IN THE SUPREME COURT OF THE STATE OF NEVADA
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`Electronically Filed
`Mar 27 2025 05:12 PM
`Elizabeth A. Brown
`Clerk of Supreme Court
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`Docket No. 90225
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`INDICATE FULL CAPTION:
`DIGITAL DESERT BP, LLC, a Nevada
`limited liability company,
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`Appellant,
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`v.
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`MEDSPA ACADEMIES, LLC, a Utah
`limited
`liability company, D/B/A
`NATIONAL
`INSTITUTE
`OF
`MODERN AESTHETICS,
`
`Respondent.
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`DOCKETING STATEMENT CIVIL APPEALS
`
`GENERAL INFORMATION
`Appellants must complete this docketing statement in compliance with Nevada
`Rules of Appellate Procedure (NRAP) 14(a). The purpose of the docketing
`statement is to assist the Supreme Court in screening jurisdiction, identifying issues
`on appeal, assessing assignment to the Court of Appeals under NRAP 17,
`scheduling cases for oral argument and settlement conferences, classifying cases for
`expedited treatment, and compiling statistical information.
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`WARNING
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`This statement must be completed fully, accurately, and on time. NRAP 14(c). The
`Supreme Court may impose sanctions on counsel or the appellant if it appears that
`the information provided is incomplete or inaccurate. Id. Failure to fill out the
`statement completely or to file it in a timely manner constitutes grounds for the
`imposition of sanctions, including a fine and/or dismissal of the appeal. Id.
`
`A complete list of the documents that must be attached appears as Question 28 on
`this docketing statement. Failure to attach all required documents will result in the
`delay of your appeal and may result in the imposition of sanctions. Id.
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`Last updated 08/2024
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`Docket 90225 Document 2025-14048
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`This court has noted that when obligations under NRAP 14 to complete the
`docketing statement properly and conscientiously are not taken seriously, valuable
`judicial resources of this court are wasted, making the imposition of sanctions
`appropriate. See KDI Sylvan Pools v. Workman, 107 Nev. 340, 344, 810 P.2d 1217,
`1220 (1991). Please use divider pages to separate any attached documents.
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`1. Judicial District: Eighth County: Clark
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`Judge: Honorable Joe Hardy, Jr. District Ct. Case No.: A-23-867374-B
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`Department: 15
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`2. Person filing this docketing statement:
`Joseph G. Went
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` Bar # 9220
`David J. Freeman
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`
` Bar # 10045
`Holland & Hart LLP
`9555 Hillwood Drive, 2nd Floor
`(702) 222-2500
`jgwent@hollandhart.com and dfreeman@hollandhart.com
`Client name(s) (if represented by counsel): Digital Desert BP, LLC
`If this is a joint statement by multiple appellants, add the
`names and addresses of the other appellants and, if applicable,
`the names of their counsel and have them sign the certification
`below.
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`Client name(s) (if represented by counsel):
`I certify I concur in the filing of this statement.
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`3. Nature of disposition below (check all that apply):
` Judgment after bench trial
` Judgment after jury verdict
` Summary judgment
` Default judgment
` Grant/Denial of NRCP 60(b) relief
` Grant/Denial of injunction
` Dismissal:
` Lack of jurisdiction
` Failure to state a claim
` Failure to prosecute
` Other (specify):
` Divorce Decree:
` Original
` Modification
` Grant/Denial of declaratory relief
` Review of agency determination
` Other disposition (specify): _______________
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`4. Does this appeal raise issues concerning any of the following?
