The tenant improvement allowance underlying this appeal 

was provided for in the lease agreement between 1st Commerce Bank and 

Camino Al Norte. 1st Commerce exhausted the allowance, and on 

December 4, 2006, 1st Commerce President Al Gourrier completed a walkthrough memorandum acknowledging substantial completion of the 

construction. 1st Commerce took possession of the property on that day. 

Four months later, in April 2007, Camino Al Norte entered 

into negotiations to sell the building to Stevinson. Before completing the 

purchase, Stevinson asked for estoppel certificates from the building's 

tenants. 1st Commerce initially refused, citing Camino Al Norte's failure 

to have paid certain broker's fees associated with the lease. Of note, 1st 

Commerce said nothing about an unpaid tenant improvement allowance. 

Camino Al Norte paid the broker's fees, whereupon 1st 

Commerce executed the estoppel certificate. In the certificate, 1st 

Commerce represented that (1) the lease was in full force and effect; (2) 

"there are no uncured defaults by either Tenant or Landlord" under the 

lease; (3) "all conditions of said lease to be performed by Landlord and 

necessary to the enforceability of said lease have been satisfied"; and (4) 

"there are no existing. . . offsets which the undersigned has against the 

enforcement of said lease by Landlord." Stevinson completed the purchase 

of the property and assumed the lease, replacing Camino Al Norte as 1st 

Commerce's landlord. 

Roughly a year after Stevinson bought the property, during an 

internal audit of its lease, 1st Commerce discovered an expended-butunreimbursed tenant improvement claim for $217,320.00. It asked 

Stevinson to pay this claim. Citing the estoppel certificate, Stevinson 

refused, and 1st Commerce sued. 

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After eight months of discovery, Stevinson moved for summary 

judgment, arguing that the estoppel certificate barred 1st Commerce's 

claim. Stevinson supported its motion with the estoppel certificate, the 

lease, the tenant improvement work letter, 1st Commerce's answers to 32 

requests for admission, and an affidavit from Stevinson's outside financial 

advisor, Mark Burrell, attesting to his due diligence in closing the 

purchase of the building and the fact the unreimbursed tenant allowance 

had not been brought to his attention before the close. Stevinson also 

submitted invoices and releases indicating that 1st Commerce had 

expended over $400,000 in tenant improvements by December 2006 and 

the move-in walk-through memorandum signed by 1st Commerce 

President Al Gourrier. 

1st Commerce opposed Stevinson's motion for summary 

judgment based on a declaration from its president, Al Gourrier, who had 

signed the estoppel certificate. The Gourrier declaration states that, "The 

Bank disputes [Stevinson's] contention that they lad no knowledge of the 

alleged non-repayment' of the tenant improvement allowance . . . ." 

According to Gourrier, "[t]he Bank has known since the commencement of 

the Lease that it has a contractual right to the unpaid tenant 

improvement allowance, especially since it is set out clearly and 

specifically in the Lease" and Stevinson, had it "reviewed the 

Lease[,] . . . would have become aware of the [outstanding] tenant 

improvement allowance" owed. 1st Commerce also argued that, by its 

terms, the estoppel certificate did not require disclosure of the unpaid 

tenant improvement allowance. Citing NRCP 56(f), 1st Commerce 

included in its opposition a request for additional time for discovery. 

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The district court granted Stevinson's motion for summary 

judgment. It held that the "unpaid tenant expense incurred by the bank 

during its lease with Camino Al Norte constitutes both a condition of the 

lease to be performed by the landlord and a default under the lease 

agreement" that 1st Commerce should have listed on the estoppel 

certificate. While it acknowledged that the certificate did not specifically 

query the status of the tenant improvement allowance, it held that "it is 

not necessary for an estoppel certificate to address each and every possible 

claim against a landlord in order for the certificate to bar a subsequent 

tenant claim," and that, under Yee v. Weiss,110 Nev. 657, 662, 877 P.2d 

510, 513 (1994), Stevinson was entitled to rely on 1st Commerce's 

representations in the estoppel certificate. The district court did not 

explicitly address 1st Commerce's NRCP 56(f) request. 

1st Commerce appeals and we affirm. 

