                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                ELDAN LLC,                                           No. 66922
                Appellant/Cross-Respondent,
                vs.
                JOHN GORDANA, AN INDIVIDUAL,                                 FILED
                Respondent/Cross-Appellant.
                                                                             JUN 2 3 2016
                                                                           TRACIE K. LINDEMAN
                                                                        CLERK OF SUPREME COURT
                                                                        BY    •
                                                                             DEPUTY CLER


                                       ORDER OF AFFIRMANCE
                           This is an appeal and cross-appeal from a district court final
                judgment in a contract action. Eighth Judicial District Court, Clark
                County; Nancy L. Allf, Judge.
                           Respondent/cross-appellant John Gordana partnered with a
                non-party to this case to open and operate a restaurant in a commercial
                space leased from appellant/cross-respondent Eldan LLC. The
                restaurant's lease was for five years, and the monthly rent was $4,000
                with monthly common area maintenance fees (CAMs) of $1,400. The lease
                contained the following provision: "This lease agreement is contingent
                upon tenant qualifying for a Liquor License Only." Gordana signed a
                personal guarantee guaranteeing the payment of rent for the leased space.
                Shortly after entering the lease, the restaurant stopped making monthly
                payments, and Eldan evicted the restaurant and brought this suit. The
                district court denied Gordana's pretrial motion to dismiss, and after a
                bench trial, ruled in favor of Eldan on its breach of contract claim, but




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                        awarded damages only up to the time that the restaurant's temporary
                        liquor license expired. This appeal and cross-appeal followed.'
                                    Gordana first asserts that the district court erred when it did
                        not find that Eldan's action was barred by issue preclusion. 2 Gordana
                        failed, however, to identify any particular issue that had been actually and
                        necessarily litigated in a separate action, and has not done so on appeal.
                        Five Star Capital Corp. v. Ruby, 124 Nev. 1048, 1055, 194 P.3d 709, 713
                        (2008) (identifying the elements of issue preclusion and explaining that
                        issue preclusion does not apply when an identical issue has not previously
                        been "actually and necessarily litigated" such that there was a final ruling
                        on the merits on the issue in the first case). Because the elements of issue
                        preclusion were not met, the district court did not err when it concluded
                        that issue preclusion did not apply. 3 Id.

                               'Contrary to Eldan's argument, Gordana did not waive his right to
                        appeal from the district court's interlocutory order denying his motion to
                        dismiss. Consol. Generator-Nev., Inc. v. Cummins Engine Co., 114 Nev.
                        1304, 1312, 971 P.2d 1251, 1256 (1998) (providing that while an
                        interlocutory order is not independently appealable, it may be considered
                        in the context of an appeal from a final judgment).

                              2 Gordana uses the term "collateral estoppel," however, this court
                        previously clarified that it would use the terms "issue preclusion" instead
                        of "collateral estoppel," and "claim preclusion" instead of "res judicata" to
                        refer to the two distinct doctrines of estoppel. Five Star Capital Corp. v.
                        Ruby, 124 Nev. 1048, 1051, 1054, 194 P.3d 709, 711, 712-13 (2008).

                              3 Moreover,  it appears from the parties' arguments on appeal that
                        the separate action was resolved by default judgment without fully
                        litigating the merits• of any specific issue that would be relevant to the
                        instant case. In re Sandoval, 126 Nev. 136, 141, 232 P.3d 422, 425 (2010)
                        (holding that a default judgment does not generate issue preclusion
                        because no issue is actually and necessarily litigated).