`.Child Custody
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` Venue
` Termination of parental rights
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`5. Pending and prior proceedings in this court. List the case name and docket
`number of all appeals or original proceedings presently or previously pending
`before this court which are related to this appeal:
`N/A
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`6. Pending and prior proceedings in other courts. List the case name, number
`and court of all pending and prior proceedings in other courts which are related
`to this appeal (e.g., bankruptcy, consolidated or bifurcated proceedings) and
`their dates of disposition:
`N/A
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`7. Nature of the action. Briefly describe the nature of the action and the result
`below:
`Appellant is the owner of a building (the “Building”) consisting of
`approximately 100,510 rentable square feet located at 6111 S. Buffalo
`Drive in Las Vegas, Nevada 89113, Clark County. On or about August 10,
`2021, Appellant and Respondent entered into a Lease Agreement
`(“Lease”) whereby Respondent agreed to rent a certain portion of the
`Building. Respondent initated this lawsuit to resolve a dispute between the
`parties regarding the proper interpretation and application of the Lease,
`including the application of a rent abatement provision. Respondent later
`amended its Complaint to resolve disputes related to the proper method of
`Expense Excess and Tax Excess reconciliations and the installation of an
`HVAC system. Appellant filed a Counterclaim to resolve a dispute
`regardng overusage of certain parking allowances.
`On October 15, 2024, Respondent filed a Motion for Partial Summary
`Judgment seeking an order declaring (1) the initial term of the Lease
`commenced on December 8, 2022, which triggered the abatement period
`as of the same date, (2) Respondent's payment of rent under protest
`during the abatement period should be reimbursed, (3) prejudgment
`interest should accrue from the dates such rent payments were made, and
`(4) recovery of its attorney fees and costs (the “Motion”). On October 30,
`2024, Digital Desert filed an Opposition to the Motion and a
`Countermotion for Partial Summary Judgment (the “Countermotion”)
`seeking an order declaring the intial term of the Lease commenced no
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`later than April 1, 2022 and, as a result, Respondent's payments made
`under protest were due under the Lease.
`On November 19, 2024, NIMA filed an Opposition to the Countermotion
`and Reply in support of the Motion. On November 26, 2024, Digital
`Desert filed a Reply in support of the Countermotion.
`The Court held a hearing on December 5, 2024 and, after hearing the
`arguments of counsel, took the Motion and Countermotion under
`advisement.
`On December 19, 2024, the Court issued a minute order in which it
`granted Motion "for all of the reasons in the Motion and Reply" and
`directed Respondent's counsel to prepare the written order. After meeting
`and conferring, competing orders were submitted by the parties for the
`Court’s consideration.
` On January 28, 2025, the Honorable Joe Hardy, Jr. signed and entered
`the order submitted by Respondent (the “Order”) from which this appeal
`is taken, wherein the Court found the leased premises were “Ready for
`Delivery” when (1) Respondent’s architect issued its certificate of
`substantial completion for Respondent’s tenant’s improvements and (2)
`the Certificate of Occupancy was issued.
`Based on these findings, the Court concluded (1) the actual
`Commencement Date was December 8, 2022 and, therefore, the rent
`abatement period ran from December 8, 2022 through October 7, 2023,
`thus, the Default Notice sent by Appellant in March 2023 constituted a
`breach of the Lease, entitling Respondent to reimbursement of 10-months
`of rent it paid under protest ($635,967.26), (2) Respondent is entitled to its
`attorney fees as the “prevailing party” under the Lease, and (3)
`Respondent is entitled to accure prejudgment interest at 18%.
`On February 11, 2025, Appellant timely filed a Motion for
`Reconsideration of the Order, which is currently set to be heard by the
`Court on April 2, 2025.
`While, at first glance, the Order does not appear to be a final, appealable
`judgment because it does not dispose of any claim or counterclaim in full,
`it does make a “prevailing party” determination and awarded
`prejudgment interest, which suggested the Court intended the Order to be
`a final judgment. Thus, on Feburary 27, 2025, Appellant filed the Notice
`of Appeal out of an abundance of caution to preserve its appellate rights.
