Riverwood Partners, LLC v. Max Baer Productions, Ltd.

FILED
NOT FOR PUBLICATION MAR 20 2014

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

RIVERWOOD PARTNERS, LLC, a No. 12-15436
Nevada limited liability company,
D.C. No. 3:10-cv-00668-RCJ-VPC
Plaintiff - Appellant, District of Nevada,
Reno
v.

MAX BAER PRODUCTIONS, LTD., a MEMORANDUM*
California corporation,

Defendant - Appellee.

RIVERWOOD PARTNERS, LLC, a No. 12-15581
Nevada limited liability company,
D.C. No. 3:10-cv-00668-RCJ-VPC
Plaintiff - Appellee, District of Nevada,
Reno
v.

MAX BAER PRODUCTIONS, LTD., a
California corporation,

Defendant - Appellant.

*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.
MAX BAER PRODUCTIONS, LTD, a No. 12-16743
California corporation,
D.C. No. 3:09-cv-00512-RCJ-
Plaintiff - Appellant, RAM
District of Nevada,
v. Reno

RIVERWOOD PARTNERS, LLC, a
Nevada Limited-Liability Company,

Defendant - Appellee.

MAX BAER PRODUCTIONS, LTD, a No. 12-17811
California corporation,
D.C. No. 3:09-cv-00512-RCJ-
Plaintiff - Appellee, RAM
District of Nevada,
v. Reno

RIVERWOOD PARTNERS, LLC, a
Nevada Limited-Liability Company,

Defendant - Appellant.

Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, District Judge, Presiding

Submitted February 11, 2014**
San Francisco, California

**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Before: TALLMAN and RAWLINSON, Circuit Judges, and GARBIS,
Senior District Judge.***

Max Baer Productions (“Baer”) appeals the district court’s dismissal of its

breach of contract claims and the district court’s dismissal of its counterclaim for

conversion in the deficiency action filed by Riverwood Partners (“Riverwood”).

Riverwood appeals the district court’s denial of attorneys’ fees in the contract

action as well as the district court’s grant of summary judgment to Baer in the

deficiency action. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm.

It is clear from the face of the parties’ agreement that Riverwood’s

development obligations were not yet due, and Baer’s remedies for Riverwood’s

failure to complete the development work were limited to Baer’s assuming

completion of the work itself and seeking Riverwood’s pro rata share of the costs.

See United Rentals Highway Techs., Inc. v. Wells Cargo, Inc., 289 P.3d 221, 229

(Nev. 2012) (holding that a court will not “attempt to increase the legal obligations

of the parties where the parties intentionally limited such obligations”). Because

no breach existed under the parties’ agreement, and because Baer did not seek any

damages, we affirm the district court’s dismissal of Baer’s contract claims.

***
The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.

3
We also affirm the district court’s dismissal of Baer’s conversion claim

because Baer abandoned its claim on appeal when it failed to cite to the record or

to any legal authority in its opening brief. See Indep. Towers of Washington v.

Washington, 350 F.3d 925, 929 (9th Cir. 2003) (noting that bare assertions of

issues do not preserve claims).

Riverwood failed to provide the statutorily mandated evidence of the

predicate foreclosure sale. See Nev. Rev. Stat. § 40.455 (providing that a court

shall award a deficiency judgment to the beneficiary of a deed of trust “if it appears

from the sheriff’s return or the recital of consideration in the trustee’s deed that

there is a deficiency of the proceeds of the sale and a balance remaining due”). The

fact that Riverwood was later able to present the district court with a signed

trustee’s deed was not grounds to reconsider the court’s previous order. See Sch.

Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (holding that the

“overwhelming weight of authority is that the failure to file documents in an

original motion or opposition does not turn the late filed documents into ‘newly

discovered evidence’” for a motion for reconsideration). Accordingly, we affirm

the district court’s grant of Baer’s motion for summary judgment and denial of

reconsideration.

4
Riverwood is not entitled to attorneys’ fees on any of its claims. The

agreement expressly limited reasonable attorneys’ fees to “prevailing” parties. The

district court did not abuse its discretion when it found that neither Baer nor

Riverwood was a prevailing party under the agreement because the district court

had dismissed all of the claims and counterclaims.

Likewise, Riverwood is not entitled to attorneys’ fees pursuant to Nev. Rev.

Stat. § 17.115. The district court did not abuse its discretion by failing to award

Riverwood attorneys’ fees under Nev. Rev. Stat. § 17.115 because the district court

expressly considered each of the Beattie factors. See Beattie v. Thomas, 668 P.2d

268, 274 (Nev. 1983).

Riverwood is not entitled to attorneys’ fees pursuant to Nev. Rev.

Stat. §§ 7.085 or 18.010. The district court did not abuse its discretion when it

decided that awarding Riverwood attorneys’ fees was inappropriate because there

was “no reasonable basis for suit for breach of contract by either party in this

case,” and Riverwood’s counterclaims were equally groundless. See Nev. Rev.

Stat. §§ 7.085, 18.010 (providing that the statutes should be liberally construed in

favor of awarding attorneys’ fees, but only “in all appropriate situations”).

AFFIRMED.