                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                 EVANGELINE G. BATISTA; AND                           No. 64125
                 ZENAIDA G. CONCEPCION,
                 Appellants,
                 vs.
                 SALVADOR WONG; PATRIA
                 PIMENTEL; AND AMANTI PIMENTEL,
                 Respondents.
                                                                          FILED
                 SALVADOR WONG,
                 Appellant,
                                                                          904 1 4 2016
                 vs.                                                     TRAC1E K. UNDEMAN
                                                                      CLERK F SUPREME COURT
                 S. JONES 300, L.P., A DOMESTIC                      BY
                                                                          DEPUTY CLERK
                 LIMITED PARTNERSHIP,
                 Respondent.

                 PATRIA PIMENTEL; AND AMANTI
                 PIMENTEL,
                 Appellants,
                 vs.
                 S. JONES 300, L.P., A DOMESTIC
                 LIMITED PARTNERSHIP; AND
                 RICHARD DIIORIO,
                 Respondents.

                                     ORDER AFFIRMING IN PART,
                                 REVERSING IN PART AND REMANDING
                            This is an appeal from a district court judgment in a breach of
                 contract action. Eighth Judicial District Court, Clark County; Douglas
                 Smith, Judge.
                            The appellants all signed personal guarantees guaranteeing
                 the payment of rent for leased commercial space from respondent S. Jones
                 300, L.P. Each of the appellants was involved in running a restaurant in
                 the space at one time or another during the term of the lease. Because
                 appellants Patria and Amanti Pimentel failed to pay rent under the lease,
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                    Jones filed the underlying breach of contract action against the appellants.
                    The Pimentels filed counterclaims against Jones and respondent Richard
                    DiIorio for fraud, unjust enrichment, and intentional infliction of
                    emotional distress. Appellants Evangeline Batista and Zenaida
                    Concepcion filed cross-claims against the Pimentels and appellant
                    Salvador Wong for indemnification. The Pimentels failed to file an answer
                    to the cross-claim. After a trial, the district court dismissed the Pimentels'
                    counterclaims, denied Batista and Concepcion's cross-claims, and entered
                    a judgment in Jones's favor for $101,736.98.
                                Having considered the parties' arguments and the record on
                    appeal, we conclude that the district court erred in calculating the
                    damages award. While the court properly calculated and awarded Jones
                    unpaid rents, late charges, and the returned check fee, substantial
                    evidence does not support the award of $14,000 for roof damages because
                    those damages were never pled in the complaint and substantial evidence
                    does not support the inclusion in the award of $8,448 reflecting the
                    security deposit retained by Jones.       Sowers v. Forest Hills Subdivision,
                    129 Nev., Adv. Op. 9, 294 P.3d 427, 432 (2013) (providing that this court
                    will uphold a district court's factual findings if they are supported by
                    substantial evidence). Thus, we reverse the damages award and remand
                    this matter for the district court to determine the prejudgment interest
                    based on the reduced damages award. 1




                          'We conclude, however, that the attorney fees award to Jones does
                    not need to be reduced as a result of the damages award reduction because
                    the personal guarantees require the guarantors to pay Jones' reasonable
                    attorney fees.


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                            We affirm the district court's dismissal of the Pimentels'
                counterclaims because they failed to establish fraud, unjust enrichment, or
                intentional infliction of emotional distress. Certified Fire Prot. Inc. v.
                Precision Constr. Inc., 128 Nev., Adv. Op. 35, 283 P.3d 250, 257 (2012)
                (unjust enrichment); Barmettler v. Reno Air, Inc., 114 Nev. 441, 446-47,
                956 P.2d 1382, 1386 (1998) (fraud); Star v. Rabello, 97 Nev. 124, 125, 625
                P.2d 90, 91-92 (1981) (intentional infliction of emotional distress). We also
                affirm the district court's denial of Batista and Concepcion's cross-claim
                for indemnification against Wong because they were not third-party
                beneficiaries of Wong's personal guaranty.      See Pack v. LaTourette, 128
                Nev., Adv. Op. 25, 277 P.3d 1246, 1249 (2012) (explaining that equitable
                indemnification requires "some duty on the part of the primary tortfeasor
                to protect the secondary tortfeasor" (quoting Doctors Co.      IX   Vincent, 120
                Nev. 644, 654, 98 P.3d 681, 688 (2004))); Lips/tie v. Tracy Inv. Co., 93 Nev.
                370, 379, 566 P.2d 819, 824-25 (1977) (providing that in order to obtain
                third party beneficiary status, "there must clearly appear a promissory
                intent to benefit the third party, and ultimately it must be shown that the
                third party's reliance thereon is foreseeable" (internal citation omitted)).
                            We, however, reverse the district court's denial of Batista and
                Concepcion's cross-claim for indemnification against the Pimentels. The
                Pimentels never answered the cross-claim, and thus, have admitted to
                Batista and Concepcion's allegations for indemnity,           see NRCP 8(d)
                (providing that lalverments in a pleading to which a responsive pleading
                is required, other than those as to the amount of damage, are admitted
                when not denied in the responsive pleading"), and they failed to challenge
                or address in any manner at trial Batista and Concepcion's argument for
                indemnity. Because when a party is eligible for indemnity, the indemnitee

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                is entitled to recover from the indemnitor attorney fees and costs incurred
                in defending the primary action, Piedmont Equip. Co. v. Eberhard Mfg.
                Co., 99 Nev. 523, 529, 665 P.2d 256, 260 (1983), we remand this matter to
                the district court to determine whether Batista and Concepcion are
                entitled to attorney fees from the Pimentels.
                            It is so ORDERED.



                                                                                          J.
                                                            Hardesty


                                                                                          J.
                                                            Saitta


                                                                       PiekutiAl         J.
                                                            Pickering




                cc: Hon. Douglas Smith, District Judge
                     Amanti Pimentel
                     Olson, Cannon, Gormley, Angulo & Stoberski
                     Accelerated Law Group
                     Patria P. Pimentel
                     Premier Legal Group
                     Eighth District Court Clerk




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