DISCUSSION 

"Summary judgment is appropriate under NRCP 56 when the 

pleadings, depositions, answers to interrogatories, admissions, and 

affidavits, if any, that are properly before the court demonstrate that no 

genuine issue of material fact exists, and the moving party is entitled to 

judgment as a matter of law." Wood v. Safeway, Inc., 121 Nev. 724, 731, 

121 P.3d 1026, 1031 (2005). After the moving party has proffered evidence 

sufficient to support summary judgment, the party opposing summary 

judgment is obligated to, by affidavit or otherwise, "set forth specific facts 

demonstrating the existence of a genuine issue for trial or have summary 

judgment entered against [it]." Id. at 732, 121 P.3d at 1031. Summary 

judgment can be appropriate in the estoppel setting. LaForge v. State, 

University System,116 Nev. 415, 419, 997 P.2d 130, 133 (2000); 

Resolution Trust Corp. v. District of Columbia, 78 F.3d 606, 610 (D.C. Cir. 

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1996) (upholding summary judgment based on representations made in an 

estoppel certificate). 

Summary judgment was pro_per based on the estoppel certificate 

1st Commerce argues that the estoppel certificate did not 

apply to the unpaid tenant reimbursement allowance because the latter 

was not a default, condition, or offset under the lease. Alternatively, it 

argues that its omission of the allowance is excusable because the 

certificate was ambiguous. 

While estoppel certificates are not contracts, courts rely on 

fundamental rules of contract interpretation in construing and enforcing 

them. See Bed N' Bath v. Spring Valley Partnership, 586 N.Y.S.2d 416, 

418 (App. Div. 1992) (applying the "familiar canon of construction 

preferring an interpretation of an instrument that avoids inconsistencies 

and gives meaning to all of its terms"). We do the same, see Yee,110 Nev. 

at 662, 877 P.2d at 513, and conclude that, on the record presented, 

Stevinson was entitled to summary judgment. While the certificate did 

not specifically ask about unpaid tenant improvement allowances, the 

allowance was an offset to rent and the landlord's failure to pay the 

allowance when due constituted a default under the lease. As such, it was 

incumbent on 1st Commerce to list it. 1st Commerce's refusal to execute 

the estoppel certificate until the broker's fee issue was resolved 

demonstrates its understanding of the breadth and importance of the 

certificate.' 

'We agree with 1st Commerce that the district court erred in 

deeming payment of the tenant improvement allowance to be a condition 

to enforceability of the lease. "A condition is an event, not certain to occur, 

which must occur, unless its non-occurrence is excused, before 

continued on next page. . . 

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The record includes a work letter concerning the tenant 

improvements that, as a cross-referenced and contemporaneous document, 

is interpreted as part of the lease. Lincoln Welding Works, Inc. v. 

Ramirez, 98 Nev. 342, 345, 647 P.2d 381, 383 (1982) (cross-referenced and 

contemporaneous documents must be interpreted as a single instrument). 

Under paragraph (B)(2) of the work letter: 

Landlord shall contribute a tenant improvement 

allowance of $40.00 per usable square feet, 

which totals approximately $217,320 (the 

"Tenant Improvement Allowance"). Tenant agrees 

to pay any and all costs above the Tenant 

Improvement Allowance. Tenant acknowledges 

that [it] shall NOT be entitled to any payment or 

rent reduction from the Landlord for any part of 

the Tenant Improvement Allowances not utilized 

by the Tenant improvement. 

(Emphases in original). This language indicates that the parties 

understood that utilized tenant improvements would entitle 1st Commerce 

to a rent reduction, or offset, up to the amount spent or the amount of the 

allowance, whichever was less. Black's Law Dictionary 1195 (9th ed. 

2009) (defining offset as "[s]omething (such as an amount or claim) that 

. . . continued 

performance under a contract becomes due." Restatement (Second) of 

Contracts § 224 (1981). For example, section 13 of the work letter (if 

landlord fails to complete construction on time the tenant may terminate) 

and section 1 of the addendum to the lease create express conditions (the 

terms of the lease are contingent upon tenant obtaining regulatory 

approval). Because failure to pay the allowance was not expressed as a 

condition, we interpret it as a promise. See id. § 227 (indicating when it is 

doubtful whether a contract term is a promise or a condition, the general 

rule is to interpret the term as a promise). 

