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November 2018

Gordon & Rees Las Vegas Team Defeats Motion to Amend Complaint to Add Commercial Owners Association Individual Board Members as Defendants to Ongoing Litigation

Gordon Rees Scully Mansukhani Las Vegas Managing Partner Robert E. Schumacher and Senior Counsel Brian Walters have been representing a commercial owners association and its management company in a bitter and emotionally contentious dispute over inadequate HVAC capacity (as designed) and misallocation of HVAC supply (deficient installation) to the individual unit owners in a large commercial office complex located in the heart of the Las Vegas Valley. The plaintiff, an owner within the building, sued the association and management company claiming that the association was violating her rights under the Covenants Conditions & Restrictions (“CC&R’s”) to her “pro rata share of HVAC capacity.” The plaintiff claims damages in excess of $600,000.

The plaintiff recently moved to amend her complaint to add causes of action for unjust enrichment and conversion against the association’s board members and a breach of contract claim against the management company. Gordon & Rees’ attorneys filed an opposition to the motion in which it argued that, although “leave shall be freely given when justice so requires,” the new claims proposed by the plaintiff were futile and leave to amend should therefore be denied. Specifically, the firm’s attorneys argued: (1) The plaintiff’s unjust enrichment cause of action failed to state a claim because the plaintiff did not allege that it conferred a benefit on the individual board members; (2) The plaintiff’s proposed conversion claim was barred by the statute of limitations; and (3) The plaintiff’s proposed contract-based claims against the management company failed to state claims because the plaintiff did not allege a contract existed with the management company.

On November 6, 2018, Walters argued the motion before District Court Judge Susan Johnson. On November 9, 2018, the court issued an order denying the plaintiff’s motion.  The court’s order essentially adopted Gordon & Rees’ briefing and prevented the plaintiff from bringing the board members into the litigation and asserting the new claims against the management company. The clients are now contemplating a motion for attorneys’ fees under the CC&R’s.

Robert E. Schumacher
Brian K. Walters