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Barmettler v. Reno Air Inc.4/16/1998
).
On appeal, this court is "required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment." Bird v. Casa Royale West, 97 Nev. 67, 68, 624 P-2d 17, 18 (1981). A party opposing summary judgment may not rely on the allegations of his pleadings to raise a material issue of fact where the moving party supports his motion with competent evidence. Garvey v. Clark County, 91 Nev. 127, 130, 532 P.2d 269, 271 (1975).
Barmettler raises several procedural issues on appeal, each of which will be discussed in turn.
Whether the district court erred in considering unauthenticated documents when it granted partial summary Judgement on March 10, 1995, as to five of Barmettler's claims.
Barmettler contends that several exhibits were not properly authenticated; therefore, the district court erred in considering them in granting the first summary judgment motion. Further, Barmettler requested Rule 11 sanctions against Reno Air for improper authentication. We conclude that this argument is without merit because any authentication defects were cured before the final Disposition in the court below. Also, several of the exhibits appear to have been self-authenticating in the context of these claims.
Whether the district court erred in entertaining Reno Air's November 20, 1995 motion for summary Judgement on the remaining claims litigated in arbitration.
As to Reno Air's second motion for summary judgment addressing the arbitrated claims (negligence, fraudulent misrepresentation, negligent misrepresentation, intentional infliction of emotional distress), Barmettler insists that the district court improperly reconsidered the same factual issues presented in the first summary judgment motion filed on December 23, 1994. Characterizing Reno Air's second motion for summary judgment as a motion for "reconsideration," Barmettler claims that, pursuant to Washoe District Court Rule 12 (8) the motion was untimely because it was not filed within ten days of the first order. In light of NRCP 56(b), which allows a defending party "at any time, move with or without supporting affidavits for a summary judgment in his favor and because the case had been more fully developed as of the time the second motion was lodged, we conclude that this argument must fail. Accordingly, there was no procedural impediment to Reno Air's second motion for summary judgment on the arbitrated claims.
We now move to the merits of the summary judgment orders.
Fraudulent misrepresentation
Barmettler alleges in his fourth claim for relief that Reno Air made fraudulent representations concerning its drug and alcohol program. Barmettler claims Reno Air induced him into accepting employment in July of 1992, and into entering an alcohol and drug rehabilitation program in November of 1992.
Under Nevada law, Barmettler has the burden of proving each and every element of his fraudulent misrepresentation claim by clear and convincing evidence: (1) A false representation made by the defendant; (2) defendant's knowledge or belief that its representation was false or that defendant has an insufficient basis of information for making the representation; (3) defendant intended to induce plaintiff to act or refrain from acting upon the misrepresentation; and (4) damage to the plaintiff as a result of relying on the misrepresentation. Bulbman Inc. v. Nevada Bell, 108 Nev. 105, 110-11, 825 P.2d 588, 592 (1992); Lubbe v. Barba, 91 Nev. 596, 599, 540 P.2d 115, 117 (1975). Further, " here an essential element of a claim for relief is absent, the facts, disputed or oth
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