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`Last updated 08/2024
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`8. Issues on appeal. State concisely the principal issue(s) in this appeal:
`(1) Whether the Court erred in its interpretation of the Lease that the
`actual Commencement Date was December 8, 2022 and, thus, the Default
`Notice sent by Appellant in March 2023 constituted a breach of the Lease,
`requiring Appellant to reimburse Respondent for 10-months of rent it
`paid under protest ($635,967.26);
`(2) Whether the Court erred in determining Respondent was a “prevailing
`party” under the Lease when there are still numerous claims and a
`counterclaim that have yet to be adjudicated in the underlying case; and
`(3) Whether the Court erred in its interpretation of the Lease that the
`Lease Interest Rate of 18% applied to Respondent's prejudgment interest
`calculation.
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`9. Pending proceedings in this court raising the same or similar issues. If you
`are aware of any proceedings presently pending before this court which raises
`the same or similar issues raised in this appeal, list the case name and docket
`numbers and identify the same or similar issue raised:
`Appellant is not aware of any current appeals that raise the same or
`similar issues.
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`10. Constitutional issues: Does this appeal challenge the constitutionality of a
`Nevada Statute or ordinance?
` No. Continue to #11.
` Yes:
`a. Identify the Nevada statute or ordinance being
`challenged:
`b. Is the State, any State agency, or a State officer or
`employee a party to this appeal in an official capacity?
`Yes
` No.
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`Last updated 08/2024
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`11. Other issues.
`a. Does this appeal involve any of the following issues?
` Reversal of well-settled Nevada precedent (identify the case(s))
` An issue arising under the United States and/or Nevada Constitutions
` A substantial issue of first impression
` An issue of public policy
` An issue where en banc consideration is necessary to maintain uniformity
`of this court's decisions
` A ballot question
`b. If so, explain:
`12. Assignment to the Court of Appeals or retention in the Supreme Court.
`Briefly set forth whether the matter is retained by the Supreme Court or
`presumptively assigned to the Court of Appeals under NRAP 17, and cite the
`subparagraph(s) of the Rule under which the matter falls.
`This appeal is presumptively retained by the Supreme Court under NRAP
`17(a)(9) because this case originated in business court.
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`13. Trial. If this action proceeded to trial, how many days did the trial last? N/A
`days.
`Was it a:
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`14. Judicial Disqualification. Do you intend to file a motion to disqualify or have
`a justice/judge recuse him/herself from participation in this appeal? See NRAP
`35. If so, which Justice/Judge? No.
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` bench trial
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` jury trial?
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`15. Oral argument. Would you object to submission of this appeal for disposition
` Yes
`without oral argument?
` No
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`TIMELINESS OF NOTICE OF APPEAL
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`16. Date the written judgment(s) or order(s) appealed from was/were filed in the
`district court: January 28, 2025
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`If no written judgment or order has been filed in the district court, explain
`the basis for seeking appellate review:
`N/A
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`17. Date written notice of entry of the judgment(s) or order(s) was/were served:
`January 28, 2025
`Was service by:
` Electronic or personal delivery
` Mail
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`18. Were any motions seeking relief under NRCP 50(b), 52(b), 59, or 60 or seeking
`rehearing or reconsideration filed in the district court either before or after the
`notice of appeal was filed? (attach a copy of the motion)
` No, continue to # 19.
` Yes:
`a. Specify the type of motion and the date the motion was filed in the
`district court (check all that apply)
` NRCP 50(b)
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`Date filed: _____________
` NRCP 52(b)
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`Date filed: _____________
` NRCP 59
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`Date filed: _____________
` NRCP 60
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`Date filed: _____________
` Rehearing/Reconsideration
`Date filed: February 11, 2025
`b. Date the motion was served: February 11, 2025
`c. How was the motion served:
` Electronic or personal delivery
` Mail
`d. Date the written order resolving the motion was filed: _____________
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`e. Date written notice of entry of the order resolving the motion was
`served: _____________
`f. Was service by:
` Electronic or personal delivery
` Mail
`19. Are there any motions other than those identified in #18 above still pending in
`the district court?
` Yes. Identify the motion and the date it was filed in the district court:
`_____________
` No.