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balances or compensates for something else"). Thus, the tenant 

improvement allowance should have been listed under paragraph 9 of the 

certificate, in which 1st Commerce certified that there were "no existing 

defenses or offsets . . . against the enforcement of said lease by Landlord." 

Furthermore, the lease and work letter, identified as exhibit 

"C" in the lease, make failure to pay the tenant improvement allowance a 

default under the lease. Paragraph 6 of the lease notes: "Landlord agrees 

to install, at Landlord's cost and expense, except as otherwise stated 

herein, the improvements described in Exhibit 'C' attached hereto." The 

work letter sets out specifications 2for building improvements and 

obligates the landlord, under paragraph 13, to complete construction and 

meet all occupancy requirements. Paragraphs 7 and 9 of the work letter 

contemplate using the "landlord's lender" as a source of financing up to the 

full value of the tenant improvement allowance. And, paragraph 17 

makes the landlord's failure to complete the work letter's directives, 

including paying for tenant improvements, a default under the lease: 

Any default by Tenant OR Landlord under the 

term of this Work Letter shall constitute a default 

under the Lease and shall entitle Landlord or 

Tenant (as the case may be) to exercise all 

remedies set forth therein. Both Tenant and 

Landlord agree to use reasonable diligence in 

performing all of the respective obligations and 

duties under this Work letter and in proceeding 

21t is not clear these specifications controlled. The addendum to the 

lease, executed at the same time as the lease and work letter, give 1st 

Commerce the ability to apply the tenant improvement allowance at its 

sole discretion. 

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the construction and completion of all Tenant 

Improvements in the premises. 

Despite these provisions in the contract documents, 1st 

Commerce argues the landlord's failure to pay tenant improvements was 

not a default because (1) under the work letter there was not a date by 

which the landlord had to pay the allowance (the letter required 

"reasonable diligence"); and (2) even if failure to pay tenant improvements 

was a default, it never ripened into an uncured default, which is what the 

estoppel certificate asked about. On this second point, 1st Commerce 

explains that the lease gives the landlord 30 days upon notice to cure any 

default, a notice 1st Commerce never sent. As to the offset provision of the 

estoppel certificate, 1st Commerce argues that this provision is ambiguous 

because it only asks for representations that go to "enforcement of the 

lease," not all offsets. 3 

1st Commerce's strained reading of the contract documents 

and estoppel certificate fails. Not only, as just discussed, is 1st 

Commerce's reading contrary to the underlying contract documents, it is 

not the reading evidenced by 1st Commerce's conduct. See 11 Richard A. 

Lord, Williston on Contracts § 32:14 (4th ed. 1999) (explaining that a 

party's conduct before a dispute arises is evidence of its understanding of a 

contract's terms); Shelton v. Shelton, 119 Nev. 492, 497, 78 P.3d 507, 510 

(2003) (providing that acts by a party indicates its understanding of the 

contract terms and may resolve otherwise ambiguous contract language). 

31t also argues that the term offset in the certificate really referred 

to the term of art "setoff." See Aviation Ventures v. Joan Morris, Inc., 121 

Nev. 113, 120, 110 P.3d 59, 63-64 (2005). This argument lacks merit. 

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When asked to execute the certificate, 1st Commerce initially refused, 

citing to the fact it was owed an unpaid broker's fee that the estoppel 

certificate would preclude it from recovering. This demonstrates that 1st 

Commerce understood the terms of the estoppel certificate to require a 

broad range of disclosures against the landlord to Stevinson, the successor 

landlord, whether preceded by demand, failure-to-cure, and the other 

provisions governing defaults. As with the tenant allowance, the estoppel 

certificate did not ask about broker's fees specifically—as 1st Commerce 

admits, the broker's fees are not even part of the lease. 41st Commerce's 

conduct evidences its understanding that the certificate applied to 

unlisted, non-lease rights, contrary to the strict reading 1st Commerce 

now asserts. 

