Bird v. Casa Royale West, 624 P.2d 17 (Nev. 1981). · Go Syfert
Bird v. Casa Royale West, 624 P.2d 17 (Nev. 1981). Cases Citing This Book View Copy Cite
80 citation events (8 in the last 25 years) across 1 distinct court.
Strongest positive: Lipps v. Southern Nevada Paving (nev, 2000-05-04)
Treatment trajectory · 1982 → 2026 · click a year to view as-of
1982 2004 2026
Top citers, strongest first. 28 distinct citers. How cited ↗
discussed Cited as authority (rule) Lipps v. Southern Nevada Paving
Nev. · 2000 · confidence medium
On appeal, this court is “to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment.” Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
discussed Cited as authority (rule) Barmettler v. Reno Air, Inc. (2×)
Nev. · 1998 · confidence medium
On appeal, this court is “required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment.” Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
discussed Cited as authority (rule) Madera v. State Industrial Insurance System (2×)
Nev. · 1998 · confidence medium
Bird v. Casa Royale West, 97 Nev. 67, 69-70 , 624 P.2d 17, 18 (1981).
cited Cited as authority (rule) Tucker v. Action Equipment & Scaffold Co.
Nev. · 1997 · confidence medium
Bird v. Casa Royale West, 97 Nev. 67, 69-70 , 624 P.2d 17, 18 (1981).
discussed Cited as authority (rule) Leasepartners Corp. v. Robert L. Brooks Trust
Nev. · 1997 · confidence medium
On appeal, this court is “required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment.” Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
discussed Cited as authority (rule) Medallion Development, Inc. v. Converse Consultants
Nev. · 1997 · confidence medium
We are “required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment.” Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
discussed Cited as authority (rule) Rockwell v. Sun Harbor Budget Suites (2×)
Nev. · 1996 · confidence medium
On appeal, this court is "required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment." Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
discussed Cited as authority (rule) Day v. Zubel (2×)
Nev. · 1996 · confidence medium
On appeal, this court is “required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment.” Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
discussed Cited as authority (rule) Scialabba v. Brandise Construction Co. (2×)
Nev. · 1996 · confidence medium
On appeal, this court is “required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment.” Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
discussed Cited as authority (rule) Wayment v. Holmes (2×)
Nev. · 1996 · confidence medium
On appeal, this court is "required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment." Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
discussed Cited as authority (rule) Allyn v. McDonald
Nev. · 1996 · confidence medium
On appeal, this court is “required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment.” Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
cited Cited as authority (rule) Wiley v. Redd
Nev. · 1994 · confidence medium
Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
discussed Cited as authority (rule) Coker Equipment, Inc. v. Great Western Capital Corp.
Nev. · 1994 · confidence medium
This court is “required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment.” Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
discussed Cited as authority (rule) Doud v. Las Vegas Hilton Corp.
Nev. · 1993 · confidence medium
On appeal, this court is “required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment.” Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
discussed Cited as authority (rule) Maine v. Stewart
Nev. · 1993 · confidence medium
If the moving party satisfies its burden and the motion for summary judgment is supported as required by NRCP 56, “the adverse party may not rest upon the ‘mere allegations of his pleading, but must, by affidavit or otherwise, set forth facts demonstrating the existence of a genuine issue for trial.’ ” Bird v. Casa Royale West, 97 Nev. 67, 70 , 624 P.2d 17, 19 (1981) (quoting Garvey v. Clark County, 91 Nev. 127, 130 , 532 P.2d 269, 271 (1978)).
