Vagabond Hotels, Inc. v. Cohen

• Decision Date: 23 September 1982
• Docket Number: No. 12883,12883
• Citation: 650 P.2d 807,98 Nev. 398
• Parties: VAGABOND HOTELS, INC., a California corporation, and Vagabond Motor Hotels, Inc., a Nevada corporation, Appellants and Cross-Respondents, v. Robert COHEN, Respondent and Cross-Appellant.
• Court: Nevada Supreme Court

Page 807

650 P.2d 807

98 Nev. 398

VAGABOND HOTELS, INC., a California corporation, and Vagabond Motor Hotels, Inc., a Nevada corporation, Appellants and Cross-Respondents, v. Robert COHEN, Respondent and Cross-Appellant.

No. 12883.

Supreme Court of Nevada.

Sept. 23, 1982.

David Goldwater, Las Vegas, for appellants and cross-respondents.

Reid & Alverson, Las Vegas, for respondent and cross-appellant.

OPINION

MANOUKIAN, Justice:

Appellants and cross-respondents, Vagabond Hotels, Inc. and Vagabond Motor Hotels, Inc. (hereinafter "Vagabond"), challenge the trial court's determination that they unreasonably refused to consent to a proposal by respondent and cross-appellant, Robert Cohen, to build kitchenettes on a portion of the property subject to a lease between the two parties. In a cross-appeal, respondent contends that the lower court erred in not granting him damages.

In July 1970, Cohen sublet to Vagabond that portion of the subject property which faces Las Vegas Boulevard and reserved for his own use an adjoining rear section of the property. Vagabond constructed a motel on the property.

A clause in the lease agreement prohibited Cohen from using his property in a manner which would compete with Vagabond's motel trade. In addition, the lease provided that construction on Cohen's parcel was subject to Vagabond's consent. Such consent could not be unreasonably withheld.

In October 1975, Cohen requested consent from appellants to construct 68 kitchenette units on the reserved parcel. Vagabond's president refused consent, concluding that such construction would violate the conflicting use provision of the lease.

Cohen commenced this action, claiming that the refusal was unreasonable because his proposed use of the property would not conflict with Vagabond's motel operations. The district court agreed. The court found that the only productive use of the property was for multiple unit dwellings, that permanent residents would comprise the only users of the kitchenettes and that Cohen's proposed units would be used only by tenants who did not require nearby parking spaces.

Appellants assert that those findings are erroneous. We recognize that our inquiry is a limited one and the trial court's determination should not be disturbed on appeal if it is supported by substantial evidence. See Pace v. Linton, 97 Nev. 103, 625 P.2d 84 (1981); Soller Corp. v. W. B. C. Development, 96 Nev. 704, 615 P.2d 956 (1980); Jensen v. Brooks, 88 Nev. 651, 503 P.2d 1224 (1972). Our review of the instant record, however, demonstrates that the district court's findings are without substantial factual support. The evidence plainly supports Vagabond's contention that Cohen's proposed project would conflict with its motel operation.

Cohen's basic argument is that he would not be competing in the same economic market as Vagabond. He contends that Vagabond seeks tourist-transient trade, while his 68 kitchenette units would be rented to permanent residents, with minimum stays of a week. Cohen's pre-trial activities belie this contention. Specifically, the November 5, 1973, Clark County Minutes reflect that Cohen filed an application for a variance to "construct a 68-unit addition to existing 87-unit motel, and to provide 96 parking spaces where 155 required in an H-1 (limited resort and apartment zone)." Cohen's exhibit "5," being the variance issued by the Clark County Board of Commissioners, further provides that:

Cohen advised that the Vagabond Motel was...