IN THE SUPREME COURT OF THE STATE OF NEVADA
VINCENT T. SCHETTLER; AND No. 66725
VINCENT T. SCHETTLER, TRUSTEE
OF VINCENT T. SCHETTLER LIVING
TRUST, FILED
Appellants,
vs.
MAY 1 2 2016
RALRON CAPITAL CORPORATION, A IE EMAN
NEVADA CORPORATION, 5'.t
P
i 1;4/40
Y LERK
Respondent.
VINCENT T. SCHETTLER; AND No. 67035
VINCENT T. SCHETTLER, TRUSTEE
OF THE VINCENT T. SCHETTLER
LIVING TRUST,
Appellants,
vs.
RALRON CAPITAL CORPORATION, A
NEVADA CORPORATION,
Respondent.
ORDER OF AFFIRMANCE
These are consolidated appeals from a district court summary
judgment entered on remand in a contract action and a post-judgment
award of attorney fees and costs. Eighth Judicial District Court, Clark
County; Elissa F. Cadish, Judge.
Docket No, 66725
Appellants first contend that the district court lacked subject
matter jurisdiction because respondent failed to establish that it had
standing to enforce the Loan Documents. We disagree. See Arguello v.
Sunset Station, Inc., 127 Nev. 365, 368, 252 P.3d 206, 208 (2011)
(recognizing that "[s]tanding is a question of law reviewed de novo"). In
conjunction with respondent's first motion for summary judgment,
respondent produced an affidavit in which the affiant attested that
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respondent acquired the Loan Documents from the FDIC. This evidence,
particularly in the absence of contrary evidence, was sufficient to
demonstrate that respondent had standing to enforce the Loan
Documents. 1 Thus, in granting respondent's second motion for summary
judgment, the district court correctly determined that there was an
evidentiary basis to support respondent's status as the real party in
interest with standing to enforce the Loan Documents. See id. (observing
that the issue of standing "overlaps with" the inquiry into whether a party
is a real party in interest under NRCP 17(a)).
Similarly, the district court also correctly found that
appellants had not previously challenged that evidentiary basis and had
also previously acknowledged that respondent was the real party in
interest. Based on those findings, the district court was within its
discretion in denying appellants' request to conduct additional discovery
on the issue of whether respondent was the real party in interest. Cf.
Choy v. Ameristar Casinos, Inc., 127 Nev. 870, 872, 265 P.3d 698, 700
(2011) (recognizing that a district court has the discretion to grant or deny
a continuance of a motion for summary judgment to allow further
discovery). Accordingly, we conclude that appellants' argument regarding
subject matter jurisdiction does not warrant reversal of the district court's
summary judgment.
'Although appellants suggest for the first time on appeal that this
evidence was not "admissible," they do not articulate a basis for that
suggestion. Cf. Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330
n.38, 130 P.3d 1280, 1288 n.38 (2006) (explaining that this court need not
consider arguments that are not cogently made and supported by salient
authority).
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Appellants next contend that an issue of material fact exists
as to whether respondent 2 waived its contractual rights to freeze Vincent
Schettler's line of credit and to declare him in default. Specifically,
appellants contend that a waiver occurred by virtue of (1) respondent
sending the Commitment Letter, (2) disbursing two draws on the line of
credit at a time when respondent was aware of Schettler's updated
financial condition; or, alternatively (3) accepting an interest payment
from Schettler. We disagree. See Wood v. Safeway, Inc., 121 Nev. 724,
729, 121 P.3d 1026, 1029 (2005) (reviewing de novo a district court's
decision to grant summary judgment). The district court correctly
determined that neither respondent's Commitment Letter nor its
acceptance of an interest payment was conduct inconsistent with
respondent's contractual rights under the Loan Documents. Cf. Hudson v.
Horseshoe Club Operating Co., 112 Nev. 446, 457, 916 P.2d 786, 792 (1996)
("Waiver occurs where a party knows of an existing right and . . . exhibits
conduct so inconsistent with an intent to enforce the right as to induce a
reasonable belief that the right has been relinquished."). And to the
extent that respondent's disbursement of two draws could plausibly be
construed as inconsistent conduct, we agree with the district court's
construction and application of the Business Loan Agreement's "No
Waiver By Lender" provision. 3 See May v. Anderson, 121 Nev. 668, 672,
2 Forthe sake of clarity, we refer to Silver State Bank and
respondent collectively as "respondent."
3 We have not considered appellants' argument, raised for the first
time in their reply brief, that the "No Waiver By Lender" provision could
itself be waived. See Francis v. Wynn Las Vegas, LLC, 127 Nev. 657, 671
n.7, 262 P.3d 705, 715 n.7 (2011).
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119 P.3d 1254, 1257 (2005) ("Contract interpretation is subject to a de
novo standard of review.").
Appellants lastly contend that an issue of material fact exists
as to whether respondent anticipatorily breached the Loan Documents.
Specifically, appellants contend that a breach occurred because
respondent sent the Default Letter at a time when (1) Schettler was
current on his interest payments, and (2) the offer in the Commitment
Letter was still pending. Again, we disagree. Appellants have not
identified any contractual language that prohibited respondent from
freezing Schettler's line of credit and declaring him in default at a time
when he was current on his interest payments. To the contrary, the
district court found that there was evidence to support at least eight
occurrences that constituted a default under the Loan Documents, none of
which appellants contest on appeal. Similarly, appellants have not
identified any contractual language suggesting that the Commitment
Letter was a part of the Loan Documents, such that an arguable breach of
the Commitment Letter would constitute a breach of the Loan Documents.
The district court therefore correctly determined that no issue of material
fact existed regarding whether respondent anticipatorily breached the
Loan Documents. See Wood, 121 Nev. at 729, 121 P.3d at 1029; May, 121
Nev. at 672, 119 P.3d at 1257.
In light of the foregoing, we affirm the district court's
summary judgment being challenged in Docket No. 66725.
Docket No. 67035
Aside from contending that the award of attorney fees and
costs should be reversed if the summary judgment is reversed, appellants
make no arguments regarding the propriety of that award. Thus, in light
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of our resolution of the appeal in Docket No. 66725, we affirm the award of
fees and costs being challenged in Docket No. 67035.
It is so ORDERED.
Ao.A , J.
Harplesty
Saitta
, J.
cc: Hon. Elissa F. Cadish, District Judge
Schwartz Flansburg PLLC
Feldman Graf
Robison Belaustegui Sharp & Low
Eighth District Court Clerk
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