Before Justices Saitta, Hardesty and Parraguirre. Opinion by Justice Saitta.
This action arose from violations of NRS Chapter 645, which governs the duties of real estate professionals in real estate transactions. First addressing an evidentiary issue, the Court held that an offer to settle a dispute is not admissible to prove the failure to mitigate damages because the failure to mitigate goes to the amount of the claim, a use of such evidence specifically barred by NRS 48.105. The Court next concluded that NRS 645.251, which provides that a real estate licensee need not “comply with any principles of common law that may otherwise apply to any of the duties of the licensee as set forth in NRS 645.252, 645.253 and 645.254,” does not bar all common law claims against real estate professionals but prohibits common law claims for conduct governed by those statutes. As such, NRS 645.251 prevents suits against real estate professionals for fraudulent concealment where the duty to disclose is governed by NRS 645.252-645.254. The exclusive remedy for such failures to disclose is a cause of action for breach of the statutory duty. In contrast, a broker may be held liable under common law for an agent’s failure to disclose because supervisory liability is not conduct covered by NRS 645.252-645.254. Next, the Court addressed the proper measure of damages for a breach of the statutory duty to disclose. Based on the language of NRS 645.257, which allows for the recovery of “actual damages,” the Court held that only compensatory and not punitive damages could be recovered for a real estate professional’s breach of a statutory duty. The Court further held that the diminution in value of the property purchased because of the failure to disclose and the carrying costs for maintaining that property were a proper measure of damages. The Court also reiterated that the economic loss doctrine does not bar recovery of purely economic damages for claims involving intentional breaches of duties that arise independent from a contractual duty. Affirmed in part, reversed in part, and remanded for further proceedings. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson LLP.)