The fact that 1st Commerce did not know about the accrued 

but unreimbursed tenant improvement allowance until it surfaced in its 

later audit of the lease does not assist 1st Commerce. A party who 

executes an estoppel certificate is not affirmatively waiving its rights, such 

that its lack of knowledge of an existing but overlooked claim defeats 

enforcement, as 1st Commerce argues. Instead, the signer undertakes a 

responsibility to represent to a relying party all claims of which it knew or 

should have known; the signer has a "duty to inquire and determine, 

4 1st Commerce attempts to distinguish the broker's fee from the 

allowance. It argues that, because the broker's fee was not part of the 

lease, it could not execute the certificate without collecting the fee. On the 

other hand, it argues, the allowance was in the lease and it could execute 

the certificate without mentioning its accrued right to reimbursement. We 

find no merit to this distinction. The certificate specifically asked for 

information pertaining to the lease. 

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insofar as reasonably possible, what claims exist." K's Merchandise Mart, 

Inc. v. Northgate Ltd. P'ship, 835 N.E.2d 965, 972 (Ill. App. Ct. 2005); see 

also Piggly Wiggly v. Wolpert Associates, 519 So.2d 371, 372-73 (La. Ct. 

App. 1988) (providing that a tenant has a duty to document rights of 

which it knows or should know when executing estoppel certificates); Yee, 

110 Nev. at 662, 877 P.2d at 513. In view of the certificate's 

conventionally understood purpose, 1st Commerce's contractual obligation 

under the lease to present a certificate upon which a purchaser could rely, 

and its knowledge of its right under the lease to the allowance, 51st 

Commerce's waiver argument fails. 6 

5In his declaration opposing summary judgment, 1st Commerce 

president Al Gourrier stated: "The Bank has known since the 

commencement of the Lease that it has a contractual right to the unpaid 

tenant improvement allowance." This admission, coupled with the walkthrough memorandum dated four months before the estoppel certificate 

was issued and the assertion of the work's substantial completion prevents 

any argument that the claim had not accrued when the certificate was 

given. 

6We also reject 1st Commerce's argument that the estoppel 

certificate should be strictly construed against the drafter. This rule only 

applies "so long as other factors are not decisive." Restatement (Second) 

Contracts § 206 cmt. a (1981); see also 5 Margaret N. Kniffin, Corbin on 

Contracts § 24.27 (rev. ed. 1998) (explaining that the interpretation of 

contra proferentem is employed only "[a]fter the court has examined all of 

the other factors that affect the search for the parties' intended meaning" 

and there remains a "question as to what meaning was intended"). Here, 

the wording of the contract documents and estoppel certificate, together 

with 1st Commerce's conduct, are decisive. 

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"[T]he general purpose of an estoppel certificate . . . is to 

assure one or both parties to an agreement that there are no facts known 

to one and not the other that might affect the desirability of entering into 

the agreement, and to prevent the assertion of different facts at a later 

date." Lawyers Title Ins. v. Honolulu Fed. S&L, 900 F.2d 159, 163 (9th 

Cir. 1990); see also Black's Law Dictionary 551 (6th ed. 1990) (An estoppel 

certificate is "[a] signed statement by a party, such as a tenant or a 

mortgagee, certifying for another's benefit that certain statement of facts 

are correct, as of the date of the statement, such as that a lease exists, 

that there are no defaults, and that rent is paid to a certain date."); see 

also 31 C.J.S. Estoppel § 16 (2011) ("[A] party who executes an estoppel 

certificate will not be allowed to raise claims of which it knew or should 

have known at the time the certificate was executed."). And when the 

parties assign a particular purpose to an instrument, this court is 

compelled to interpret the instrument in light of that purpose, 

Restatement (Second) of Contracts § 202(1) (1981) (establishing that 

contracts must be interpreted in light of their principal purpose), as we do 

here. 

The district court did not err in not granting 1st Commerce's request for 

additional time to generate a genuine issue of material fact 

1st Commerce next argues that potential issues of fact exist as 

to what Stevinson knew or should have known, and when, that should 

have defeated summary judgment. Cf. Hammelburger v. Foursome Inn 

Corp., 431 N.E.2d 278, 280 (1981) (explaining if party seeking estoppel 

knows of a defect in the formation of estoppel certificate, it cannot later 

avail itself of the estopping effect as to that defect); 7979 Airport Garage v. 

