Bird v. Casa Royale West

• Decision Date: 25 February 1981
• Docket Number: No. 12022,12022
• Citation: 624 P.2d 17,97 Nev. 67
• Parties: Allen S. BIRD, Appellant, v. CASA ROYALE WEST, a limited Partnership, Will Roberts, Olind Jenni, General Partners Casa Royale East, a limited Partnership, Will Roberts, Olind Jenni, General Partners Venetian Apartments, a limited Partnership, formerly known as Caesar's Apartments, a limited Partnership, Will Roberts, Olind Jenni, General Partners, Romal Villas, a limited Partnership, formerly known as Cleopatra Apartments, a limited Partnership, Will Roberts, Olind Jenni, General Partners and Will Roberts Corporation, a Nevada Corporation, Respondents.
• Court: Nevada Supreme Court

Page 17

624 P.2d 17

97 Nev. 67

Allen S. BIRD, Appellant, v. CASA ROYALE WEST, a limited Partnership, Will Roberts, Olind Jenni, General Partners Casa Royale East, a limited Partnership, Will Roberts, Olind Jenni, General Partners Venetian Apartments, a limited Partnership, formerly known as Caesar's Apartments, a limited Partnership, Will Roberts Olind Jenni, General Partners, Romal Villas, a limited Partnership, formerly known as Cleopatra Apartments, a limited Partnership, Will Roberts, Olind Jenni, General Partners and Will Roberts Corporation, a Nevada Corporation Respondents.

No. 12022.

Supreme Court of Nevada.

Feb. 25, 1981.

Donald W. Haley, Las Vegas, for appellant.

Harding & Zervas, Las Vegas, for respondent Will Roberts.

John Peter Lee, Las Vegas, for respondent Olind Jenni.

OPINION

MANOUKIAN, Justice:

In this appeal, we are 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 in favor of respondents-defendants. We hold that it did not and affirm.

Appellant Bird instituted this suit against respondent Casa Royale West, hereinafter referred to as "West," and others seeking specific performance, or alternatively, damages resulting from the alleged breach of a contract between the parties for the sale of certain real property in Clark County. West filed an answer alleging, inter alia, that Bird had failed to perform under the contract. Thereafter, West filed a motion for summary judgment, which was opposed by appellant. Without oral argument, the trial court entered an order granting the motion.

West's primary basis for its claim that Bird failed to perform the contract is Bird's failure to deposit $40,000 into escrow as required by the contract. The contract, in relevant part, provides:

3. An additional sum of dlrs 40,000.00 will be deposited by buyer into escrow upon his approval of premises and records, not later than November 8th, 1976, at 6:00 p. m. The total sum of dlrs 60,000.00 deposited by buyer to be applied dlrs 15,000.00 for each of the 4 escrows.

6. ... buyer will submit proposed contract forms and buyers financial statements to seller not later than November 8, 1976 for sellers review. Transactions are subject to both parties agreeing on and approving the contract forms not later than November 15, 1976.

Pursuant to the contract, Bird submitted his November 8, 1976 check in the sum of $40,000.00 to Title Insurance. On November 14, 1976, Bird and respondent, Olind Jenni, General Partner with West, entered into a written supplemental agreement which provided in part: "the approval of contract of sale by both parties is hereby extended until 6:00 p. m. November 20, 1976.

Thereafter, on November 20, 1976, in a letter from Title Insurance, respondent, Will Roberts, was informed that the check for $40,000.00 had been returned unpaid. At no time during the course of negotiations or during the continuation of the escrow did West or any one in its behalf receive from appellant the financial statements or contract forms required to consummate the transaction. In February 1977, Bird successfully demanded the return of an initial $20,000.00 that had been deposited in escrow.

Pursuant to NRCP 56(c), summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions and affidavits on file, show that there exists no genuine issue as to any material fact, and that the moving party is entitled to judgment as a matter of law. Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1965). NRCP 56(e) ¹ provides in part that when a motion for summary judgment is made and supported as required by NRCP 56, the adverse party may not rest upon the "mere allegations of his pleading, but must, by affidavit or otherwise, set forth facts demonstrating the existence of a genuine issue for trial." Garvey v. Clark County, 91 Nev. 127, 130, 532 P.2d 269, 271 (1978); Adamson v. Bowker, 85 Nev. 115, 118-20, 450 P.2d 796, 799-800 (1969). Appellant's affidavit stated, inter alia that

3. At all times affiant was and is ready, willing and able to close the transaction which is the subject of this suit.

4. The $40,000.00 check for part of the down payment was never honored because affiant was advised by Defendant's accountant that Defendant did not intend to honor the contract between the parties and close the sale as required thereby ....

Citing Kahle v. Kostiner, 85 Nev. 355, 358, 455 P.2d 42, 44 (1969), appellant asserts that allegation 4 above manifests a "definite unequivocal and absolute intent not to perform a substantial portion of the contract" and...