by the Nevada Gaming Commission. Based on this investigation, Vegas 

South withdrew its liquor license applications and sought to change 

ownership. A dispute arose between the parties over whether Vegas 

South had breached the leases, which resulted in Vegas South ceasing 

operation of the poolside food and beverage venue and a delay in the 

opening of the burlesque lounge. 

Vegas South commenced the underlying district court actions 

seeking, among other things, to prevent Mandalay from terminating the 

burlesque lounge lease and to recover damages from Mandalay resulting 

from the closure of the poolside food and beverage venue.' The district 

court ultimately granted summary judgment in favor of Mandalay and 

against Vegas South for breach of the leases. Vegas South appealed. For 

the following reasons, we affirm. 

Standard of Review 

This court reviews a district court's order granting summary 

judgment de novo. Francis v. Wynn Las Vegas, 127 Nev. „ 262 P.3d 

705, 714 (2011). Summary judgment is proper only when "the pleadings, 

depositions, answers to interrogatories, and admissions on file, together 

with the affidavits, if any, show that there is no genuine issue as to any 

material fact and that the moving party is entitled to a judgment as a 

matter of law." NRCP 56(c). "[VV]hen reviewing a motion for summary 

judgment, the evidence, and any reasonable inferences drawn from it, 

'Vegas South sought damages from Mandalay under the theory of 

unjust enrichment. Vegas South claimed that Mandalay appreciated, 

accepted, and retained its estimated $450,000 in improvements to the 

poolside food and beverage venue, which created an implied contact. 

Accordingly, Vegas South argued, it would be inequitable for Mandalay to 

retain the benefit of the improvements without payment for their value. 

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must be viewed in a light most favorable to the nonmoving party." Wood 

v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). 

Under Nevada law, a contract must be read as a whole, giving 

meaning to all provisions. Ringle v. Bruton, 120 Nev. 82, 93, 86 P.3d 1032, 

1039 (2004). Moreover, this court "construe[s] a contract that is clear on 

its face from the written language," and will enforce the contract as 

written. State ex rel. Masto v. Second Judicial Dist. Court, 125 Nev. 37, 

44, 199 P.3d 828, 832 (2009). Construction of a contract term is a question 

of law that this court reviews de novo. Anvui, LLC v. G.L. Dragon, LLC, 

123 Nev. 212, 215, 163 P.3d 405, 407 (2007). 

Breach for failing to obtain a liquor license 

Vegas South argues that the district court erroneously 

concluded that it breached the liquor license provision of the Rose Lease. 

It argues that any delay in the issuance of the liquor license resulted from 

Mandalay's insistence that the parties amend the lease. Neither its 

citations nor the record, however, supports this position. Vegas South 

withdrew its application voluntarily, likely because it knew that its 

principals would not be awarded a license in light of the Prive 

investigation. Further, the principals never submitted a subsequent 

application. Vegas South cites to Clark County Code of Ordinances § 

8.20.030 for the proposition that it needed to withdraw its application to 

provide a valid, current lease. However, this provision of the Code does 

not require that the application be withdrawn, prohibit supplementation 

of the application with the updated lease, or prohibit changes to the 

application. Clark Cnty. Code of Ordinances § 8.20.030. More 

importantly, Vegas South's argument fails because the Rose Lease was 

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still valid, therefore complying with § 8.20.030. Vegas South had no 

reason to withdraw the application based on the still-valid lease. 

Because Vegas South withdrew its application without 

justification, we conclude that it defaulted on the lease. The Rose Lease 

required that Vegas South immediately apply for a liquor license and 

provided that if Vegas South was "unable to obtain a liquor license or has 

its liquor license suspended, limited or revoked, such failure will 

constitute an event of default and result in the immediate termination of 

this Lease." While there was no deadline set for obtaining the liquor 

license, time was clearly of the essence where the lease required an 

"immediate" application for the license. Moreover, even if time was not of 

the essence, Vegas South could not have performed within a reasonable 

time without an application pending. Mayfield v. Koroghli, 124 Nev. 343, 

349, 184 P.3d 362, 366 (2008) ("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." (footnote and internal quotation omitted)). We 

therefore conclude that Vegas South breached this material provision in 

the contract. See Covington Bros. v. Valley Plastering, Inc., 93 Nev. 355, 

360, 566 P.2d 814, 817 (1977) (stating that anticipatory repudiation of a 

contract occurs when one party's nonperformance is "clear, positive, and 

unequivocal . . . in light of the total factual context of the individual case." 

(citation omitted)); Finnell v. Bromberg, 79 Nev. 211, 225, 381 P.2d 221, 

228 (1963) ("Where a party bound by an executory contract repudiates his 

obligation before the time for performance, the promisee. . . [may] treat the 

contract as ended . . . [and] maintain an action at once for the damages 

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occasioned by such anticipatory breach." (emphasis added) (quoting 17 

C.J.S. Contracts § 472, at p. 973)). 

Breach for failure to pay rent 

Vegas South argues that their failure to pay rent did not 

constitute a breach of the Rose Lease because Mandalay's general counsel, 

William Martin, verbally informed Vegas South that Mandalay did not 

expect rent until the parties finalized the Third Amendment to the lease. 

We conclude that Vegas South breached the Rose Lease by failing to pay 

rent because Mandalay did not waive or modify the rental terms, as 

specified in section 27.13(b) of the Rose Lease. In order to effectuate a 

modification or waiver of contract terms, section 27.13(b) provides that 

"[n]o term . . . required to be performed . . . shall be waived, altered or 

modified except by a written instrument executed by the other party." 

(Emphasis added.) Under the lease, Mandalay needed to provide a rental 

modification or waiver in writing; Martin's verbal statements do not 

represent an adequate waiver or modification of the Rose Lease. Further, 

any alterations to the Rose Lease terms must have been executed by the 

other party. Accordingly, no modification or waiver of the terms of the 

Rose Lease could take effect. Because Vegas South did not provide 

evidence of a waiver or modification that satisfies the procedure outlined 

in Section 27.12(b) of the Rose Lease, their argument fails. 

Vegas South also argues that Mandalay cannot recover any 

rent accrued after termination of the Rose Lease in December 2009, as 

Mandalay did not make an effort to attract replacement tenants. It 

argues that Mandalay had a duty to mitigate damages after termination of 

the Lease and can therefore only recover rent accrued prior to the 

termination of the Rose Lease in December 2009. Regardless of section 

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24.2(b)'s terms regarding Vegas South's rent liability after termination of 

the Rose Lease, Mandalay only sought past due rent accrued before the 

Lease termination in December 2009. Neither party disputes the rental 

amounts before the termination of the Lease or that they are still owed. 

Accordingly, Vegas South's claim that Mandalay failed to mitigate 

damages after December 2009 is irrelevant, and their argument fails 

We have considered Vegas South's remaining issues on appeal 

and concluded that they are without merit. 

Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 

Hardesty 

rZel t

Douglas 

Cjl4xJ '1 

Cherry 

cc: Hon. Susan Scann, District Judge 

Stephen E. Haberfeld, Settlement Judge 

Kolesar & Leatham, Chtd. 

Pisanelli Bice, PLLC 

Eighth District Court Clerk 

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