Ritter, as CEO of the Focus Property Group, executed personal guarantees 

for these loans. 2 

Eventually, Focus was unable to pay interest on its loans. As 

a result, Builder's Capital and Focus entered into a three-year forbearance 

agreement for each loan at issue. Because Boyd had not expressly 

consented to the forbearance agreements, he initiated a lawsuit contesting 

their enforceability. As the trial date for the lawsuit approached, Boyd, 

Ritter, and their respective counsel agreed to extend that date to provide 

the parties time to work out a resolution. 

During the next five months, the parties developed a system to 

resolve Boyd's concerns through prepackaged bankruptcy plans 

(prepacks). Each prepack would transfer the property securing the loan at 

issue to a new entity owned by the lenders in proportion to their original 

contribution to that loan. In exchange for this ownership interest, the 

lenders would release the borrowers (e.g., JV Properties and NGA #2) and 

guarantor (Ritter) from future liability. Each loan was to have a separate 

prepack, which included a term sheet that outlined the plan and an 

operating agreement that governed the lenders' interests after the 

approval of the prepack. 

With the new trial date approaching, Boyd, Ritter, Builder's 

Capital, JV Properties, and NGA #2 entered into the Trial Continuance 

'The parties filed a written stipulation that all issues raised on 

appeal related to the Victor Vista loan became moot when the Victor Vista 

prepackaged bankruptcy plan was confirmed. Accordingly, we do not 

further address any issues related to the Victor Vista loan. 

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Agreement (TCA). The TCA deferred trial so that the parties could 

continue their attempt to resolve the case through prepacks. In the TCA, 

the parties agreed to execute and deliver into escrow separate sets of 

stipulations and orders (one set for each loan) for dismissal, and agreed 

that the forbearance loan term sheets for each subject loan was null and 

void. The parties also agreed to execute joint escrow instructions, which 

stated that if Focus or Builder's Capital violated certain provisions of the 

TCA with respect to a subject loan, Boyd could terminate the TCA and 

immediately file the dismissal pertaining to that loan. 

Additionally, the parties agreed that the prepacks for the 

loans at issue would be substantially similar to a previously approved 

prepack—the "Dairy Loan." The TCA also provided that Focus and Boyd 

were required to mutually agree upon any modification to a prepack before 

distributing it with voting ballots to the lenders for approval. If Focus 

sent lenders prepack documents unapproved by Boyd, then Boyd could 

terminate the TCA by written notice as to the related loan and 

immediately file that loan's respective dismissal. The TCA also required 

the parties to perform other actions reasonably necessary to affect the 

purpose and intent of the TCA. Finally, the TCA stated that the 

prevailing party in any action or proceeding brought in connection with a 

dispute related to the terms or enforcement of the TCA would be entitled 

to recover costs and reasonable attorney fees from the other party. 

After tailoring prepacks as needed, Focus began to distribute 

them. Because Boyd voted against it, the NGA #2 prepack was not 

approved. 

Boyd eventually sought deficiency judgments against the 

relevant Focus companies and Ritter as guarantor related to his loan 

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contributions. The Focus parties filed counterclaims for breach of contract 

and breach of the implied covenant of good faith and fair dealing, among 

other things. Ultimately, the district court filed an order granting Boyd a 

deficiency judgment with interest for each of the loans at issue. However, 

the district court also found that Boyd breached the TCA's implied 

covenant of good faith and fair dealing with respect to the NGA #2 loan 

because Boyd voted against that prepack. The district court then ordered 

Boyd to pay the attorney fees and costs associated with the NGA #2 

prepack. Additionally, the district court ordered and declared Boyd's 

ballot cast for confirmation of the NGA #2 prepack. 

On appeal, Boyd argues that the district court erred and 

abused its discretion by (1) finding Boyd breached the implied covenant of 

good faith and fair dealing, (2) ordering Boyd's ballot cast in favor of the 

NGA #2 prepack, and (3) awarding attorney fees and costs to 

respondents/cross-appellants. 

DISCUSSION 

Breach of Contract 

Boyd argues that the district court erred by finding a breach of 

the implied covenant of good faith and fair dealing because Boyd did not 

violate a term or the spirit of a term found in the TCA. The Focus parties 

contend that Boyd intentionally engaged in unfair conduct contrary to the 

spirit and intent of the TCA that caused them actual harm. We do not 

consider either of these arguments because we conclude that Boyd 

breached the TCA's terms when voting against the NGA #2 prepack. 