discussed Cited as authority (rule) NORWEST FINANCIAL v. Lawver
Nev. · 1993 · confidence medium
On appeal, this court is “required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment.” Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
discussed Cited as authority (rule) Frances v. Plaza Pacific Equities, Inc.
Nev. · 1993 · confidence medium
On appeal, this court is “required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment.” Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
discussed Cited as authority (rule) Evans v. Southwest Gas Corp.
Nev. · 1992 · confidence medium
On appeal from an order granting summary relief, “we are required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its *1005 granting of summary judgment.” Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
cited Cited as authority (rule) Hook v. Giuricich
Nev. · 1992 · confidence medium
Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
cited Cited as authority (rule) Michaels v. Sudeck
Nev. · 1991 · confidence medium
Bird v. Casa Royale West, 97 Nev. 67, 71 , 624 P.2d 17, 19 (1981); Bond v. Stardust, Inc., 82 Nev. 47, 50 , 410 P.2d 472, 473 (1966).
discussed Cited as authority (rule) Judson v. Camelot Food, Inc. (2×)
Nev. · 1988 · confidence medium
Bird v. Casa Royal West, 97 Nev. 67, 69-70 , 624 P.2d 17, 18 (1981).
discussed Cited as authority (rule) Allen v. State
Nev. · 1984 · confidence medium
Because early retirees, in order to oppose summary judgment, “may not rest upon the mere allegations of [their] pleadings, but must, by affidavit or otherwise, set forth facts demonstrating the existence of a genuine issue for trial,” Bird v. Casa Royale West, 97 Nev. 67, 70 , 624 P.2 17, 19 (1981), we find that they have not shown that a genuine issue of fact remains in dispute.
examined Cited "see" Hewitt v. Allen (4×) also: Cited "see, e.g."
Nev. · 2002 · signal: see · confidence high
See Bird v. Casa Royale West, 97 Nev. 67, 68 , 624 P.2d 17, 18 (1981).
discussed Cited "see" Riley v. OPP IX L.P. (2×)
Nev. · 1996 · signal: see · confidence high
See Bird v. Casa Royale West, 97 Nev. 67, 70 , 624 P.2d 17, 19 (1981).
discussed Cited "see" Billingsley v. Stockmen's Hotel, Inc. (2×)
Nev. · 1995 · signal: see · confidence high
See Bird v. Casa Royale West, 97 Nev. 67, 70 , 624 P.2d 17, 19 (1981); NRCP 56(e).
discussed Cited "see" Barr v. Gaines (2×)
Nev. · 1987 · signal: see · confidence high
See Bird v. Casa Royale West, 97 Nev. 67 , 624 P.2d 17 (1981) (summary judgment is appropriate when moving party is entitled to judgment as a matter of law).
discussed Cited "see" State of Nevada Department of Commerce v. Soeller (2×)
Nev. · 1982 · signal: see · confidence high
See Bird v. Casa Royale West, 97 Nev. 67 , 624 P.2d 17 (1981).
examined Cited "see, e.g." Pegasus v. Reno Newspapers, Inc. (4×)
Nev. · 2002 · signal: see also · confidence low
NRCP 56(e); see also Bird v. Casa Royale West, 97 Nev. 67, 70 , 624 P.2d 17, 19 (1981).
ALLEN S. BIRD, Appellant,
v.
CASA ROYALE WEST, a Limited Partnership, WILL ROBERTS, OLIND JENNI, General Partners CASA ROYALE EAST, a Limited Partnership, WILL ROBERTS, OLIND JENNI, General Partners VENETIAN APARTMENTS, a Limited Partnership, Formerly Known as CAESAR’S APARTMENTS, a Limited Partnership, WILL ROBERTS, OLIND JENNI, General Partners ROMAL VILLAS, a Limited Partnership, Formerly Known as CLEOPATRA APARTMENTS, a Limited Partnership, WILL ROBERTS, OLIND JENNI, General Partners and WILL ROBERTS CORPORATION, a Nevada Corporation, Respondents
12022.
Nevada Supreme Court.
Feb 25, 1981.
624 P.2d 17
1981 Nev. LEXIS 433
Donald W. Haley, Las Vegas, for Appellant., Harding & Zervas, Las Vegas, for Respondent Will Roberts., John Peter Lee, Las Vegas, for Respondent Olind Jenni.
Manoukian, Gunderson, Batjer, Mowbray, Griffin.
Cited by 40 opinions  |  Published