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`20. Date the notice of appeal was filed in the district court: February 27, 2025
`If more than one party has appealed from the judgment or order, list the date
`each notice of appeal was filed and identify by name the party filing the
`notice of appeal:
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`21. Specify the statute or rule governing the time limit for filing the notice of
`appeal, e.g., NRAP 4(a) or other: NRAP 4(a)
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`SUBSTANTIVE APPEALABILITY
`22. Specify the statute or other authority granting this court jurisdiction to
`review the judgment or order appealed from:
`a.
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` NRAP 3A(b)(1)
` NRAP 3A(b)(3)
` NRAP 3A(b)(5)
` NRAP 3A(b)(7)
` NRAP 3A(b)(9)
` NRAP 3A(b)(11)
` NRS 38.205
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` NRS 703.376
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` NRAP 3A(b)(2)
` NRAP 3A(b)(4)
` NRAP 3A(b)(6)
` NRAP 3A(b)(8)
` NRAP 3A(b)(10)
` NRAP 3A(b)(12)
` NRS 233B.150
`Other (specify): _____________
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`Last updated 08/2024
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`b. Explain how each authority provides a basis for appeal from the judgment
`or order:
`While, at first glance, the Order does not appear to be a final, appealable
`judgment (because it does not dispose of any claim or counterclaim in full),
`it makes a “prevailing party” determination and awarded prejudgment
`interest, which suggested the Court intended the Order to be a final
`judgment under NRAP 3A(b)(1). Thus, Appellant filed a timely Notice of
`Appeal.
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`23. List all parties involved in the action or consolidated actions in the district court:
`a. Parties:
`MedSpa Academies, LLC a Utah limited liability company d/b/a National
`Institute of Modern Aesthetics; and
`Digital Desert BP, LLC, a Nevada limited liability company
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`b. If all parties in the district court are not parties to this appeal, explain in
`detail why those parties are not involved in this appeal, e.g., formally
`dismissed, not served, or other:
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`24. Give a brief description (3 to 5 words) of each party's separate claims,
`counterclaims, cross-claims, or third-party claims and the date of formal
`disposition of each claim.
`MedSpa Academies, LLC a Utah limited liability company d/b/a National
`Institute of Modern Aesthetics claims in Second Amended Complaint
`• Declaratory Relief
`• Breach of Contract
`• Breach of the Implied Covenant of Good Faith and Fair Dealing
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`Digital Desert BP LLC’s claims in Answer to Second Amended Complaint and
`Counterclaim
`• Breach of Contract
`• Breach of Implied Covenant of Good Faith and Fair Dealing
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`25. Did the judgment or order appealed from adjudicate ALL of the claims alleged
`below and the rights and liabilities of ALL of the parties to the action or
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`consolidated actions below?
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` Yes
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` No
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`26. If you answered "No" to question 25, complete the following:
`a. Specify the claims remaining pending below:
`MedSpa Academies, LLC a Utah limited liability company d/b/a National
`Institute of Modern Aesthetics claims in Second Amended Complaint
`• Declaratory Relief
`• Breach of Contract
`• Breach of the Implied Covenant of Good Faith and Fair Dealing
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`Digital Desert BP LLC’s claims in Answer to Second Amended
`Complaint and Counterclaim
`• Breach of Contract
`• Breach of Implied Covenant of Good Faith and Fair Dealing
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`b. Specify the parties remaining below:
`MedSpa Academies, LLC a Utah limited liability company d/b/a National
`Institute of Modern Aesthetics; and
`Digital Desert BP, LLC, a Nevada limited liability company
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`c. Did the district court certify the judgment or order appealed from as a
`final judgment pursuant to NRCP 54(b)?
` Yes
` No
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`d. Did the district court make an express determination, pursuant to NRCP
`54(b), that there is no just reason for delay and an express direction for
`the entry of judgment?
` Yes
` No
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`27. If you answered "No" to any part of question 26, explain the basis for seeking
`appellate review (e.g., order is independently appealable under NRAP 3A(b)):
`While, at first glance, the Order does not appear to be a final,
`appealable judgment (because it does not dispose of any claim or
`counterclaim in full), it makes a “prevailing party” determination
`and awarded prejudgment interest, which suggested the Court
`intended the Order to be a final judgment under NRAP 3A(b)(1).
