stephanie cardona purchased eighteen acres in henderson nevada for purposes of development of a strip mall strip malls in las vegas like in most areas require an anchor tenant in order to be successful  as to whether it will construct the store at that location smith's begins to re evaluate whether the competitive pressures in that neighborhood allow for the building of another grocery store what happened was a wal mart supercenter had gone in a von gone in and albert's of god in all direct competition what smith did not do was notified warning or advised this developer that they were having second thoughts instead they went ahead with at the closing in february two thousand and with the closing two documents that led to the grand of the summary judgment were executed are you a agreement and the development agreement and they clearly have the language that we've had to live with  litigation and i mean let me make it clear without any obligation to do so smithson tends to construct a commercial or retail building having approximately sixty six thousand square feet of floor area within the building area on the smith's parcel arguably as a result of these this contractual language the smiths have no obligation they could proceed but they could never breach the contract because they did have an obligation to build even assuming decision of the france this was an out of the nevada supreme court that you can you may not breach the letter of the contract but the implied covenant exists outside the contract and as a result of the implied co party may not may not act arbitrarily or unfairly to the other party to the contract which disadvantage i mean the last clear on this so what is misconduct here following feb two thousand citations to the record were smiths is lighting the fire mrs pushing the construction of the site all and all of the time while they're pushing the construction of the center they know that they are reevaluating whether americans we don't want at least what they say is we don't want to be a stand alone with waiting for these other stories because it will not make it i'm assuming that attractive and the other people to come and the other smaller stories need the anchor tenant but the anchor tenant needs the other smaller stores absolute happening during this period with respect to the other stores what's this how much progress has been made with building them after a time when smith finally says i'm out of here the severance virtually completed by that point in time even have a big hole where the smiths payout is but you have the two wings of the center where the smaller stores are built most of the stores are leased out most are ready to go dismissed payback at the time smith's announced they're not going to construction pattern i saw in the butt that has been corner not corner had been poured and certified and accepted to smiths going to cork their specifications and that was in september two thousand again about two months before smith finally announces that they're not going to but the parties conduct cannot defeat the purpose of that contract and what is the purpose of this contract it's the construction of the site or in the construction of the smiths store their conduct in pushing the construction of the site or pushing the completion of the pad pushing the certification of the pad made it highly difficult if not impossible for my clients to repurchase wellesley theory your client signed a contract that was written apparently by the other people and their their their lawyers would like to build a store on this property but we are under no obligation to drive it's hard to breach that type of contract i couldn't agree more that's why the thrust the heart and soul of this litigation from this appellate standpoint the apply covenant because even with a contract that literally can't be breached there's still an obligation to perform in a fashion to not harm the interest of the other side what should snus have done here they could have at least warned this developer as of november that we may be reevaluating you may want to slow down you may not want to get that construction loan was going to drive into bankruptcy when you can't fulfill its terms you may not want to finish the center you may want to leave that dirt bare until we decide what we're going to do and that's where the damage occurred and that's outside the contractual provisions and that's why again with all deferen judgment given those are factual issues that should have gone to the jury was the reliance of my client reasonable on the actions of smith's in the context of this contract and the context of the facts of this case smith's conduct reasonable under the facts of this case was it reasonable for smith to wait a year to tell us what they were doing and in fact what led to them telling us what they were doing it was a letter sent by the developer saying you've got the pad when you going vertical and you saw the response from smith's it was basically in your notes smith has absolutely no obligation to construct the story whether we do or don't isn't probably within our discretion to me we shall be that delay or even cancel plans this is in late october two thousand almost one year after they knew they were reevaluating how difficult would it have been first mr pick up the phone in november and say you may want to slow down irrespective of the fact we can't breach the contract you may want to slow down to protect your interests and that's the issue a fact that should have gone to what's the purpose of this contract it's the bill the smiths store you review the procedural betting on this case i'm sure it's on the record but i do not know what it was in this case originally filed in federal district court or not was filed this  specific again focusing on him and realizing that on the owner standard we're on the losing end of the contract where one party everything and you nothing i agree with that if and when it's not what happened well i'll go along with that also but with nothing like we have here don't they all with a one percent obligation to at least give us the courtesy of notice  unusual factors go to