Bour Enters., Llc v. 4520 Arville C/W 83099

IN THE SUPREME COURT OF THE STATE OF NEVADA
BOUR ENTERPRISES, LLC, A No. 82699
NEVADA LIMITED LIABILITY
COMPANY; MULUGETA BOUR, AN
INDIVIDUAL; AND HILENA
MENGESHA, AN INDIVIDUAL,
FIL
Appellants, SEP 1 6 2022
vs.
ELIZABETH A. BROWN
4520 ARVILLE, A CALIFORNIA CLERInrRENIE COURT
GENERAL PARTNERSHIP; AND BY
CLERK
MCKINLEY MANOR, AN IDAHO
GENERAL PARTNERSHIP,
Res ondents.
BOUR ENTERPRISES, LLC, A No. 83099
NEVADA LIMITED LIABILITY
COMPANY; MULUGETA BOUR, AN
INDIVIDUAL; AND HILENA
MENGESHA, AN INDIVIDUAL,
Appellants,
vs.
4520 ARVILLE, A CALIFORNIA
GENERAL PARTNERSHIP; AND
MCKINLEY MANOR, AN IDAHO
GENERAL PARTNERSHIP,
Res • ondents.
ORDER OF AFFIRMANCE
These are consolidated appeals from a district court judgment
and a postjudgment award of attorney fees and costs in a commercial lease
dispute. Eighth Judicial District Court, Clark County; Veronica Barisich,
Judge.'
1Pursuant to NRAP 34(f)(1), we have determined that oral argurnent
is not warranted. While Judge Barisich signed the orders at issue in these
appeals, we note that Senior Justice Michael A. Cherry presided over the
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Appellant Bour Enterprises, LLC (Bour) leased commercial
warehouse space from respondents 4520 Arville and McKinley Manor
(collectively, Landlords) for several years pursuant to two commercial lease
agreements. Landlords brought a breach-of-contract action against Bour
and its guarantors, appellants Mulugeta Bour and Hilena Mengesha, when
Bour vacated the premises and stopped paying rent before the end of the
lease term. In response, appellants raised several affirmative defenses and
filed counterclaims alleging constructive eviction due to Landlords' breach
of the implied warranty of habitability by failing to remedy unsanitary
conditions at the warehouses. The district court granted summary
judgrnent for Landlords, entered judgment awarding Landlords damages
for Bour's unpaid rent and associated fees, and later entered an order
awarding Landlords their reasonable attorney fees and costs.
In Docket No. 82699, appellants challenge the district court's
entry of judgment and the summary judgment underlying it. Appellants
first argue that the district court erred by granting summary judgment
based on its finding that Nevada statutory and common law does not
provide for an implied warranty of habitability in a commercial lease setting
like this one. Reviewing the summary judgment de novo, Wood 1). Safeway,
Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005), we disagree. Although
the Legislature has imposed a warranty of habitability on residential
landlords and those that own, build, or vend new homes, see NRS
118A.290(1) (regarding residential landlords); Radaker u. Scott, 109 Nev.
653, 660-61, 855 P.2d 1037, 1041-42 (1993) (adopting the implied warranty
of habitability to protect purchasers of new homes "who are victims of latent
hearing on the motion for summary judgment and orally ruled on that
motion from the bench.
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defects in construction"), it has not included a similar warranty among the
duties owed by commercial landlords, see NRS 118C.200 (listing a
commercial landlord's basic obligations). By imposing the duty on
residential landlords but omitting it from the list of duties owed by a
commercial landlord, "we can imply that the Legislature's exclusion . . . was
intentional." In re Estate of Prestie, 122 Nev. 807, 814, 138 P.3d 520, 524
(2006) (recognizing "the fundamental rule of statutory construction that
lt]he mention of one thing implies the exclusion of another" (quoting State
v. Wyatt, 84 Nev. 731, 734, 448 P.2d 827, 829 (1968))). This is consistent
with the majority of other jurisdictions which decline to impose the
warranty in commercial settings. See, e.g., B.W.S. Invs. v. Mid-Arn Rests.,
Inc., 459 N.W.2d 759, 763 (N.D. 1990) (citing authorities and explaining
that the majority of jurisdictions "do[ ] not extend an implied warranty of
habitability or fitness to commercial leases"); 49 Am. Jur. 2d Landlord and
Tenant § 443 (2022) ("A majority of jurisdictions adhere to the rule that
there is no implied warranty of fitness or suitability in leases of real
property for commercial purposes.").
