United States District Court, D. Nevada
HEATHER ATWELL; HEATHER ATWELL as TRUSTEE of Atwell Family Trust; HEATHER ATWELL as ADMINISTRATOR of the Estate of David Atwell; and RESORT PROPERTIES OF AMERICA, INC., Plaintiffs,
WESTGATE RESORTS, INC.; WESTGATE RESORTS LTD.; CENTRAL FLORIDA INVESTMENTS, INC.; and WESTGATE LAS VEGAS RESORT, Defendants.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
this Court are Defendants Westgate Resorts, Inc., Westgate
Resorts Ltd., Central Florida Investments, Inc., and Westgate
Las Vegas Resort (collectively, “Defendants”)
Motion for Summary Judgment (ECF No. 60), and Plaintiffs
Heather Atwell, Heather Atwell as Trustee of Atwell Family
Trust, Heather Atwell as Administrator of the Estate of David
Atwell, and Resort Properties of America, Inc.
“Plaintiffs”)' Motion for Partial Summary
Judgment (ECF No. 64). For the reasons stated below, these
motions are denied.
original filed the Complaint with Jury Demand in the Eighth
Judicial District Court of Clark County, Nevada on October 6,
2015. (ECF No. 1-1). Defendants removed the case on November
5, 2015, on the grounds of diversity jurisdiction. (ECF No.
1). Plaintiffs made a jury demand in this Court on November
23, 2015. (ECF No. 16). The Court had a hearing on
Defendants' Motion to Dismiss for Lack of Jurisdiction on
September 22, 2016, where the motion was granted in part and
denied in part. (ECF No. 46). During the hearing, the Court
granted Plaintiffs leave to amend the Complaint.
filed an Amended Complaint with Jury Demand on November 18,
2016. (ECF No. 49). In the Amended Complaint, Plaintiffs
assert the following causes of action: count I -breach of
contract, on behalf of all Plaintiffs except Heather Atwell
individually; count II - breach of the implied covenant of
good faith and fair dealing, on behalf of all Plaintiffs
except Heather Atwell individually; count III - quantum
meruit, on behalf of all Plaintiffs except Heather Atwell
individually; count IV - quantum meruit, on behalf of Heather
Atwell individually; count V - fraud, on behalf of all
Plaintiffs except Heather Atwell individually; and count VI -
fraud, on behalf of Heather Atwell individually. Defendants
filed Answers on December 19, 2016. (ECF Nos. 52, 53, 54,
55). On April 21, 2017, Defendants filed a Motion for Summary
Judgment. (ECF No. 60). Plaintiffs also filed a Motion for
Summary Judgment on April 21, 2017. (ECF No. 64). Responses
were filed on May 19, 2017. (ECF Nos. 72, 73). Plaintiffs
filed their Reply on June 9, 2017. (ECF No. 77). Defendants
also filed a Reply on June 9, 2017. (ECF No. 78). The Court
held a hearing on the motions on March 21, 2018, and took the
matter under submission.
Court finds the following facts to be undisputed.
Heather Atwell (“Ms. Atwell”) is a licensed real
estate agent in the State of Nevada, and was a licensed real
estate agent at certain periods relevant to the facts at
issue. Ms. Atwell is also the Trustee of Plaintiff the Atwell
Family Trust and the Administrator of Plaintiff the Estate of
David Atwell. Ms. Atwell's father, David Atwell
(“Mr. Atwell”), was a licensed Las Vegas real
estate broker who specialized in hotel and casino properties
in Las Vegas. Mr. Atwell operated a sole proprietorship that
did business under the name “Resort Properties of
America” until March 13, 2013. On June 24, 2008, Ms.
Atwell began working alongside Mr. Atwell in rendering
brokerage services at his sole proprietorship, by associating
her real estate agent's license with Mr. Atwell's
real estate broker's license, and continued to work in
association with RPA until Mr. Atwell's death on November
incorporated on March 13, 2013 in the State of Nevada. RPA as
a corporate entity is a Plaintiff in this suit. Ms. Atwell is
the current sole officer, director, and shareholder of
Plaintiff Resort Properties of America, Inc.