the jury i mean realizing it in the scale of things it's like this on the contractual rights and duties don't they have one duty to at least give us the common courtesy shopping center is now right they sold it that's all that what's what's happened at the shopping center there is there's two wings and a big gap it is still not built there are still no anchor tenant which in nevada is basically suicide because you end up giving away your other retail space for an hour the other retail stores operating on you know do we have big gaps in those two there are some gaps and where they are operational i mean can i then a fire at this time each store that is there and how they're doing since my client by counsel for stephanie and that's part of our record as we described how that came to be and why do i think that's significant because at the end of the day i think it shows what the real overall purpose of this contract was not only from our standpoint but in in real terms quite simply this contract gave stephanie cardona the opportunity to to work with an anchor tenant with the hope that we all had of developing a bigger development but there was a recognition in light of the language in the two paragraphs that we've cited that's paragraph six i believe of the ultimate agreement paragraph fifteen of the  calling the r t a that there was not any obligation on the part of my client to proceed with opening the store now what's the why would stephanie enter into such an agreement because there are several reasons didn't come up in the factual rendition one along the way we are i think me back up i think there's a concept that from the beginning there's evidence that we had no intention of performing of opening the grocery store and that's not the case the facts that we've presented show of mutual intention in fact to proceed to to open the store at the same time my client has negotiated the right to  evaluate whether in fact to proceed to open the grocery store so these are not mutually exclusive things that are going on there is a development that's joint and as part of that my client is paying and again in our factual rendition we're paying our courageous share of the costs of development so along the way there's a benefit to stephanie in terms of doing business with us and then there's certainly a benefit if we choose not to are two references my recollection one was to a figure of about four million dollars but in fairness i think that figure also took into account the purchase price rumor we actually purchased the property the others figure that comes up is a figure of about one point three million dollars that's the pro rata share of the cost of development that we are contractually obligated to pay along the way that's my understanding of that and when is the last check that one million i don't know about the facts and i just sort of making a long winded point of saying that this this may appear to be an onerous contract and i'll give stephanie and the court that at first blush but there was more going on and at the end of the day there's not just a contract but as you can see from our record there's a series of exchanges that clarify that this was everyone went into this with their eyes open that the repurchase obligate not obligation but repurchase provision i think couldn't be more clear that if we chose not to open the grocery store eighteen months from the date of february two thousand there would be a right on stephanie's part to repurchase there was actual discussion about that leading up to the date at which the miss my client informed stephanie that they had no intent to open within a certain period of time that they're putting on hold now why is that all relevant we're focusing and i am really in response here focusing i think on the covenant of good faith and fair dealing claimed there are other claims but as the the court noted in conversation with counsel fundamentally to the extent there is an implied duty of good faith and fair dealing it cannot contradict the terms of the express contract and i think the term that counsel is suggesting should be implied is some kind of term that requires disclosure of what we're doing every step of the way that's inconsistent with the overall two contracts the the the dates by which we have to open and the most importantly the fact that we don't country for saying that i think there's there's there is nothing in the contract that for a bit of us there's nothing in the contract one way or the other on the issue what there is what there is in the contract is i think in mutual acknowledgement that there is not an obligation to open this grocery store and this is i guess my point at some point in time if we haven't opened then they can repurchase now implicit in that dynamic i think is an absence of any obligation to on a daily basis tell you what we're thinking you know they don't ask for daily basis they say once their health once would have helped them and i think the chronology is important here and there some i think confusion in the record that i do want to address real quick involving exactly when my client made decisions and so forth because ultimately the record will show that there was an ongoing analysis totally appropriate not inconsistent with the contract or the way this business works on that some point several weeks before we notified stephanie a decision was made and within a very short period of time that was communicated to stephanie the confusion is addressed just for the record in our reply to the motion for summary judgment specifically there was an indication that it decision had been made as early as july of two thousand th was not communicated until november of two thousand and a close review of the record as we more securely present in the reply in support of the motion for summary judgment shows that that decision was made in august of two  back that time there the anticipated opening been between sometime between november and december of two thousand and it was pushed back to on in just back up a little bit more to flush out where i think there could be confusion in council correct me if i'm wrong but there's a