And even if this court were to adopt the minority view as
appellants suggest, see Gyrn-N-I Playgrounds, Inc. v. Snider, 220 S.W.3d
905, 913 (Tex. 2007) (observing that some jurisdictions have applied the
warranty in commercial settings), the terms of the parties' lease agreements
make the conditions appellants complained of here appellants'
responsibility. See Fed. Nat'l Mortg. Ass'n v. Westland Liberty Vill., LLC,
138 Nev., Adv. Op. 57, 515 P.3d (2022) (explaining that this court
"interpret[s] unambiguous contracts according to the plain language of their
written terms"). For example, the parties' leases required appellants to
"keep the premises . . . in good order, condition and repair [regardless of]
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whether or not the need for such repairs occurs as the result of [Bour's] use,
[or] any prior use" of the premises and, by signing the leases, appellants
affirmed that they "ha[d] made such investigation as it deems
necessary ... and assume [d] all responsibility" for the condition of the
premises. Therefore, we conclude that the district court did not err by
granting summary judgment for Landlords.2 See Pack v. LaTourette, 128
Nev. 264, 267, 277 P.3d 1246, 1248 (2012) (recognizing that this court will
affirm the district court's judgment if the district court reached the right
result, albeit for different reasons).
Appellants also contend that the district court erred entering
judgment for Landlords because it did not adjudicate appellants' affirmative
defenses, including the allegation that Landlords failed to mitigate their
damages. But in response to Landlords' summary judgment motion and the
evidence accompanying it, appellants neither disputed the evidence, which
was authenticated by sworn affidavits, nor questioned the amount of
Landlords' damages as set forth in its statement of undisputed facts and
supporting exhibits. See Wood, 121 Nev. at 731, 121 P.3d at 1030-31(explaining that a party opposing summary judgment must "set forth
specific facts demonstrating the existence of a genuine factual issue"
supporting the claims); Conner v. S. Nev. Paving, Inc., 103 Nev. 353, 355-
56, 741 P.2d 800, 801 (1987) ("[T]he burden of proving failure to mitigate
2 Given our rejection of appellants' claim that the implied warranty of
habitability applies to their commercial lease agreements, we need not
consider Bour's arguments as to whether the warranty may be waived by
the leases' "as-is" clause. And, because appellants' constructive eviction
counterclaim was based on its assertion that Landlords breached the
implied warranty of habitability, we necessarily reject appellants' argument
that it presented material questions of fact to defeat summary judgment on
that claim.
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damages is on the breaching party."). Instead, appellants' opposition
focused on their contention that Bour's breach of the leases was excused
because it was constructively evicted due to the unsanitary conditions of the
warehouses. Because appellants failed to raise their affirmative defense of
mitigation of damages at the summary judgment phase or to contest the
amount of damages claimed, the district court correctly found that
appellants waived the argument. Cf. Schuck v. Signature Flight Support of
Nev., Inc., 126 Nev. 434, 437, 245 P.3d 542, 544 (2010) (declining to consider
an appellate argument not raised in opposing summary judgment before the
district court). In light of the foregoing, we affirm the district court's
judgment in Docket No. 82699. And because appellants' argument for
reversing the attorney fees and costs award in Docket No. 83099 is premised
solely on the propriety of the judgment challenged in Docket No. 82699, we
necessarily affirm that award as well.
It is so ORDERED.3
Parraguirre
r..
Pickering
cc: Hon. Veronica Barisich, District Judge
Black & Wadhams
Holley Driggs/Las Vegas
Eighth District Court Clerk
3The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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