RIVERWOOD PARTNERS, LLC, a Nevada limited liability company v. MAX BAER PRODUCTIONS, LTD., a California corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RIVERWOOD PARTNERS, LLC, a
Nevada limited liability company,
Plaintiff - Appellant,
v.
MAX BAER PRODUCTIONS, LTD., a
California corporation,
Defendant - Appellee.
No. 12-15436
D.C. No. 3:10-cv-00668-RCJ-VPC
District of Nevada,
Reno
MEMORANDUM*
RIVERWOOD PARTNERS, LLC, a
Nevada limited liability company,
Plaintiff - Appellee,
v.
MAX BAER PRODUCTIONS, LTD., a
California corporation,
Defendant - Appellant.
No. 12-15581
D.C. No. 3:10-cv-00668-RCJ-VPC
District of Nevada,
Reno
FILED
MAR 20 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Cir. R. 36-3.

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MAX BAER PRODUCTIONS, LTD, a
California corporation,
Plaintiff - Appellant,
v.
RIVERWOOD PARTNERS, LLC, a
Nevada Limited-Liability Company,
Defendant - Appellee.
No. 12-16743
D.C. No. 3:09-cv-00512-RCJ-
RAM
District of Nevada,
Reno
MAX BAER PRODUCTIONS, LTD, a
California corporation,
Plaintiff - Appellee,
v.
RIVERWOOD PARTNERS, LLC, a
Nevada Limited-Liability Company,
Defendant - Appellant.
No. 12-17811
D.C. No. 3:09-cv-00512-RCJ-
RAM
District of Nevada,
Reno
Appeal from the United States District Court
for the District of Nevada
Robert C. Jones, District Judge, Presiding
Submitted February 11, 2014**
San Francisco, California
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Before: TALLMAN and RAWLINSON, Circuit Judges, and GARBIS,
Senior District Judge.***
Max Baer Productions (“Baer”) appeals the district court’s dismissal of its
breach of contract claims and the district court’s dismissal of its counterclaim for
conversion in the deficiency action filed by Riverwood Partners (“Riverwood”).
Riverwood appeals the district court’s denial of attorneys’ fees in the contract
action as well as the district court’s grant of summary judgment to Baer in the
deficiency action. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we
affirm.
It is clear from the face of the parties’ agreement that Riverwood’s
development obligations were not yet due, and Baer’s remedies for Riverwood’s
failure to complete the development work were limited to Baer’s assuming
completion of the work itself and seeking Riverwood’s pro rata share of the costs.
See United Rentals Highway Techs., Inc. v. Wells Cargo, Inc., 289 P.3d 221, 229
(Nev. 2012) (holding that a court will not “attempt to increase the legal obligations
of the parties where the parties intentionally limited such obligations”). Because
no breach existed under the parties’ agreement, and because Baer did not seek any
damages, we affirm the district court’s dismissal of Baer’s contract claims.
*** The Honorable Marvin J. Garbis, Senior United States District Judge
for the District of Maryland, sitting by designation.
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We also affirm the district court’s dismissal of Baer’s conversion claim
because Baer abandoned its claim on appeal when it failed to cite to the record or
to any legal authority in its opening brief. See Indep. Towers of Washington v.
Washington, 350 F.3d 925, 929 (9th Cir. 2003) (noting that bare assertions of
issues do not preserve claims).
Riverwood failed to provide the statutorily mandated evidence of the
predicate foreclosure sale. See Nev. Rev. Stat. § 40.455 (providing that a court
shall award a deficiency judgment to the beneficiary of a deed of trust “if it appears
from the sheriff’s return or the recital of consideration in the trustee’s deed that
there is a deficiency of the proceeds of the sale and a balance remaining due”). The
fact that Riverwood was later able to present the district court with a signed
trustee’s deed was not grounds to reconsider the court’s previous order. See Sch.
Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993) (holding that the
“overwhelming weight of authority is that the failure to file documents in an
original motion or opposition does not turn the late filed documents into ‘newly
discovered evidence’” for a motion for reconsideration). Accordingly, we affirm
the district court’s grant of Baer’s motion for summary judgment and denial of
reconsideration.
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Riverwood is not entitled to attorneys’ fees on any of its claims. The
agreement expressly limited reasonable attorneys’ fees to “prevailing” parties. The
district court did not abuse its discretion when it found that neither Baer nor
Riverwood was a prevailing party under the agreement because the district court
had dismissed all of the claims and counterclaims.
Likewise, Riverwood is not entitled to attorneys’ fees pursuant to Nev. Rev.
Stat. § 17.115. The district court did not abuse its discretion by failing to award
Riverwood attorneys’ fees under Nev. Rev. Stat. § 17.115 because the district court
expressly considered each of the Beattie factors. See Beattie v. Thomas, 668 P.2d
268, 274 (Nev. 1983).
Riverwood is not entitled to attorneys’ fees pursuant to Nev. Rev.
Stat. §§ 7.085 or 18.010. The district court did not abuse its discretion when it
decided that awarding Riverwood attorneys’ fees was inappropriate because there
was “no reasonable basis for suit for breach of contract by either party in this
case,” and Riverwood’s counterclaims were equally groundless. See Nev. Rev.
Stat. §§ 7.085, 18.010 (providing that the statutes should be liberally construed in
favor of awarding attorneys’ fees, but only “in all appropriate situations”).
AFFIRMED.
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