Alter v. Resort Properties of America ( 2014 )

 breach of oral contract claim. The district court separately considered
Atwell's remaining equitable claims and found that Atwell was not
entitled to recovery pursuant to his equitable claims, denied all of Alter's
post-trial motions, and awarded Atwell prejudgment interest and attorney
fees. 1 On appeal, Alter argues as follows: (1) there was insufficient
evidence to support the verdict and the judgment, (2) the district court
erred when it entered prejudgment interest, and (3) the district court
erred when it awarded Atwell attorney fees. 2
Substantial evidence supports the jury's verdict in favor of Atwell as to
liability; however, the amount of damages awarded is not supported by the
evidence
A broker may recover a commission if he or she can show that
an employment contract existed and that he or she was the "procuring
cause" of the sale. Shell Oil Co. v. Ed Hoppe Realty Inc., 91 Nev. 576, 580,
540 P.2d 107, 109-10 (1975) (internal quotation omitted). Alter argues
that because there was no enforceable contract, Atwell was not entitled to
receive a commission and the jury's verdict was in error. This court will
not overturn a verdict "if [it is 1 supported by substantial evidence, unless,
from all the evidence presented, the verdict was clearly wrong." Ringle v.
Bruton, 120 Nev. 82, 91, 86 P.3d 1032, 1038 (2004) (internal quotation
omitted). "Substantial evidence is evidence that a reasonable mind might
1 The parties are familiar with the facts and procedural history of
this case and we do not recount them further except as necessary for our
disposition.
2Alteralso challenges the district court's ruling on his motion for
summary judgment, directed verdict, and a new trial, the district court's
failure to use his special verdict form, and the jury's verdict on his
counterclaims. After careful consideration, we conclude that Alter's
arguments on these issues lack merit.
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accept as adequate to support a conclusion." Id. (internal quotation
omitted); see also Shell Oil, 91 Nev. at 578, 540 P.2d at 108 ("If the
evidence, though conflicting, can be read to support [the verdict], this
court must approve the [trier of fact's] determinations."). Generally, for a
party to recover contract damages, the party must prove an enforceable
contract with offer, acceptance, mutual assent, and consideration. May v.
Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005). Alter argues
that there was no enforceable contract with Atwell because the contractual
terms were indefinite, there was not mutual assent, and there was no
consideration.
Contractual terms
"A valid contract cannot exist when material terms are lacking
or are insufficiently certain and definite" May, 121 Nev. at 672, 119 P.3d
at 1257. The terms must be definite enough for the court "to ascertain
what is required of the respective parties" and to "compel compliance." Id.
Atwell testified at trial that he and Alter orally agreed that if he helped
Alter close a deal on a hotel in Las Vegas, then he would receive a
commission from that sale. Atwell further testified that Alter told him on
more than one occasion that he would take care of Atwell if he successfully
assisted Alter in his acquisition of a Las Vegas property. From this
testimony, the trier of fact could reasonably determine that Alter and
Atwell orally agreed that Alter would pay Atwell a commission if Alter
closed a deal on a property Atwell introduced to Alter. Further, it was
reasonable for the jury to determine from Atwell's testimony that Alter
agreed to pay Atwell the difference between 2 percent and the .75 percent
that the seller of the Alexis Park originally agreed to pay Atwell. Because
the jury could reasonably ascertain what performance was required from
the parties—a commission in exchange for a successful acquisition of a Las
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Vegas property—we conclude that the terms of the oral contract were
sufficiently definite.
Mutual assent
Alter next argues that there was no mutual assent. All
parties to a contract must assent to its terms. Grisham v. Grisham, 128
Nev. , , 289 P.3d 230, 234-35 (2012). "Mutual assent is determined
under an objective standard applied to the outward manifestations or
expressions of the parties." ASP Props. Grp. v. Fard, Inc., 35 Cal. Rptr. 3d
343, 351 (Ct. App. 2005). If the outward words and acts of the parties can
reasonably be interpreted as acceptance, then mutual assent exists. Id.
For a party's conduct to be viewed as a manifestation of his assent, the
party must intend to partake in the conduct and "know[ ] or ha[ve] reason
to know that the other party may infer from his conduct that he assents."
Restatement (Second) of Contracts § 19(2) (1981).
