United States District Court, D. Nevada
ORDER GRANTING THE DEFENDANTS' MOTIONS FOR
SUMMARY JUDGMENT (ECF NOS. 108, 110)
P. GORDON UNITED STATES DISTRICT JUDGE.
RKF Retail Holdings, LLC worked as a broker for defendant
Tropicana Las Vegas, Inc. in relation to a proposed retail
shopping mall on Tropicana's property. When things were
not proceeding as planned, Tropicana approached defendant
Eastern Real Estate, LLC about becoming a joint venture
partner with Tropicana. Shortly thereafter, Tropicana
terminated the exclusive broker agreement it had with RKF.
RKF contends Tropicana did so to deprive RKF of its
commissions and that Eastern tortiously interfered with
RKF's broker contract in order to obtain those
commissions for itself.
asserts that it terminated the agreement lawfully, both by
giving written notice and for cause because RKF failed to
inform Tropicana about interested tenants and acted
unprofessionally toward prospective tenants and their agents.
Eastern contends it did not interfere with RKF's
relationship with Tropicana because Tropicana had already
decided to terminate RKF on its own. As it turns out, Eastern
and Tropicana never agreed to a joint venture, no leases with
any prospective tenants were ever signed, and the shopping
mall was never built.
sues Tropicana for breach of the broker agreement, breach of
the covenant of good faith and fair dealing, fraudulent
inducement, fraudulent concealment, and unjust enrichment.
RKF also sues Eastern for tortious interference with
contractual relations and aiding and abetting a breach of
fiduciary duty. Tropicana and Eastern move for summary
judgment on all claims.
parties are familiar with the facts and I will not repeat
them here except where necessary for context. I grant the
judgment is appropriate if the movant shows “there is
no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a), (c). A fact is material if it “might affect the
outcome of the suit under the governing law.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue is genuine if “the evidence is such
that a reasonable jury could return a verdict for the
nonmoving party.” Id.
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and
identifying those portions of the record that demonstrate the
absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden
then shifts to the non-moving party to set forth specific
facts demonstrating there is a genuine issue of material fact
for trial. Fairbank v. Wunderman Cato Johnson, 212
F.3d 528, 531 (9th Cir. 2000). I view the evidence and
reasonable inferences in the light most favorable to the
non-moving party. James River Ins. Co. v. Hebert Schenk,
P.C., 523 F.3d 915, 920 (9th Cir. 2008).
Breach of Contract/Breach of the Implied Covenant of Good
Nevada law, the plaintiff in a breach of contract action must
show: “(1) the existence of a valid contract, (2) a
breach by the defendant, and (3) damage as a result of the
breach.” Saini v. Int'l Game Tech., 434
F.Supp.2d 913, 919-20 (D. Nev. 2006). “The party
seeking damages has the burden of proving both the fact of
damages and the amount thereof.” Mort Wallin of
Lake Tahoe, Inc. v. Commercial Cabinet Co., 784 P.2d
954, 955 (Nev. 1989).
breach of contract claim, “compensatory damages are
awarded to make the aggrieved party whole and . . . should
place the plaintiff in the position he would have been in had
the contract not been breached.” Rd. & Highway
Builders v. N. Nev. Rebar, 284 P.3d 377, 382 (Nev. 2012)
(quotation omitted); see also Hilton Hotels Corp. v.
Butch Lewis Prods., Inc., 862 P.2d 1207, 1209 (Nev.
1993) (stating the remedy for a breach of the contractual
covenant of good faith and fair dealing “generally is
on the contract itself” (quotation omitted)).
“This includes awards for lost profits or expectancy
damages.” Rd. & Highway Builders, 284 P.3d
broker like RKF seeks to be paid for commissions under an
agreement, the broker's “right . . . to
compensation must be governed by that agreement.”
Nollner v. Thomas, 533 P.2d 478, 480-81 (Nev. 1975).
If the agreement's conditions for earning or paying a
commission are not satisfied, then the broker is not entitled
to the commission absent bad faith conduct by the other party
that prevents those conditions from being satisfied. See
Redfield v. Estate of Redfield, 692 P.2d 1294, 1296
(Nev. 1985); Bartsas Realty, Inc. v. Leverton, 409
P.2d 627, 630 (1966); Evans v. Dorman, 402 P.2d 652,
654 (Nev. 1965).
example, in Caldwell v. Consolidated Realty and
Management Company, the owner of a bar entered into an
exclusive multiple listing agreement with Consolidated Realty
and Management Company. 668 P.2d 284, 285 (Nev. 1983). The
listing agreement expired on December 14, 1979, but it
contained an extension clause requiring payment of a
commission to Consolidated if within 45 days after the
expiration date Consolidated secured the purchase of the
Id. at 285, 287. During the listing agreement's
term, Consolidated introduced a prospective buyer to the bar
owner but no agreement was reached by December 14 or within
45 days thereafter. Id. About two weeks after the
extension period ended, the buyer made a purchase offer
directly to the bar owner and the owner accepted.
sued for its commission. Id. The district court
concluded that Consolidated was entitled to a commission as
the broker who procured a ready, willing, and able buyer
during the agreement's term, even though the actual sale
took place after the agreement and its extension period
expired. Id. at 286. The Supreme Court of Nevada
reversed, concluding that because the sale did not take place
during the term of the agreement, nor was there evidence that
the buyer was “ready, willing, and able to consummate
the transaction on terms acceptable to the seller”
during the listing agreement's term, Consolidated was not
entitled to a commission. Id. at 287-88.
Tropicana and RKF entered into an “Exclusive Agency
Agreement” pursuant to which the parties agreed RKF
would have the exclusive right as broker to obtain tenants
for the proposed shopping mall. ECF No. 110-1 at 2. The
agreement had an initial one-year term starting on September
12, 2012, and thereafter continued “on a month-to-month
basis until terminated by either party giving to the other
thirty (30) days written notice . . . .” Id.
Tropicana also had the right to cancel the agreement
immediately if it chose to terminate the project, provided
that if Tropicana reinstated the project within six months,
then the agreement would automatically be reinstated for an
additional six months. Id. Additionally, Tropicana
could terminate the agreement if RKF defaulted and did not
cure the default within thirty days after Tropicana gave
notice. Id. at 4.
agreement has specific provisions relating to when RKF earns
a commission and when Tropicana must pay a commission.
Section 6 of the agreement states that RKF's commission
“shall be deemed earned upon execution of a lease by
and between [Tropicana] and Tenant (the ‘Lease')
and shall be payable by [Tropicana] to RKF as follows”:
• Fifty percent (50%) upon the execution of the Lease,
or the first construction draw, ...