Elements for the Remedy of Specific Performance

In Nevada, the remedy of specific performance is available where:

  1. Valid contract with reasonably definite and certain terms exists;
  2. Remedy at law is inadequate;
  3. Plaintiff performed his obligations under the contract; and
  4. Court is willing to order specific performance by the non-performing party.

Land America Lawyers Title v. Metro. Land Dev., 2006 WL 2385385 (D. Nev. 2006); Mayfield v. Koroghli, 124 Nev. 34, 184 P.3d 362, 368 (2008); Goldston v. AMA Inv., 98 Nev. 567 (1992); Serpa v. Darling, 107 Nev. 299, 810 P.2d 778 (1991); Stolz v. Grimm, 100 Nev. 529, 689 P.2d 927 (1984); Carcione v. Clark, 96 Nev. 808 (1980); R&S Inv. v. Howard, 95 Nev. 279 (1979); Roth v. Scott, 12 Nev. 1078 (1966); Schwerin v. Slye, 173, Cal. 170 (1916); 17 Am. Jur.2d Contracts, §§ 10, 361, 445 (1964); Restatement (Second) of the Law of Contracts, §§ 1, 9, 17, 71, 224, 235, 346 (1981).


See elements for other claims at the Nevada Law Library

The Elements for a Claim of Breach of Contract


In Nevada, the elements for a claim of breach of contract are:

  1. Valid contract (offer, acceptance, consideration) exists between plaintiff and defendant;
  2. Defendant breached the contract or failed to render performance when it became due;
  3. Defendant’s breach or failure of performance was unexcused;
  4. All conditions precedent to defendant’s duty to perform were fulfilled by plaintiff or were excused;
  5. Plaintiff was damaged by the breach;
  6. Causation and damages were a forseeable consequence of a particular breach (causation is an essential element of liability).

Continue reading The Elements for a Claim of Breach of Contract

Contractual Ambiguity or Contra Proferentem, The Ambiguity Doctrine

In Nevada, contractual ambiguity, also known as contra proferentem or the “ambiguity doctrine,” will determine how a court decides a contract dispute.  The doctrine does not apply absent a material ambiguity in the agreement at issue, and where the intent of the parties is impossible to ascertain by resort to the four corners of the document, plus all available extrinsic evidence, including the subsequent conduct of the parties.  Moreover, the doctrine is one of last resort;  it does not apply in cases involving sophisticated parties. Continue reading Contractual Ambiguity or Contra Proferentem, The Ambiguity Doctrine

Elements for a Claim of Intentional Interference with Contractual Relations

In Nevada, the elements for a claim of intentional interference with contractual relations are:

  1. A valid and existing contract between plaintiff and a third party;
  2. Defendant had knowledge of the valid contract or had reason to know of its existence;
  3. Defendant committed intentional acts intended or designed to disrupt the contractual relationship or to cause the contracting party to breach the contract;
  4. Actual disruption of the contract (the contracting party breached the contract);
  5. The breach was caused by the wrongful and unjustified conduct;
  6. Causation and damage.

Klein v. Freedom Strategic Partners, LLC, 595 F. Supp. 2d 1152 (D. Nev. 2009); Blanck v. Hager, 360 F. Supp.2d 1137 (D. Nev. 2005); Nat. Right to Life P.A. Com. v. Friends of Bryan, 741 F.Supp. 807, 813 (D. Nev. 1990); J.J. Industries, LLC v. B. Bennett, 19 Nev. 269, 71 P.3d 1264, 1268 (2003); Wichinsky v. Mosa, 109 Nev. 84, 88, 847 P.2d 727 (1993); Sutherland v. Gross, 105 Nev. 192, 772 P.2d 1287, 1288 (Nev. 1989); M & R Inv. Co. v. Goldsberry, 707 P.2d 1143 (Nev. 1985).  The court must ask whether the defendant pursued an improper objective of harming the plaintiff or used wrongful means that in fact caused an injury to the contractual relationship.  Nat’l Right to Life P.A. Com. v. Friends of Bryan, 741 F.2d 807 (D. Nev. 1998).


See elements for other claims at the Nevada Law Library

Beware of Dabbling Franchise Attorneys! Part 1: Franchisee Counsel

If you are a businessperson, sooner or later you will have to deal with a lawyer. In the franchise world, it helps – tremendously – to deal with attorneys who understand franchising and franchise law. It doesn’t matter whether you are a franchisor or a franchisee; no matter which side of the transaction you happen to be on, you will want an experienced franchise attorney to be on the other side.