Dollar Rent A Car, 245 S.W.3d 488, 495 (Tex. App. 2007) (providing that 

party seeking enforcement of an estoppel certificate cannot succeed when 

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it knew of a right not listed in the certificate). 7The problem with this 

argument is that 1st Commerce provided no evidence to support an actual 

or even constructive knowledge defense to Stevinson's properly supported 

summary judgment motion, which included an affidavit attesting to 

Stevinson's due diligence. Without evidence, 1st Commerce's bald 

suspicion, articulated by its president Al Gourrier, that Stevinson knew or 

should have known of the accrued allowance is not sufficient to escape 

summary judgment. Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 

315 (7th Cir. 2011) ("[S]uspicion is not enough to get past a motion for 

summary judgment"); Wood,121 Nev. at 732, 121 P.3d at 1031 (The party 

opposing summary judgment is obligated to, by affidavit or otherwise, "set 

7We recognize the split of authority that exists as to whether 

constructive knowledge, as opposed to actual knowledge, will defeat 

reliance on an estoppel certificate. Compare Plaza Freeway, L.P. v. First 

Mountain Bank,96 Cal. Rptr. 2d 865, 868 (Ct. App. 2000) (explaining that 

a party is estopped from contracting material terms of lease contract), and 

Hammelburger,431 N.E.2d at 280 (explaining situations when an 

estoppel certificate may be invalidated), and Bush Realty Assocs. v. A.M. 

Cosmetics, Inc.,770 N.Y.S.2d 19, 20 (App. Div. 2003) (stating that a party 

may escape its representations only if "there is an equitable basis to 

invalidate the certificate" or the party seeking enforcement took with 

knowledge of "some defect in the manner in which the certificate was 

obtained"), with KPW Assocs. v. S.S. Kresge Co.,535 So.2d 1173, 1180 (La. 

Ct. App. 1988) (providing that a party did not exercise "such diligence as 

would reasonably be expected" when it possessed, but apparently did not 

read, a report that detailed the problems with the parking lot), and 

Perpetual Bldg. Ltd. Ptshp. v. Dist. of Columbia, 618 F. Supp. 603, 615 

(D.D.C. 1985) (explaining that reliance on an estoppel certificate must be 

reasonable). It is not necessary to resolve this split in the context of this 

case given the absence of admissible evidence to suggest that Stevinson 

knew or should have known of the outstanding unpaid tenant 

improvement allowance. 

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forth specific facts demonstrating the existence of a genuine issue for trial 

or have summary judgment entered against [A]"); Collins v. Union Fed. 

Savings & Loan,99 Nev. 284, 302, 662 P.2d 610, 621 (1983) (The 

nonmoving party "is not entitled to build a case on the gossamer threads 

of whimsy, speculation and conjecture." (quoting Hahn v. Sargent,523 

F.2d 461, 468 (1st Cir. 1975))). Especially is this true given the Gourrier 

declaration, in which Gourrier acknowledges his awareness of the tenant 

improvement allowance provision when he executed the estoppel 

certificate and that, notwithstanding this knowledge, 1st Commerce failed 

to investigate, discover, and submit the claim for remaining sums due 

until an internal audit, months later, turned up a balance owed. See Yee, 

110 Nev. at 662, 877 P.2d at 513 (holding as a matter of law that the 

recipient of an estoppel certificate signed by a tenant who signed it 

without reading it was entitled to rely on the certificate). 1st Commerce, 

in sum, adduced no evidence sufficient to create a genuine issue of 

material fact given the Burrell declaration and the documents put forward 

in support of summary judgment. 

Nor did the district court abuse its discretion in not granting 

1st Commerce's request, citing NRCP 56(f), for further discovery. The 

Gourrier declaration, while it expresses a desire to "test" the 

reasonableness of Stevinson's reliance on its estoppel certificate, failed to 

meet the requirements of NRCP 56(f), see Choy v. Ameristar Casinos, Inc., 

127 Nev. , 265 P.3d 698, 700 (2011), rehearing denied,128 Nev. 

, 279 P.3d 191 (2012), much less to suggest avenues of discovery, not 

previously explored, that would allow 1st Commerce to overcome this 

court's holding in Yee,110 Nev. at 662, 877 P.2d at 513, given the 

uncontested record facts. 

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C. J. 

For these reasons, we 

ORDER the judgment of the district court AFFIRMED. 

J. 

Cherry 

cc: Lansford W. Levitt, Settlement Judge 

Kolesar & Leatham, Chtd. 

Olson, Cannon, Gormley, Angulo & Stoberski 

Eighth District Court Clerk 

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