IN THE SUPREME COURT OF THE STATE OF NEVADA 

JEFF VANBUSKIRK, AN INDIVIDUAL; 

AND DENISE VANBUSKIRK, AN 

INDIVIDUAL, 

Appellants, 

vs. 

STANLEY NAKAMURA, AN 

INDIVIDUAL; AND STEPHANIE 

NAKAMURA, AN INDIVIDUAL, 

Respondents. 

No. 67816 

FILED 

MAY 2.0 2016 

TRAM K. LINDEMAN 

CLERK OF SUPREME COURT 

BY 5.)1 

DEPleic5;;LC2AE-14 

ORDER OF REVERSAL AND REMAND 

This is an appeal from a district court order granting 

summary judgment in a real property contract action. Eighth Judicial 

District Court, Clark County; Rob Bare, Judge. 

We review de novo a district court's order granting summary 

judgment, Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 

(2005), and must determine whether the district court erred in 

interpreting and applying a contract's negotiation and time-is-of-theessence provisions. We reverse. 

On August 5, 2014, respondent-buyers Stanley and Stephanie 

Nakamura entered into a purchase agreement ("Agreement") for 

appellant-sellers Jeff and Denise Vanbuskirk's real property. Close of 

Escrow was to be September 10, 2014. Section 2(C) of the Agreement 

stated: 

[1]f the appraisal is less than the Purchase Price, 

the transaction will go forward if (1) Buyer, at 

Buyer's option, elects to pay the difference and 

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purchase the property for the purchase price, or 

(2) Seller, at Seller's option, elects to adjust the 

purchase price accordingly, such that the 

Purchase Price is equal to the appraisal. If 

neither option (1) or (2) is elected, then parties 

may renegotiate; if renegotiation is unsuccessful, 

then either party may cancel this agreement upon 

written notice in which event the EMD shall be 

returned to buyer. 

Section 25 stated that "time is of the essence" and that "[n]o change, 

modification, or amendment of this Agreement shall be valid or binding 

unless such change, modification or amendment shall be in writing and 

signed by each party." 

On August 21st, after the appraisal came back $3,000 less 

than the purchase price, the Nakamuras sent the Vanbuskirks a proposed 

addendum lowering the purchase price, which evidenced their intent to 

forego the first option under Section 2(C); this document had no facial 

expiration date. On August 23rd, as the Vanbuskirks had not replied, the 

Nakamuras sent another proposed contract addendum with a 2-hour 

acceptance window. The Vanbuskirks did not reply within the specified 

deadline. On August 25th, the Vanbuskirks exercised option 2, accepting 

the August 21st addendum, which lowered the purchase price to match 

the appraisal value. The Nakamuras, however, insisted the addendum 

had expired and canceled the purchase agreement, demanding a return of 

their earnest money deposit. The Vanbuskirks refused to return the 

earnest money deposit, arguing that the Nakamuras failed to attempt 

renegotiations as required by Section 2(C). 

The Nakamuras filed a complaint alleging breach of contract, 

seeking return of their $25,000 earnest money deposit. The Nakamuras 

moved for summary judgment, and the Vanbuskirks opposed, counterSUPREME COURT 

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moving for a forfeit of the earnest money deposit. The district court 

granted the Nakamura's motion for summary judgment, holding that 

renegotiation efforts were unsuccessful because the Vanbuskirks 

"rejected" the Nakamuras' offer by not accepting it within the 2-hour 

timeframe. Further, the district court concluded that, because time was of 

the essence, the deadline for the Vanbuskirks to respond did not need to 

be reasonable. Thus, the district court held that the Nakamuras were 

entitled to a return of their earnest money deposit. 

"[A] fundamental principle of contract law is that the time for 

performance under a contract is not considered of the essence unless the 

contract expressly so provides or the circumstances of the contract so 

imply." Mayfield v. Koroghli, 124 Nev. 343, 349, 184 P.3d 362, 366 (2008). 

If time is of the essence, performance must occur at the "stated and 

unquestionable time" and parties are not entitled to a reasonable time to 

perform thereafter. Holmby, Inc. v. Dino, 98 Nev. 358, 361, 647 P.2d 392, 

394 (1982). "If time is not of the essence, the parties generally must 

perform under the contract within a reasonable time, which depends upon 

the nature of the contract and the particular circumstances involved." 