In addition to Alter's promises to "take[ ] care of' Atwell, there
is evidence in the record that shows that Atwell also faxed Alter a letter in
which he said, "I think you know that I have tried to demonstrate my
value and I have been working for you on the 'come,' meaning that Atwell
would not receive compensation until the completion of a successful
property acquisition. After receiving the fax from Atwell, Alter met with
Atwell and discussed other potential deals on Las Vegas properties. Thus,
we conclude that sufficient evidence demonstrates the parties' mutual
assent to the oral contract.
Consideration
Finally, Alter argues that consideration does not support a
contract between him and Atwell. "Consideration is the exchange of a
promise or performance, bargained for by the parties." Jones v. SunTrust
Mortg., Inc., 128 Nev. 274 P.3d 762, 764 (2012). "Consideration is
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not adequate when it is a mere promise to perform that which the
promisor is already bound to do." Cnty. of Clark v. Bonanza No. 1, 96 Nev.
643, 650-51, 615 P.2d 939, 944 (1980). Although Atwell initially testified
that all of his actions were done because of his agreement with the Alexis
Park's seller, Atwell further testified regarding meetings he and Alter had
with other Las Vegas property owners, advice he gave to Alter, and client
introductions he made. Thus, we conclude that the evidence presented
demonstrated sufficient consideration.
Accordingly, because there was substantial evidence presented
that adequately demonstrated acceptance, mutual assent, and
consideration, we conclude that the jury could reasonably conclude that an
enforceable contract existed between Atwell and Alter. See May, 121 Nev.
at 672, 119 P.3d at 1257. Thus, we conclude that the jury's verdict in
favor of Atwell as to liability was not clearly wrong. See Ringle, 120 Nev.
at 91, 86 P.3d at 1038. However, we agree with Alter that substantial
evidence does not support the amount of damages awarded to Atwell. See
Kleeman v. Zigtema, 95 Nev. 285, 287, 593 P.2d 468, 469 (1979) (stating
that a judgment must be supported by substantial evidence).
Atwell testified that he entered into negotiations with the
sellers of the Alexis Park Hotel for a commission fee of 2 percent of the
hotel's sale price, but that he ultimately signed an agreement with the
sellers that stated that he would receive a .75 percent commission. Atwell
further testified that he thought Alter understood that his commission fee
was 2 percent. However, when asked whether he told Alter that he
expected a 2 percent commission or whether Alter told him that he would
"make the difference up," Atwell testified that "[he and Alter] never got
that far." Rather, Atwell testified, that based on his relationship with
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Alter, he felt that Alter would take care of him by "mak[ing] the difference
up" between his stated 2 percent commission and the .75 percent
commission the sellers agreed to pay. Atwell also testified that if the
Alexis Park Hotel had agreed to pay him 2 percent then he probably would
not have asked Alter, as the buyer, to make up the difference.
At the conclusion of the trial, the jury awarded Atwell $1.5
million in damages, representing 2 percent of the total $75 million selling
price of the Alexis Park Hotel. We conclude that the amount of damages
awarded is belied by Atwell's own testimony, and there was no other
evidence presented to demonstrate that Alter was responsible for paying
more than the remaining 1.25 percent of Atwell's 2 percent commission fee
for the sale of the Alexis Park Hotel. Accordingly, we reverse that portion
of the district court's judgment and remand this matter to the district
court with instructions for it to recalculate the amount of damages
awarded to Atwell as 1.25 percent of the sale price of the Alexis Park
Hotel.
The district court erred in awarding prejudgment interest
Alter argues that the district court erred in awarding
prejudgment interest because the damages amount was not ascertainable.
Atwell argues that the sum of money was definite based on his testimony
that Alter understood that his commission fee was 2 percent. This court
reviews a district court's award of prejudgment interest for an abuse of
discretion. M.G. Multi-Family Dev., L.L.C. v. Crestdale Assocs., Ltd., 124
Nev. 901, 916, 193 P.3d 536, 546 (2008).
"Three items must be determined to enable the trial court to
make an appropriate award of interest: (1) the rate of interest; (2) the time
when it commences to run; and (3) the amount of money to which the rate
of interest must be applied." Paradise Homes, Inc. v. Cent. Sur. & Ins.
