see also Summa Corp. v. Greenspun, 96 Nev. 247, 253, 607 P.2d 569, 572 (1980) (“In order for [part performance] to defeat the statute [of frauds], the terms of the oral agreement must be definitely established.”). And because appellants failed to sufficiently allege a clearly and definitely established oral contract, we conclude that their tort-based claims necessarily fail, in that they were premised on respondents tortiously violating the contract.

Appellants alternatively contend that the district court should have granted them leave to amend their complaint or, relatedly, that the district court should have treated respondents’ NRCP 12(b)(5) motion as a motion for summary judgment. We are not persuaded. See Gardner v. Eighth Jud. Dist. Ct., 133 Nev. 730, 732-33, 405 P.3d 651, 654 (2017) (“This court reviews the denial of a motion for leave to amend a complaint for an abuse of discretion.”). First, appellants’ April 4 opposition to respondents’ NRCP 12(b)(5) motion did not include a proposed amended complaint, as is required under EDCR 2.30. Second, and relatedly, appellants did not ask the district court to construe their April 4 opposition as one opposing summary judgment, such that the district court was not prompted to consider the documents attached to appellants’ April 4 opposition. Nor did appellants mention these issues at the April 22 hearing. In light of these circumstances, we cannot conclude that the district court abused its discretion in denying appellants leave to amend their complaint or in declining to treat respondents’ NRCP 12(b)(5) motion as a motion for summary judgment. Gardner, 133 Nev. at 732-33, 405 P.3d at 654.

In sum, given that appellants’ claims are all based on the existence of an oral contract that was not “clearly and definitely established” in appellants’ operative complaint, we agree that the district court correctly granted respondents’ NRCP 12(b)(5) motion with respect to all of appellants’ claims, Buzz Stew, 124 Nev. at 228, 181 P.3d at 672. And given the underlying motion practice, we are not persuaded that the district court abused its discretion in denying appellants leave to amend their complaint. Gardner, 133 Nev. at 732-33, 405 P.3d at 654. Consistent with the foregoing, we

ORDER the judgment of the district court AFFIRMED.

Bell, J.

Stiglich, J.

Cadish, J.