The Foothills Corp. v. Bank of America, N.A. ( 2015 )

 pleadings Similar to considering a motion to dismiss for failure to state a
claim upon which relief can be granted, in considering a motion for
judgment on the pleadings, the district court may consider a document
referenced in the complaint and that is crucial to the complaint when
neither party challenges the document's authenticity. See Breliant v.
Preferred Equities Corp., 109 Nev. 842, 847, 858 P.2d 1258, 1261 (1993)
(providing that "the court may take into account matters of public record,
orders, items present in the record of the case, and any exhibits attached
to the complaint when ruling on" a NRCP 12(b)(5) motion); see also Baxter
v. Dignity Health, 131 Nev., Adv. Op. 76, P.3d (2015) (explaining
that the court can "consider unattached evidence on which the complaint
necessarily relies if: (1) the complaint refers to the document; (2) the
document is central to the plaintiffs claim; and (3) no party questions the
authenticity of the document" (internal quotation omitted)); Sadler v.
PacifiCare of Nev., 130 Nev., Adv. Op. 98, 340 P.3d 1264, 1266 (2014)
(noting that the review for an NRCP 12(b)(5) motion is similar to the
review of an NRCP 12(c) motion).
Next, we conclude that the district court did not err in
granting respondent's motion. See Sadler, 130 Nev., Adv. Op. 98, 340 P.3d
at 1266 (explaining that this court reviews an order granting a motion for
judgment on the pleadings de novo and in doing so accepts the factual
allegations in the complaint as true and draws all inferences in favor of
the nonmoving party). It is uncontested that respondent did not obtain
either lot in a foreclosure sale. Because respondent never obtained the
lots, it did not breach the agreement by failing to provide appellants with
the right of first refusal.
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Lastly, because the agreement did not require respondent to
obtain the lots, the district court properly concluded that respondent did
not breach the covenant of good faith and fair dealing by not obtaining
them. Appellants argue that this issue could not be resolved on the
pleadings because even though respondent literally complied with the
settlement agreement, respondent deliberately disregarded the intention
of the contract by not attempting to obtain the two lots at a foreclosure
sale. See Hilton Hotels Corp. v. Butch Lewis Prods., Inc., 107 Nev. 226,
232, 808 P.2d 919, 922-23 (1991) (describing the covenant of good faith and
fair dealing). While a party can breach the covenant of good faith and fair
dealing even if the terms of the contract are literally complied with, see id.,
the covenant "cannot be extended to create obligations not contemplated
by the contract." Pasadena Live, LLC v. City of Pasedena, 8 Cal. Rptr. 3d
233, 237 (Ct. App. 2004) (quotation omitted). The settlement agreement
did not expressly require respondent to obtain a lot at a foreclosure sale
and to impose such a requirement on respondent would contradict the
express terms of the contract. Thus, the district court did not err in
concluding that respondent did not breach the covenant of good faith and
fair dealing. Accordingly, we
ORDER the judgment of the district court AFFIRMED.
Saitta
Pickering
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cc: Hon. Joanna Kishner, District Judge
Stephen E. Haberfeld, Settlement Judge
Maier Gutierrez Ayon, PLLC
Akerman LLP/Las Vegas
Eighth District Court Clerk
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(0) 1.947A We).