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                               Gordana next argues that the case should have been dismissed
                   under NRCP 19 for failure to join a necessary party. 4 Gordana, however,
                   has never addressed in the district court or on appeal why the non-party
                   should be joined if feasible under NRCP 19(a)—an essential showing for a
                   motion to dismiss under NRCP 19. We therefore conclude that the district
                   court did not err when it denied Gordana's NRCP 19 motion to dismiss.
                               Gordana also argues that the district court abused its
                   discretion when it allowed Eldan to file an untimely reply pleading to
                   Gordana's answer and counterclaims. We conclude that the district court
                   did not abuse its discretion when it allowed Eldan to file a reply.      See
                   NRCP 6(b) (providing that a district court has discretion when considering
                   an untimely filing). Moreover, Gordana has not demonstrated that he was
                   prejudiced by the untimely reply, and indeed the district court extended to
                   him an extra day to present evidence to address the reply filing.
                               Gordana additionally argues that Eldan unreasonably
                   withheld consent to assign the lease. The district court, however, heard
                   testimony on this issue and determined that Gordana's witness was not
                   credible. This court will not reweigh credibility of witnesses on appeal,
                   and we conclude the district court did not abuse its discretion as to this
                   matter. Castle v. Simmons, 120 Nev. 98, 103, 86 P.3d 1042, 1046 (2004)
                   (providing that this court "will not reweigh the credibility of witnesses on
                   appeal").


                         4 Gordana preserved his right to raise this argument in the district
                   court by pleading it in his answer. NRCP 12(b)(6), (h)(2) (providing that
                   an objection for failure to join a necessary party may be made by
                   pleading).



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                             Finally, both parties attack on appeal the district court's
                award of damages and its interpretation of the liquor license provision in
                the lease. "When the facts in a case are not in dispute, contract
                interpretation is a question of law, which this court reviews de novo."
                Lehrer McGovern Bovis, Inc. v. Bullock Insulation, Inc.,      124 Nev. 1102,
                1115, 197 P.3d 1032, 1041 (2008). However, courts shall effectuate the
                parties' intentions, and determining the parties' intentions is a question of
                fact, which this court reviews for substantial evidence.       Whitemaine v.
                Aniskovich, 124 Nev. 302, 308, 183 P.3d 137, 141 (2008); Anvui, LLC v.
                G.L. Dragon, LLC, 123 Nev. 212, 215-16, 163 P.3d 405, 407 (2007). A
                contract term is ambiguous when it is subject to more than one reasonable
                interpretation, and ambiguities will be construed against the drafter.
                Anvui, 123 Nev. at 215-16, 163 P.3d at 407.
                             Here, the lease's liquor license requirement is ambiguous as it
                does not address the consequences of the restaurant failing to obtain a
                license and it does not specify which category of license is required. The
                district court heard testimony about the parties' intent regarding the
                liquor license contingency and why it was added to the lease, and found
                that the lease excused payment after the temporary liquor license expired.
                This finding is supported by the record. Whitemaine, 124 Nev. at 308, 183
                P.3d at 141. Thus, when the temporary liquor license expired, the
                restaurant no longer qualified for a liquor license and under the terms of
                the lease, the lease was no longer in effect. 5 Anvui, 123 Nev. at 215, 163



                      5 We reject Eldan's argument that because Gordana did not make a
                reasonable good faith effort to obtain a liquor license, he cannot rely on the
                absence of a license to avoid his lease obligation. The evidence that the
                                                                    continued on next page. . .

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                   P.3d at 407. And because the district court weighed the conflicting
                   evidence regarding damages, we affirm the district court's damages
                   award. Mort Wallin of Lake Tahoe, Inc. v. Commercial Cabinet Co., 105
                   Nev. 855, 856-57, 784 P.2d 954, 955 (1989) (providing that this court will
                   uphold an award of damages when it is supported by the record).
                                Accordingly, we
                                ORDER the judgment of the district court AFFIRMED.



                                                                       , J.
                                           Douglas


                                              J.
                   Cherry                                    Gibbons



                   cc: Hon. Nancy L. Allf, District Judge
                        Lansford W. Levitt, Settlement Judge
                        Chattah Law Group
                        Accelerated Law Group
                        Eighth District Court Clerk




                   . • . continued
                   restaurant's location was wholly ineligible for a permanent license was
                   never rebutted at trial and thus it was not Gordana's action that caused
                   the lease condition to remain unfulfilled. 13 Williston on Contracts § 39:8
                   (4th ed.) ("[T]he prevention doctrine assumes a 'but for' test: that but for
                   one party's conduct, . . . the condition. . . would have occurred.");
                   Restatement (Second) of Contracts § 245.


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