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Corp., 84 Nev. 109, 116, 437 P.2d 78, 83 (1968). When a district court is
awarding prejudgment interest in a breach of contract action
Nile amount of money to which the interest rate
will be applied must be determined by the
following factors: (1) if the contract breached
provides for a definite sum of money, that sum; (2)
if the performance called for in the contract, the
value of which is stated in money or is
ascertainable by mathematical calculation from a
standard fixed in the contract or from established
market prices of the subject matter, that sum.
Pre-judgment interest shall be allowed on the
amount of the debt or money value so determined,
after making all the deductions to which the
defendant may be entitled.
Id. at 116-17, 437 P.2d at 83.
Here, the parties' oral contract did not provide for a definite
sum of money due to Atwell. Thus, the amount of money due "was neither
definite nor readily ascertainable until judgment." MC. Multi-Family,
124 Nev. at 917, 193 P.3d at 547 (affirming the district court's refusal to
award prejudgment interest because a "definite amount of money" was not
owed under the contract) (internal quotations omitted)). Likewise, the
value of Atwell's performance was not "ascertainable by mathematical
calculation from a standard fixed in the contract or from established
market prices." Paradise Homes, 84 Nev. at 116, 437 P.2d at 83. As such,
we conclude that the district court abused its discretion by improperly
awarding Atwell prejudgment interest, and we reverse that portion of the
judgment awarding prejudgment interest.
The district court abused its discretion when it awarded attorney fees
When an offer of judgment has been properly made, the
district court may order a party to pay attorney fees "[i]f the offeree rejects
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an offer and fails to obtain a more favorable judgment." NRCP 68(f).
Before awarding attorney fees,
the trial court must carefully evaluate the
following factors: (1) whether the plaintiffs claim
was brought in good faith; (2) whether the
defendants' offer of judgment was reasonable and
in good faith in both its timing and amount; (3)
• whether the plaintiffs decision to reject the offer
and proceed to trial was grossly unreasonable or
in bad faith; and (4) whether the fees sought by
the offeror are reasonable and justified in amount.
Beattie v. Thomas, 99 Nev. 579, 588-89, 668 P.2d 268, 274 (1983). The
district court may award some or all of the attorney fees requested, if
warranted and after careful consideration of these factors. Id. at 589, 668
P.2d at 274. But the district court abuses its discretion if it awards the
full amount of fees requested without considering these factors or making
any "findings based on evidence that the attorney[ I fees sought are
reasonable and justified." Id. Even when awarding attorney fees less
than the amount originally requested, district courts are still required to
memorialize their analysis of the Beattie factors. See Schwartz V. Estate of
Greenspun, 110 Nev. 1042, 1050, 881 P.2d 638, 643 (1994) (affirming an
award of attorney fees even though the district court did not make
"express findings" on the Beattie factors because the record demonstrated
that "the district court judge did consider the Beattie factors," but
cautioning the court that written support of its analysis is necessary for
proper appellate review).
Although the district court in this case generally cited Beattie,
it did not discuss any of the Beattie factors or express any rationale for
awarding attorney fees to Atwell. As a result, we conclude that the
district court abused its discretion when it arbitrarily awarded attorney
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fees to Atwell without first conducting a proper analysis under the Beattie
factors. Thus, we reverse that portion of its judgment awarding attorney
fees. See Schouweiler u. Yancey Co., 101 Nev. 827, 833, 712 P.2d 786, 790
(1985) (stating that this court will not reverse a district court's award of
attorney fees "[u]nless the trial court's exercise of discretion is arbitrary or
capricious"); see also Yamaha Motor Co., U.S.A. u. Arnoult, 114 Nev. 233,
252, 955 P.2d 661, 673 (1998) (reversing the district court's award of
attorney fees for failure weigh the Beattie factors appropriately). On
remand, the district court is instructed to re-evaluate whether attorney
fees should be awarded after careful consideration of the Beattie factors. 3
For the reasons set forth above, we ORDER the judgment of
the district court AFFIRMED IN PART AND REVERSED IN PART AND
REMAND this matter to the district court with instructions for it to
conduct further proceedings consistent with this order.
Hardesty
J.
Douglas
J.
Cherry
3 Alter
also argues that the court abused its discretion in denying his
motion to alter or amend the judgment. Because we reverse and remand
the judgment on other grounds, we decline to address Alter's argument on
this issue.
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cc: Hon. David B. Barker, District Judge
Thomas J. Tanksley, Settlement Judge
Morris Law Group
Kemp, Jones & Coulthard, LLP
Eighth District Court Clerk
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