`Thus, Appellant filed a timely Notice of Appeal.
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`28. Attach file-stamped copies of the following documents:
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`• The latest-filed complaint, counterclaims, cross-claims, and third-party claims
`• Any motion(s) identified in questions 18 and the order(s) resolving the
`motion(s)
`• Any motions identified in question 19
`• Orders or NRCP 41(a)(1) dismissals that formally resolve each claim,
`counterclaim, cross- claim and/or third-party claim asserted in the action or
`consolidated action below, even if not at issue on appeal
`• All orders that finally disposes of any parties in the action below, even if not
`at issue on appeal
`• Any other order challenged on appeal
`• Notices of entry for each attached order
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`VERIFICATION
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`I declare under penalty of perjury that I have read this docketing statement,
`that the information provided in this docketing statement is true and
`complete to the best of my knowledge, information, and belief, and that I have
`attached all required documents to this docketing statement.
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` /s/ David J. Freeman
`David J. Freeman
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`03/27/2025
`Date
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`State of Nevada, County of Clark
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`CERTIFICATE OF SERVICE
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`I certify that on the 27th day of March, 2025, I served a copy of this completed
`docketing statement upon all parties to this appeal:
` by electronic means to registered users of the court’s electronic
`filing system
`Timothy O. Hemming, Esq., Dentons Durham Jones Pinegar P.C.,
`192 East 200 North, 3rd Floor, St. George, UT 84770
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`Michael D. Rawlins, Esq., Michael D. Rawlins, PLLC, 3271 E.
`Warm Springs Rd., Las Vegas, NV 89120
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` by personally serving it upon him/her;
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` by mailing it by first class mail with sufficient postage prepaid to the
`following address(es):
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`/s/ Kristina R. Cole
` Kristina R. Cole
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`Holland & Hart LLP
`9555 Hillwood Drive, 2nd Floor, Las Vegas, NV 89134
`(702) 669-4600
`krcole@hollandhart.com
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`03/27/2025
`Date
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`34498714_v3
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`Last updated 08/2024
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`EXHIBIT 1
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`Plaintiff’s Second Amended Complaint
`filed 10/14/2024
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`FILED UNDER SEAL
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`EXHIBIT 1
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`EXHIBIT 2
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`Plaintiff’s Second Amended Complaint
`filed 10/14/2024
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`EXHIBIT 2
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`SAC
`Timothy O. Hemming, Esq.
`Nevada Bar No. 14375
`DENTONS DURHAM JONES PINEGAR P.C.
`192 East 200 North, 3rd Floor
`St. George, UT 84770
`Telephone: 435.674.0400
`Facsimile: 435.628.1610
`tim.hemming@dentons.com
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`Michael D. Rawlins, Esq.
`Nevada Bar No. 5467
`MICHAEL D. RAWLINS, PLLC
`3271 E. Warm Springs Rd.
`Las Vegas, NV 89120
`Telephone: 702.832.1670
`Facsimile: 702.979.3723
`michael@rawlins.law
`Attorneys for Plaintiff
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`DISTRICT COURT
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`CLARK COUNTY, NEVADA
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`MEDSPA ACADEMIES, LLC, a Utah limited
`liability company, D/B/A NATIONAL INSTITUTE
`OF MODERN AESTHETICS,
`
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`vs.
`
`
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`DIGITAL DESERT BP, LLC, a Nevada limited
`liability company,
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`
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`Plaintiff,
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`Case No.: A-23-867374-B
`Dept. No.: XXVII
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`SECOND AMENDED COMPLAINT
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` (Request for Business Court Assignment)
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`(Exempt from Arbitration: Action for
`Declaratory Relief)
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`Defendant.