Surprisingly, the level of franchise law knowledge among attorneys who actually get involved in franchise transactions varies considerably. The majority of the time, lawyers who are knowledgeable in franchise law are on both sides of the transaction. But that is not always the case. Sometimes, the attorney on the other side is inexperienced, and “dabbling,” in franchise law.

This is the first of a two-part piece on why these dabbling attorneys can hinder a transaction, or worse, do harm to their clients.

This part one looks at it from the point of view of the franchisor, which is negotiating with a prospective franchise purchaser. Let’s assume this prospective franchisee is the party represented by a lawyer without franchise law experience. This situation is much more common than the reverse – where it is the franchisor, and not the franchisee, that has inexperienced counsel.

Why Franchise Agreements are Different from other Business Contracts

Some, but not all, franchise agreements are negotiable. The most significant problem involving  inexperienced counsel occurs when the franchisor is otherwise willing to negotiate with the prospective franchisee.

If a prospective franchisee seeks legal counsel, s/he will typically seek out that person’s usual business attorney, if there is one. If the prospective franchisee doesn’t have or know an attorney, that person will ask friends and family for referrals. Frequently, the referral is to a business attorney who has little or no experience in franchise law.

The business attorney may be tempted to do the work, instead of referring it to another lawyer. After all, the terms in franchise agreements look a lot like the ones you might find in other types of business contracts. But the problem is that the franchise relationship isn’t a typical business relationship. It is critical for the attorneys on either side of a negotiation to understand what makes franchising different.

Specifically, franchise agreements are (on the whole) much more one-sided than other business contracts. This is for a good reason: the provisions are there (in one way or another) to protect the health and integrity of the system as a whole, including its intellectual property and goodwill. Protecting the system is paramount, because if the system fails, all of its franchisees lose.

An attorney representing either side of the franchise transaction needs to understand this basic truth at the core of franchising. When s/he has experience in franchise law, counsel will understand which provisions are typical or atypical. They will also understand which terms may be negotiable and whether, taken as a whole, the franchise contract is more or less one-sided than is typical for those agreements. Having this experience will make the negotiation more productive and efficient. A more efficient negotiation will typically result in lower attorney fees.

Continue reading Beware of Dabbling Franchise Attorneys! Part 1: Franchisee Counsel

What Should You do if You Have Been Sued?

What Should You do if You Have Been Sued?
What Should You do if You Have Been Sued?


These are words none of us ever wants to see.  However, lawsuits are almost an inevitable cost of conducting business in today’s environment.  A recent statistic suggests that over 120,000 Nevada businesses were sued last year alone in Nevada Courts.  An old, but unfortunately true adage to keep in mind: “there are only two types of businesses … those that have been sued already and those that will be sued.”  While I am not sure the future is quite that bleak, all professionals should know what their options and responsibilities are once they have been served with a copy of a complaint.  More importantly, you should know what you can do to help avoid suits. Continue reading What Should You do if You Have Been Sued?

The Elements for a Claim of Battery

In Nevada, the elements for a claim of civil battery are:

  1. Willful and unlawful use of force or violence upon the person of another (causing a harmful or offensive contact with another person);
  2. Defendant intended to cause harmful or offensive contact;
  3. Such contact did occur; and
  4. Causation and damages.

Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865 (1989); Yada v. Simpson, 112 Nev. 254, 913 P.2d 1261; Switzer v. Rivera, 174 F. Supp.2d 1097, 1109 (D. Nev. 2001); Burns v. Mayer, 175 F. Supp. 2d 1259 (D. Nev. 2001) Murphy v. S. Pac. Co., 31 Nev. 120, 101 P. 322, 334 (1909); Restatement (Second) of Torts, §§ 13 and 18 (1965).


See elements for other claims at the Nevada Law Library

Six Tips to Avoid Identity Theft

Six Tips to Avoid Identity Theft
Six Tips to Avoid Identity Theft

For the first time in years, my wife did not participate in the after Thanksgiving “Black Friday” sales.  Instead, she went on a family paintball outing.  That didn’t stop her from spending several thousand dollars that day, or from opening accounts at Kohls, Target, JC Penny’s, or from applying for a new credit card.  Well, at least it didn’t stop someone using her name from doing those things.

We quickly learned the havoc that can be wreaked from identity theft when someone using evidently well-crafted fake identification containing my wife’s actual name, date of birth, social security number, and home address charged thousands of dollars at various department stores on Black Friday.  It is a problem we are still dealing with, and which we found out probably has its origin in some stolen medical records. Continue reading Six Tips to Avoid Identity Theft