                       IN THE SUPREME COURT OF THE STATE OF NEVADA

                                                                                   VI

                ALBERT D. MASSI, AN INDIVIDUAL,                       No. 68483
                Appellant,
                vs.
                                                                                    FILED
                DONALD NOBIS; AND MARY NOBIS,                                           APR 1 5 2016
                AS INDIVIDUALS,                                                   TRACE K LINDEMAN
                                                                               CLERK OF SUPREME COU T
                Respondents.
                ALBERT D. MASSI, AN INDIVIDUAL,                       No. 687189         DEPUTY CLERK(


                Appellant,
                vs.
                DONALD NOBIS; AND MARY NOBIS,
                AS INDIVIDUALS,
                Respondents.

                         ORDER AFFIRMING IN PART, REVERSING IN PART
                             AND REMANDING (DOCKET NO. 68483),
                              AND VACATING (DOCKET NO. 68719)
                           These are appeals from a district court summary judgment
                (Docket No. 68483) and a post-judgment award of costs (Docket No. 68719)
                in a contract action. Eighth Judicial District Court, Clark County; James
                Crockett, Judge.
                Docket No. 68483
                           The parties agreed to dismiss a previous action as a result of a
                settlement agreement entered into before the district court judge. Under
                the agreement, respondents agreed to transfer their interest in certain
                property to appellant in exchange for dismissal. Prior to entering into
                that settlement agreement, respondents represented to appellant that
                they had originally invested $500,000 in one of the properties, when in
                fact, they had only invested $250,000. Appellant brought the underlying
                action and the district court converted respondents' NRCP 12(b)(5) motion
                to dismiss to a motion for summary judgment before granting the motion.

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                               The district court properly converted the motion to dismiss to
                   a motion for summary judgment as the court considered evidence outside
                   of the pleadings.   See NRCP 12(b) (providing that if the court considers
                   matters outside of the pleadings in reviewing an NRCP 12(b)(5) motion,
                   "the motion shall be treated as one for summary judgment"). The district
                   court also properly granted respondents summary judgment on appellant's
                   breach of contract, unjust enrichment, and punitive damages causes of
                   action. See Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029
                   (2005) (explaining that this court reviews a district court's order granting
                   summary judgment de novo). There is no genuine issue of material fact
                   regarding whether respondents' original investment was made a material
                   term of the settlement agreement as it was not included in the recitation
                   of the settlement agreement accepted by the district court judge. Massi v.
                   Nobis, Docket No. 66001 (Order of Affirmance, Feb. 26, 2016). And
                   respondents have transferred their interest in the subject property as
                   required by the settlement agreement. Additionally, punitive damages is
                   not a cause of action, but a remedy, and as a remedy, such damages may
                   still be available on any remaining causes of action.   See Doe v. Colligan,
                   753 P.2d 144, 145 n.2 (Alaska 1988) ("Punitive damages do not constitute
                   a cause of action."). Thus, we affirm the district court's summary
                   judgment regarding appellant's causes of action for breach of contract,
                   unjust enrichment, and punitive damages.
                               We conclude, however, that the district court erred in granting
                   summary judgment concerning appellant's causes of action for negligent
                   misrepresentation and fraud, intentional misrepresentation, and
                   fraudulent concealment because genuine issues of material fact exist
                   regarding these claims.   Wood, 121 Nev. at 729, 121 P.3d at 1029. While

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                the district court granted summary judgment on the fraud-based claim
                because the original investment amount was not a material term to the
                settlement agreement, the district court erred in doing so because even if
                the amount was not a material term to the agreement, it may still have
                been a material fact underlying the parties' agreement.        See Nelson v.
                Heer, 123 Nev. 217, 225, 163 P.3d 420, 426 (2007) (outlining the factors for
                intentional misrepresentation and providing that "the suppression or
                omission of a material fact" can constitute a false representation (internal
                quotation omitted and emphasis added)).
                            Appellant provided the district court with declarations of
                value signed by respondents providing that their interest in the subject
                property was $500,000 and alleged that he would not have entered into
                the agreement if he had known it was less. And while appellant had
                already invested in the same property, it is unclear from the evidence in
                the record whether such an investment would prevent appellant from
                justifiably relying on respondents' representation regarding their interest.
                See Collins v. Burns, 103 Nev. 394, 397, 741 P.2d 819, 821 (1987)
                (explaining that a lack of justifiable reliance bars recovery for the opposing
                party's intentional misrepresentation). Because genuine issues of
                material fact exist concerning appellant's causes of action for negligent
                misrepresentation and fraud, intentional misrepresentation, and
                fraudulent concealment, we reverse the district court's summary judgment
                of those claims and remand this matter to the district court for
                proceedings consistent with this order.
                Docket No. 68719
                            In light of our decision to reverse in part the district court's
                summary judgment order, we vacate the district court's award of costs to

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                respondents as the prevailing parties under NRS 18.020(3) that is being
                challenged in Docket No. 68719.
                           It is so ORDERED.



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                cc: Hon. James Crockett, District Judge
                     Lansford W. Levitt, Settlement Judge
                     Cap & Kudler
                     Hutchison & Steffen, LLC
                     Eighth District Court Clerk




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