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`Plaintiff Medspa Academies, LLC, d/b/a National Institute of Modern Aesthetics
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`(“Tenant”) complains against Defendant Digital Desert BP, LLC (“Landlord”) and alleges as
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`follows:
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`THE PARTIES
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`1.
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`Tenant is a Utah limited liability company, doing business in Clark County, Nevada.
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`Case Number: A-23-867374-B
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`Electronically Filed
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`10/14/2024 5:51 PM
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`Steven D. Grierson
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`CLERK OF THE COURT
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`2.
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`Landlord is a Nevada limited liability company, doing business in Clark County,
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`Nevada.
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`JURISDICTION AND VENUE
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`3.
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`Pursuant to the parties’ Lease, defined below, Landlord agreed that the sole and
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`exclusive venue for litigation shall be in either the state or federal courts in Clark County, Nevada,
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`and Landlord expressly consented to jurisdiction therein. See Lease, § 41.7.
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`4.
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`5.
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`The real property at issue in this lawsuit is located in Clark County, Nevada.
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`This Court has jurisdiction over Landlord with respect to the matters at issue in this
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`lawsuit and venue is proper.
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`GENERAL ALLEGATIONS
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`6.
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`7.
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`Tenant is an education company that trains students in aesthetics and cosmetics.
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`On information and belief, Landlord is the owner of a building (the “Building”)
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`consisting of approximately 100,510 rentable square feet located at 6111 S. Buffalo Drive in Las
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`Vegas, Nevada 89113, Clark County Assessor’s Parcel Number 163-33-715-009.
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`8.
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`On or about August 10, 2021 (the “Effective Date”), Landlord and Medspa
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`Academies, Inc., a Utah corporation, the predecessor by conversion to Tenant, entered into a Lease
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`Agreement (“Lease”), by which Tenant agreed to rent a portion of the Building, defined in the Lease
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`as: “That certain space in the Building consisting of approximately 8,266 square feet on the ground
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`floor, and approximately 13,807 square feet located on the second floor of the Building, for a total
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`of approximately 22,073 square feet” (the “Premises”). A copy of the Lease is attached as Exhibit
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`1.
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`9.
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`Tenant brings this action as the tenant under the Lease and as the guarantor under the
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`Guaranty attached to the Lease, both drafted by Landlord with very little input or negotiation by
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`Tenant.
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`The Commencement Date of the Lease
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`10.
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`At the time the Lease was executed, the Building was early in the process of being
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`constructed by Landlord (“Landlord’s Work”). As a result, the parties agreed that the initial term of
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`28 the Lease (“Term”) would commence on a future “CommencementDate.”
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`the Premises to begin Tenant’s Work until on or aboutthat date.
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`“Delivery Date,” with a
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`extending from the Delivery Date
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`. See Lease, §§ 1.3(b), 1.4(a), 1.4(f), 4.1, and
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`14.
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`Initially, the Lease provides that the Delivery Date “shall be the earlier to occur of
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`Tenant’s actual occupancy of the Premises or
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`’ See Lease, § 3.1.
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`11.
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`The parties further agreed that Tenant would perform a tenant build-out of the
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`Premises (“Tenant’s Work’), with the Lease specifically allowing for a “pre-term” period priorto
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`the Commencement Date in which Tenant could perform Tenant’s Work while Landlord was
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`12.
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`Significantly,
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`the parties also agreed that, “Tenant shall diligently pursue and
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`complete Tenant’s Work with the goal of occupying the space withini days of the Effective
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`Date of the Lease,” or February 6, 2022. See Lease § 3.1 (emphasis added). Thus, the express
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`intent of the parties was that both Landlord’s Work and Tenant’s Work would be completed,
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`and Tenant would be able to legally occupy and commence business operations from the
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`Premises, b
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`Unfortunately, Landlord did not even permit Tenantto first enter
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`13.
