FILED
NOT FOR PUBLICATION JUN 08 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRAD BAILEY, No. 08-17674
Plaintiff - Appellant, D.C. No. 2:07-cv-00178-KJD-LRL
v.
MEMORANDUM *
STEVE ABBOTT,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Submitted May 14, 2010 **
San Francisco, California
Before: HUG and McKEOWN, Circuit Judges, and FAWSETT, Senior District
Judge.***
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
On the motion of the parties, the panel unanimously concludes this
case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Patricia C. Fawsett, Senior United States District
Judge for the Middle District of Florida, sitting by designation.
This case presents an issue of contract interpretation under Nevada law.
Brad Bailey and Steve Abbott agreed to form a limited liability company to run a
proposed self-storage business (“the Company”). Pursuant to the integrated
operating agreement signed by the parties, Bailey agreed to pay Abbott $12,000
upon execution and make payments to the Company. Abbott agreed to “contribute
his property interest” in the parcel of land where the self-storage facility would be
built.
Bailey sued for breach of contract and fraudulent inducement, alleging that
Abbott breached the agreement because the property he contributed was
encumbered by a lien. Bailey also alleges that Abbott fraudulently induced
Bailey’s agreement to the contract by failing to disclose the lien, and never
intended to perform his obligations.
The district court granted Abbott’s motion for summary judgment, holding
Bailey could not show that Abbott breached the contract, provided no evidence to
raise a genuine issue on the question of fraudulent inducement, and could not
obtain specific performance because Bailey himself had not performed.
Bailey asserts that the district court erred by failing to consider extrinsic
evidence in construing the agreement. We do not reach this question. Bailey was
obligated to pay Abbott $12,000 concurrent with the execution of the agreement,
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but failed to do so. Bailey raised no genuine issue of material fact suggesting he
performed and therefore may not enforce the agreement against Abbott or obtain
specific performance. Serpa v. Darling, 810 P.2d 778, 782 (Nev. 1991).
The grant of summary judgment was also proper as to the fraud claim, as
Bailey admitted in deposition testimony that he believed Abbott intended to
perform when he executed the agreement. Bulbman, Inc. v. Nevada Bell, 825 P.2d
588, 592 (Nev. 1992).
AFFIRMED.
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