Park West Companies, Inc. v. Amazon Const. Corp. ( 2013 )

 settlement process negotiated by the parties, and the district court held
that the auditor's findings were binding on the parties. Subsequently,
Amazon moved for summary judgment based on the binding nature of
those findings, which the district court granted. Park West now appeals.
The parties are familiar with the facts, so we do not recount them further
except as pertinent to our disposition.
This court reviews "a district court order granting summary
judgment de novo. Summary judgment is appropriate when there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. . . . [T]his court views the record in the light
most favorable to the nonmoving party." Sparks v. Alpha Tau Omega
Fraternity, Inc., 127 Nev. „ 255 P.3d 238, 242-43 (2011) (citations
and internal quotations omitted).
We conclude that summary judgment is not appropriate in
this matter for two reasons. First, the district court erred when it
determined that the auditor's findings were binding on the parties. The
district court reasoned that the parties' consent to be bound by the
auditor's findings was analogous to an agreement to submit to binding
arbitration; thus, it found that the auditor's findings were automatically
binding on Park West and Amazon. However, the settlement process
negotiated by the parties did not include an express agreement to
arbitrate and did not designate the auditor as an arbitrator. See NRS
38.209 (defining "[a]rbitrator" as "an individual appointed to render an
award, alone or with others, in a controversy that is subject to an
agreement to arbitrate"). Therefore, we conclude that the parties did not
agree to be bound by the auditor's findings as if the findings were those of
an arbitrator.
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Second, genuine issues of material fact remain as to the
proper scope of the audit, including the proper accounting method to be
used and whether all material terms of an enforceable settlement
agreement were reached. Although Amazon argues that the parties
stipulated to a valid settlement process, this court has held that "[t]o be
valid, a stipulation requires mutual assent to its terms and either a signed
writing by the party against whom the stipulation is offered or an entry
into the court minutes in the form of an order." Lehrer McGovern Bovis,
Inc. v. Bullock Insulation, Inc., 124 Nev. 1102, 1118, 197 P.3d 1032, 1042
(2008). Furthermore, in Nevada, "a court cannot compel compliance [with
a settlement agreement] when [the] material terms remain uncertain."
May v. Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005).
The record reflects that at a hearing before the district court,
Park West and Amazon did recite a settlement process, but that process
was never reduced to a signed writing or order. Further, although the
parties agreed to the appointment of an independent auditor, the
negotiated settlement process included only a general accounting
structure for the allocation of job costs, overhead costs, and profits. It did
not indicate whether particular expense items, such as payroll costs, fell
under the category of job costs or overhead costs, nor did it indicate
whether the parties intended for the auditor to use a particular accounting
method. Therefore, summary judgment is not appropriate because factual
issues remain as to the scope of the construction audit, including the
accounting methodology the auditor was to utilize, and whether, as a
result of the uncertainty of the scope of the audit, there was mutual assent
to all material terms of the settlement process.
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Accordingly, we reverse the district court's summary judgment
and remand this matter to the district court for it to determine whether an
enforceable settlement agreement was reached, and, if so, to determine
the proper scope of the construction audit, including the accounting
methodology to be utilized by the auditor.
It is so ORDERED.
Gibbons
Hardesty
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cc: Hon. Mark R. Denton, District Judge
Robert F. Saint-Aubin, Settlement Judge
Lionel Sawyer & Collins/Las Vegas
Pezzillo Lloyd
Gordon & Rees, LLP
Eighth District Court Clerk
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