reference to a vice president my client smelts reviewing the analysis that occurred in july telephone conversations and so forth in the depositions did anybody mention in the uproar about this competition in the houses going on other doors coming in my  recollection is that the topic of the significant competition in this market came up amongst the executive group of my clients in that period again beginning in july w done through through november and when did they decide to push back the opening date i believe the date was i believe the date was october nineteenth that the executive team made a decision so there was an ongoing dialogue for sure i'm not pretending like you just cropped up on that date but the decision was made in very shortly thereafter and prior to any expiration of the eighteen month period we did let these folks know we had no reason not to and that's that's again one of the things that may distinguish this case from a different type of case there is there's no indication that we somehow were leading on stephanie for some benefit to ourselves in fact what we're doing was in complete compliance with the contractual dynamic which is jointly developing supporting intending to open while evaluating as was our right which leads me if i may unless the court has a question on that topic well what i'm really trying to figure out you maybe it will help me on this i'm trying to figure out because i don't know smith's i don't know the community and so on how big an outfit is that's where are the other stores how large of the other stores how large was this store going to be by comparison to albert sons and the direct competitors and so on trying to figure out their messed up you know their strip mall sort of grocery store on the aisle but you know they're in the same family as the albertsons of the worlds the king soopers of the world so there are significant grosser nationwide and that's that's what was contemplated that it would be a significant anchor tenant for this dishonest square footage of that store would be roughly the same square footage shows the albertson's store there's no one up there is a competitor roughly  ok i want to take a little bit of time shifting to the the negligent misrepresentation case because that involves economic loss doctrine issue which is i think a little bit different than what we've been talking about here  and the bottom line is the claim i think in evaluating the negligent misrepresentation claim it's important to look at the allegations of course that were pled in the amended complaint and then the law and there's not  that the the bottom line here is that the allegations of the negligent misrepresentation claim are broad and you start with an allegation that i think it's a broader frog broad let me be clear on that one broad and and focused on negligence as the cause of action title would indicate they start with an allegation essentially that smith's entered into these contracts including the provisions that they did not obligate them to open calling them boilerplate and having no intention of performing and then they go through a laundry list of allegations that suggest that along the way we were misleading ltimately the and i think in analyzing the impact of the economic loss doctrine you do have to look at the allegations of the complaint of the cause of action to determine whether it's intertwined whether the allegations are intertwined with an express contract or whether they're independent in the callaway case that we've cited in the anything case that we've cited i have i think you a pretty good exposition of how the law works in this context who may be aware  income follows you today yes ok and i'll wait around for that one at the end of the day the simple analysis is those claims that are duty based as opposed to promise based sounding toward those claims that ask for economic damages are contract based in the economic loss doctrine takes out negligence claims that are really directed at performance of contractual terms i think if you look at the allegations of because of the unusual i think formatting of the of the papers but but we do i don't have anything to add it's not the briefs i'm glad to repeat the analysis is itself no i i think i got it from  light we go back to november nineteenth when smith began the evaluation process like any corporate entity it takes them a while to determine whether they're going to build or not whether they're going to change their mind if i give them that  is once they made the ultimate decision by july there's an eight month period of time that they're we evaluating at a minimum the implied cover that should have at least given us the courtesy of one notification one call the smiths was at least in gauging in there we have valuation process we're not privy to their processes we're not privy to their meetings were not invited in all were privy to as a timetable and standards that have to be met and i'm suggesting to this court if we would've been given that call then given that warning we wouldn't be here today in the posture that we are there was a reference to what is going on with the other senators and the  decisional process was the fact that albert's i'm speaking to the punch and build a grocery store across the street in the strip mall located across the street i realize one of the justices or one of the judges suggested you weren't aware of the market or the situation of las vegas as you know las vegas is a rapidly growing community henderson is now the second largest city in the state of nevada where this center is located it is a suburb of los vegas and that they say there are a large number of strip malls and a large number of a her tennis and grocery stores all through these areas is probably a broad understatement so there's nothing really to warn my clients at this point in time that there would be a real valuation process ongoing b t did the simple fact that the other grocery stores are being constructed the only way we would have known was for smith to give us the courtesy of the notification with that i have only have about a minute have left i've really summed up my remarks