We review contract interpretation de novo. May v. Anderson, 

121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005). When engaging in this 

review, we construe and enforce contracts as a whole based on their 

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written language. See Rd. & Highway Builders, L.L.C. v. N. Nev. Rebar, 

Inc., 128 Nev. „ 284 P.3d 377, 380-81 (2012); Kaldi v. Farmers Ins. 

Exch., 117 Nev. 273, 278, 21 P.3d 16, 20 (2001). 

The parties executed the TCA to postpone trial for the purpose 

of resolving their conflict through prepacks. Each term sheet and 

operating agreement was to be modeled after the "Dairy Loan" prepack, 

and Boyd and Focus were required to mutually agree to appropriate 

modifications before distributing those documents to the lenders with 

voting ballots for prepack approval. If Focus distributed unapproved 

documents for a loan, Boyd could terminate the TCA and file a dismissal 

for that loan. 

Here, the record shows that Focus complied with the TCA 

when distributing the NGA #2 prepack documents and voting ballots to 

the lenders. Boyd's failure to object to that distribution during the 

solicitation process indicated that those documents were preapproved 

pursuant to the TCA, demonstrating that Boyd and Focus agreed to 

resolve the NGA #2 loan through its prepack. Having reached this 

resolution, we conclude that Boyd was required to cast a ballot in favor of 

the NGA #2 prepack as an act reasonably necessary to fulfill the purpose 

of the TCA. We therefore conclude that by voting against the NGA #2 

prepack, Boyd breached the TCA and the Focus parties were entitled to 

appropriate remedies. 

Specific Performance 

We review a district court's grant or refusal of specific 

performance for abuse of discretion. Serpa v. Darling, 107 Nev. 299, 304, 

810 P.2d 778, 782 (1991). "[S]pecific performance is available only when: 

(1) the terms of the contract are definite and certain; (2) the remedy at law 

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is inadequate; (3) the appellant has tendered performance; and (4) the 

court is willing to order [specific performance]." Mayfield v. Koroghli, 124 

Nev. 343, 351, 184 P.3d 362, 367 (2008) (second alteration in original) 

(internal quotations omitted). 

Specific performance requiring Boyd to cast his ballot in favor 

of the NGA #2 prepack was an appropriate remedy. Boyd's obligation to 

vote in favor of the NGA #2 prepack after approving the respective term 

sheet and operating agreement is sufficiently definite and certain based on 

Boyd's requirement to undertake acts reasonably necessary to effectuate 

the purpose of the TCA. Additionally, attorney fees and costs alone would 

be an inadequate remedy to compensate the Focus parties for their loss if 

the NGA #2 prepack was not approved. Further, the Focus parties 

tendered performance by negotiating with Boyd and ultimately 

distributing the NGA #2 prepack documents. Lastly, the district court 

was willing to exercise its discretion in favor of specific performance. 

Accordingly, although the district court's basis for awarding specific 

performance was flawed, we agree that specific performance ordering 

Boyd's ballot cast in favor of the NGA #2 prepack was an appropriate 

remedy. See Dynamic Transit Co. v. Trans Pac. Ventures, Inc., 128 Nev. 

n.3, 291 P.3d 114, 117 n.3 (2012) (explaining that we will uphold a 

lower court's correct decision, even if it is based on the wrong reasons). 

Attorney Fees and Costs 

This court reviews a district court's award of attorney fees and 

costs for an abuse of discretion. U.S. Design & Constr. Corp. v. Int'l Bhd. 

of Elec. Workers Local 357, 118 Nev. 458, 462, 50 P.3d 170, 173 (2002). A 

district court can only award attorney fees and costs when authorized by 

statute, contract, or rule. Id. Here, the TCA expressly allows the award of 

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attorney fees and costs to the prevailing party in a dispute related to the 

agreement. Because the Focus parties are prevailing parties, we conclude 

that the district court did not abuse its discretion when awarding attorney 

fees and costs. Based on the foregoing, we affirm the district court's 

decision. 3 

ORDER the judgment of the district court AFFIRMED. 

J. 

Hardesty 

(---- 

J. 

Douglas 

CC: Hon. Susan Scann, District Judge 

M. Nelson Segel, Settlement Judge 

Holley, Driggs, Walch, Puzey & Thompson/Las Vegas 

Gregory J. Walch 

Brooks Hubley LLP 

Patti, Sgro & Lewis 

Bogatz Law Group 

Eighth District Court Clerk 

3We have considered all of Boyd's remaining arguments and 

determine that they lack merit. We also note that respondents/cross0 appellants made their arguments on cross-appeal contingent to our 

reversal of the district court's decision. Accordingly, because we affirm the 

district court's decision and given the parties' stipulation as to the Victor 

Vista loan, we do not consider those arguments. 

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