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`The Lease did not
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`identify in advance a particular calendar date as the
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`Commencement Date of the Lease. Instead, the Lease defines the Commencement Date as the
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`15.|However, recognizing the uncertain timing of (a) the completion of Landlord’s Work
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`and Tenant’s Work, and (b) the receipt of the requisite governmental permission to occupy the
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`Premises, the parties set an “Estimated Delivery Date”
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`after the Effective Date, or
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`P| (that is, the same date as the date on which Tenantwasto be able to occupy and
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`commence business operations from the Premises, as set forth above), and agreed as follows
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`this Lease to the contrary, if the Premises are not Ready for Delivery on or before the
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`Estimated Delivery Date, the Commencement Date shall be delayed, and
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`1.3(c) and 3.2 (emphasis added).
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`16.
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`By way of explanation of the phrase “Ready for Delivery” used in the Lease, the
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`parties providedin the “Work Letter Agreement” attached to the Lease a description of Landlord’s
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`Work that Landlord was to perform “prior to or on the [Estimated] Delivery Date,” and agreed
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`that, “For all purposes herein, Landlord’s Workshall be deemed substantially completed when
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`(ii) Landlord has
`provided reasonable access to the Premises to Tenant,
`i) Landlord has
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`. See Lease §§
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`28 (hereinafter referred to as the “Controlling Language”): “Notwithstanding any other provision of
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`completed Landlord’s Work other than details of construction which do not materiall
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`interfere with Tenant’s use of the Premises, and (iii) Landlord has obtained a tempora
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`certificate of occupancy for the Premises (or its equivalent).” See Lease, Exhibit A, Schedule
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`1(1)(@i) and Exhibit A (C)(1) (emphasis added). The second and third of these three elements,
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`Landlord’s completion of Landlord’s Work, and Landlord obtaining a certificate of occupancy for
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`the Premises, are briefly discussed in turn below in reference to the Estimated Delivery Date.
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`Landlord’s Completion of Landlord’s Work
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`17.
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`As of the Estimated Delivery Date ofFY Landlord’s Work was
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`nowhere near completion. Indeed, the Clark County Building Department did not issue a certificate
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`ofcompletion for Landlord’s Work until October 18, 2022,FY
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`Landlord’s Obtaining Certificate of Occupancy for the Premises
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`18.
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`In Clark County, tenant build-outs such as Tenant’s Work within a shell building are
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`not permitted to receive a final building inspection or any type of occupancyauthorization, including
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`a certificate of occupancy, until the shell building itself has first recerved approval for the final
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`building
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`inspection
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`and
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`has
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`been’
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`granted
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`a_
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`certificate
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`of
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`completion.
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`See
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`https://www.clarkcountynv.gov/government/departments/building_fire_prevention/inspection/tc
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`28 0cooccupancy.php. Therefore, unless and until Landlord obtained a certificate of completion for
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`for Delivery on or before the Estimated Delivery Date, the CommencementDate shall be delayed,
`and
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`December8, 2022, the date on which the certificate of occupancy for the Premises was issued. The
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`issuance of the certificate of occupancy followed closely after the issuance of the certificate of
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`Landlord’s Work,no certificate of occupancy could be obtained for the Premises.
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`19.
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`Dueto (a) the many months of delay in Landlord’s completion of Landlord’s Work,
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`(b) the resulting delay in the delivery of the Premises to Tenant to perform Tenant’s Work, and (c)
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`the many substantive change orders made by Landlord to Landlord’s Work that directly and
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`adversely affected and delayed Tenant’s Work, Tenant’s build-out of the tenant improvements for
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`the Premises was severely delayed and disrupted.
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`20.
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`Asa direct result of such severe delay and disruption, a certificate of occupancy for
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`the Premises wasnot obtained until December 8, 2022,
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`|| Although, as set forth above, the Work Letter Agreement requires Landlord to obtain “a
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`temporary certificate of occupancy for the Premises (or its equivalent)” as a condition precedent to
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`substantial completion of Landlord’s Work, Landlord, in default of the Lease, failed to perform this
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`obligation and did not obtain a temporary orany othercertificate of occupancyor its equivalent for
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`the Premises at any time. Instead, it was Tenant that obtained the certificate of occupancy for the
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`Premises, and, by doing so, itself satisfied this condition precedent to substantial completion of
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`Landlord’s Work on December8, 2022.