OPINION

By the Court,

Manoukian, J.:

In this appeal, we are required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment in favor of respondents-defendants. We hold that it did not and affirm.

[*69] Appellant Bird instituted this suit against respondent Casa Royale West, hereinafter referred to as “West,” and others seeking specific performance, or alternatively, damages resulting from the alleged breach of a contract between the parties for the sale of certain real property in Clark County. West filed an answer alleging, inter alia, that Bird had failed to perform under the contract. Thereafter, West filed a motion for summary judgment, which was opposed by appellant. Without oral argument, the trial court entered an order granting the motion.

West’s primary basis for its claim that Bird failed to perform the contract is Bird’s failure to deposit $40,000 into escrow as required by the contract. The contract, in relevant part, provides:

3. An additional sum of dlrs 40,000.00 will be deposited by buyer into escrow upon his approval of premises and records, not later than November 8th, 1976, at 6:00 p.m. The total sum of dlrs 60,000.00 deposited by buyer to be applied dlrs 15,000.00 for each of the 4 escrows.
6. ... buyer will submit proposed contract forms and buyers financial statements to seller not later than November 8, 1976 for sellers review. Transactions are subject to both parties agreeing on and approving the contract forms not later than November 15, 1976.

Pursuant to the contract, Bird submitted his November 8, 1976 check in the sum of $40,000.00 to Title Insurance. On November 14, 1976, Bird and respondent, Olind Jenni, General Partner with West, entered into a written supplemental agreement which provided in part: “the approval of contract of sale by both parties is hereby extended until 6:00 p.m. November 20, 1976.

Thereafter, on November 20, 1976, in a letter from Title Insurance, respondent, Will Roberts, was informed that the check for $40,000.00 had been returned unpaid. At no time during the course of negotiations or during the continuation of the escrow did West or any one in its behalf receive from appellant the financial statements or contract forms required to consummate the transaction. In February 1977, Bird successfully demanded the return of an initial $20,000.00 that had been deposited in escrow.

Pursuant to NRCP 56(c), summary judgment is appropriate where the pleadings, depositions, answers to interrogatories, admissions and affidavits on file, show that there exists no genuine issue as to any material fact, and that the moving party is[*70] entitled to judgment as a matter of law. Dzack v. Marshall, 80 Nev. 345, 393 P.2d 610 (1965). NRCP 56(e) [1] provides in part that when a motion for summary judgment is made and supported as required by NRCP 56, the adverse party may not rest upon the “mere allegations of his pleading, but must, by affidavit or otherwise, set forth facts demonstrating the existence of a genuine issue for trial.” Garvey v. Clark County, 91 Nev. 127, 130, 532 P.2d 269, 271 (1978); Adamson v. Bowker, 85 Nev. 115, 118-20, 450 P.2d 796, 799-800 (1969). Appellant’s affidavit stated, inter alia that

3. At all times affiant was and is ready, willing and able to close the transaction which is the subject of this suit.
4. The $40,000.00 check for part of the down payment was never honored because affiant was advised by Defendant’s accountant that Defendant did not intend to honor the contract between the parties and close the sale as required thereby. . . .

Citing Kahle v. Kostiner, 85 Nev. 355, 358, 455 P.2d 42, 44 (1969), appellant asserts that allegation 4 above manifests a “definite unequivocal and absolute intent not to perform a substantial portion of the contract” and that this is an anticipatory repudiation of the contract. Therefore, under Kahle, where there is such a repudiation, the purchaser’s failure to tender performance is excused, and the purchaser may assert his claim of entitlement to specific performance in a subsequent legal action.

Even assuming the accountant did have the authority to repudiate, the appellant’s affidavit, in our view, does not meet the personal knowledge and specificity requirements of NRCP[*71] 56. We have held that specific facts, rather than general allegations and conclusions, presenting a genuine issue of material fact must be shown to preclude summary judgment. Adamson v. Bowker, 85 Nev. at 118-20, 450 P.2d at 800-801. Appellant’s bald assertion that the “Defendant did not intend to honor the contract” absent any specific facts, such as the identity of the accountant, information as to whether one or all of the four escrows would not be honored, corroboration from the principal, return of any deeds, documentation, or any other manifestation of a “definite, unequivocal and absolute intent” does not give rise to a material issue of fact concerning an anticipatory repudiation.

Moreover, the fact that Bird had stopped payment on the check prior to the November 20th approval date when viewed with the absence of any forfeiture, the return of the initial deposit and the fact that these parties had continually been modifying the contract, are consistent with a theory of mutual rescission, see Herring-Hall-Marvin Safe Co. v. Balliot, 38 Nev. 164, 145 P. 941 (1918), or failure of the conditions of required approval by either or both parties. See Sala v. Ruthe Realty, Inc. v. Campbell, 89 Nev. 483, 515 P.2d 394 (1973). [2]

We affirm the trial court’s order granting summary judgment in favor of respondent.

Gunderson, C. J., and Batjer and Mowbray, JJ., and Griffin, D. J., [3] concur.
1

NRCP 56(e) provides:

Supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence and shall show affirmatively that the affiant is competent to testify to the matters stated therein. Sworn or certified copies of all papers or parts thereof referred to in an affidavit shall be attached thereto or served therewith. The court may permit affidavits to be supplemented or opposed by depositions, answers to interrogatories, or further affidavits. When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of his pleading, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial. If he does not so respond, summary judgment, if appropriate shall be entered against him.
2

We need not consider respondents’ other contention that the trial court inappropriately considered appellant’s belatedly filed countervailing affidavit. See NRCP 56(e) and EDCR 2.3(b).