Mayfield, 124 Nev. at 349, 184 P.3d at 366. Whether the time in question 

is reasonable is a question of fact. Id. at 346, 184 P.3d at 364. 

A contract that includes a clause providing in general terms 

that time is of the essence does not necessarily apply to pre-closing 

conditions that do not affect the specified closing date. See Fletcher v. 

Jones, 333 S.E.2d 731, 734 n.1 (N.C. 1985) ("If the condition precedent 

were of crucial import to either or both parties and needed to be fulfilled 

by a certain date, other than that set for closing, a separate date should 

have been explicitly included to govern the condition precedent, along with 

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a separate time-is-of-the-essence provision if necessary. It would then 

have been clear that this particular condition, separate from the act of 

closing, must be strictly performed by a different date."); Harris v. 

Stewart, 666 S.E.2d 804, 807 (N.C. Ct. App. 2008) (holding that "the 

reasonable time to perform rule applies to pre-closing conditions, even 

where an express deadline for the pre-closing condition is provided" unless 

a time is of the essence provision expressly applies to that condition); see 

also Jackson v. Holmes, 307 So. 2d 470, 472 (Fla. Dist. Ct. App. 1975) 

(concluding that the time-is-of-the-essence provision applied to the closing 

of the purchase and not a pre-closing condition requiring a bank loan 

certification, holding: "[A] 'time is of the essence' provision will be given 

effect in an equitable proceeding provided it is shown to be clearly 

applicable to the contract requirement which it is sought to be applied"). 

Thus, courts must determine the scope of a time-is-of-theessence provision. See 17A Am. Jur. 2d Contracts § 471 (2004) ("[A] 

question of construction arises where the language of the contract taken in 

connection with the subject matter indicates some uncertainty as to the 

intended scope of the provisions that time is of the essence."); 8 Catherine 

M.A. McCauliff, Corbin on Contracts § 37.3 (Joseph M. Perillo ed., rev. ed. 

1999) ("Merely putting into the contract the words 'time is of the essence 

of this contract' may be effective for the purpose, because the context may 

make clear what the intention is and what the expression means. What 

the court must know, however, in order to give effect to such a cryptic 

provision, is: What performance at what time is a condition of what party's 

duty to do what?"). 

Here, the purchase agreement included a general time-is-ofthe-essence provision under Section 25, titled "Other Essential Terms," 

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which simply stated: "Time is of the essence." Section 2(C), which 

governed the options for appraisal, did not include a specific date or timeis-of-the-essence provision. After receiving the appraisal for $3,000 less 

than the purchase price, it took the Vanbuskirks 4 days to invoke option 2 

under Section 2(C)—providing the seller will lower the purchase price to 

match the appraised value. Had the Vanbuskirks expressly declined to 

lower the purchase price, then the parties should have attempted to 

renegotiate under option 3 of Section 2(C). For example, the parties could 

have renegotiated to split the cost of the difference between the purchase 

price and the appraised value. If those renegotiations were unsuccessful, 

either party had the right to cancel the agreement as per Section 2(C). 

In this case, however, the Vanbuskirks did not expressly 

decline to exercise option 2; rather, they invoked it. The district court, on 

the other hand, concluded that the Vanbuskirks "rejected" the addendum 

by not responding within the 2-hour deadline. Yet, the district court failed 

to analyze whether the time-is-of-the-essence provision applies to Section 

2(C), and, if not, whether the 4-day delay in accepting the addendum was 

reasonable. With 16 days remaining before the close of escrow after the 

Vanbuskirks accepted the addendum lowering the purchase price, it is not 

clear, based on the record before us, how this 4-day delay was 

unreasonable such that it would affect the closing date. 

Thus, we disagree that there are no genuine issues of material 

fact regarding the scope of the time-is-of-the-essence provision and the 

reasonableness of the delay in lowering the purchase price. Therefore, 

summary judgment should not have been granted in favor of the 

Nakamuras. Accordingly, we 

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ORDER the judgment of the district court REVERSED AND 

REMAND this matter to the district court for proceedings consistent with 

this order. 

Saitta 

J. 

cc: Hon. Rob Bare, District Judge 

Nathaniel J. Reed, Settlement Judge 

Black & LoBello 

Pintar Albiston LLP 

Eighth District Court Clerk 

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