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`The Actual Commencement Date
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`21.
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`As discussed in the preceding paragraphs, Landlord’s Work wasnot substantially
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`completed on or before the Estimated Delivery Date ofFY and, as a result, the
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`Premises were not Ready for Delivery on or before that date.
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`22.
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`Thus,asset forth above in the Controlling Language,“if the Premises are not Ready
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`” See Lease § 3.2 (emphasis added).
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`23.
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`The “actual” Commencement Date under the Lease should be no sooner than
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`Damages Caused by Landlord’s Delays
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`25.
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` Asaresult of Landlord’s Delays, Tenant was forced to continue its operations at a
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`separate facility located at the Howard Hughes Center (3753-3993 Howard Hughes Center Dr., Las
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`Vegas, NV 89169) (“Howard HughesFacility”) and pay exorbitant holdoverrent.
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`26.
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`Moreover, the Howard HughesFacility is a physically smaller location than the
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`condition precedentto the issuance ofthe certificate of occupancy.
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`If the Commencement Date is December 8, 2022,
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`28 completion for Landlord’s Work, which certificate of completion was a governmentally-required
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`Premises and, as a result ofthe size limitations, Tenant was forced to limit its student population and
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`turn away prospective students, thereby losing income from tuition revenue that it otherwise would
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`have received if the Commencement Date had not been delayed.
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`27.
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`In addition to receiving tuition revenue, Tenant also receives revenue from spa
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`services that it provides to customers, which, due to the limitations posed by the Howard Hughes
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`Facility, was substantially lower in 2022 and 2023 than it would have been had the Commencement
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`Date not been delayed. In particular, the Howard HughesFacility offered 6 spa treatment rooms,
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`whereas the Premises offer 30 spa treatment rooms.
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`28.
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`Tenant also offers continuing education courses to licensed individuals and receives
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`revenue therefrom. The Howard HughesFacility did not provide sufficient space to offer many of
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`these courses. For the courses that were offered at the Howard HughesFacility, due to its size
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`limitations, the number of individuals that were enrolled in courses was limited in comparisonto the
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`numberof individuals that could have been enrolled in courses held at the Premises. As a result,
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`revenue from Tenant’s continuing education courses was substantially lower in 2022 and 2023 than
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`it would have been had the Commencement Date not been delayed.
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`29.
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`Also, the failure of Landlord to have completed the floors, walls and ceilings of the
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`commonareas outside the Premises on the second floor, including the elevator lobby, common
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`restrooms and hallways, whichare still, as of the date of this Complaint, unfinished and under
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`SL_7042659.3
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`oOOoNANDW construction (including uninstalled ceilings with wiring, lighting and other equipment hanging
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`The Wrongful Default Notice made no reference to the
`Invoice or Tenant’s
`letter mentioned in the prior paragraph, and did not in any way explain the discrepancy between the
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`- Invoice showing a balance of $0.00 six days priorto the first of the month, and then the
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`SL_7042659.3
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`down, unfinished sheetrock walls and uncovered concrete floors, all creating lots of dust and not
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`being worked on), is a violation of the Lease provision that provides that Tenant shall “peacefully
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`and quietly have, hold, and enjoy the Premises subject to the terms, covenants, conditions,
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`provisions, and agreements hereof without interference by any persons lawfully claiming by or
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`through Landlord.” See Lease § 37.
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`The Wrongful Default Notice
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`30. On] Tenant received an invoice (“March Invoice”) from Landlord
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`forEE Base Rent, showingthat Landlord hadapplied the first month’s Base Rent (“Prepaid
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`Rent”), paid by Tenant to Landlord at Lease signing in the amount of
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`to satisfy Base
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`Although Tenant did not agree with Landlord’s premature application of the Prepaid
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`Rent due underthe Lease for
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`31.
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`Rent to March,
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`leaving a s