Central Florida Investments, Inc. (“CFI”) is the
parent company of the other Defendants in this action,
Westgate Resorts, Inc., Westgate Resorts, Ltd., and Westgate
Las Vegas Resorts, LLC. David Siegel (“Siegel”)
is the founder, president, and sole shareholder of CFI. Due
to this structure, regardless of which Westgate entity is
involved, all actions allegedly taken by any Defendant are
attributed to CFI.
Prior Relationship Between Mr. Atwell and Siegel
Atwell had known Siegel for over 20 years prior to the events
at issue in this litigation. Mr. Atwell assisted Defendants
in an attempt to procure financing to prevent the foreclosure
of the former Planet Hollywood Westgate Tower (“PH
Tower”) in 2011. Defendants were unsuccessful in
keeping the former PH Tower, which they ultimately lost to
their creditors in November 2011. PH Tower was the only
Westgate-affiliated property in Las Vegas until 2014.
Mr. Atwell's Initial Efforts to Find a Property for
September 2011, Mr. Atwell spoke by phone with Adam Rosenberg
(“Rosenberg”), then Global Head of Gaming at
Goldman, Sachs & Co, regarding the Las Vegas Hilton
(“LVH”). Mr. Atwell and Rosenberg exchanged
emails regarding the discussion. Rosenberg stated that
Goldman Sachs was a 70% owner of the debt attached to the
LVH, and that “[if] there [was] a real buyer with real
interest, [he was] the right portal to explore what can be
done.” In these emails, Mr. Atwell wrote that his
client was David Siegel of Westgate Resorts.
January 17, 2012, Mr. Atwell sent an email to Rosenberg
stating: “Don't mean to be a bother, but I'm
anxious to find out the disposition of the property and
it's [sic] owners. We don't want to waste our time,
but will come forward when sensible.” On January 23,
2012, Mr. Atwell sent Rosenberg an email stating that
“[t]he client is asking some questions” about the
LVH property. The same day, Rosenberg emailed Mr. Atwell
stating that Rosenberg would forward Mr. Atwell's
interest to a “counterpart . . . driving the process,
” but that Rosenberg and the counterpart were
“not in a position to share information just
following day, Siegel emailed Mr. Atwell: “How is your
search going? I haven't heard anything from you. . .
.” Mr. Atwell sent a response stating that he was
“[s]till working on finding a new location” for
Defendants. Siegel sent a follow up email on February 13,
2012, stating that he hadn't heard from Mr. Atwell
“in a couple weeks” and asked about
“prospects for a new Westgate Resorts in Las
February 18, 2012, Siegel told Mr. Atwell to “go for
it” in response to an inquiry from Mr. Atwell as to
whether Defendants had ever approached the new Hard Rock
tower for purchase. On or around March 15, 2012, Mr. Atwell
communicated to Siegel via email that Mr. Atwell had
“talked to both hard Rock and Palms” and that he
was “still talking with the bank on the [LVH] and some
others.” Siegel responded, “Keep trying and best
wishes on your health.”
Atwell asked Siegel via e-mail dated November 28, 2012 about
a property at the Harmon Tower, owned by MGM. Siegel
responded with a question about the property and stated
“if you can make the deal let's do it. . . .
I'm tearing at the bid [sic]. I still have my whole team
out there that did $100 million a year for 5 years at the PH
Tower.” Siegel confirmed in his 2017 deposition that
the context for this email was that he was “very
excited to get back into Las Vegas[.]”
December 28, 2012, Siegel emailed Mr. Atwell: “Anything
new on the Harmon property, please let me know. In the
meantime have a Happy New Year and good health for
2013.” Several months later, on February 22, 2013, Mr.
Atwell emailed Siegel, CC'ing Ms. Atwell and writing:
“Pursuant to our talk, I've contacted both the LVH
situation and Starwood/Riviera and both are interested. . . .
I think I can arrange a meeting soon.” (Id.).
Four days later, he sent another email stating:
“Starwood and LVH requested a proposal. Please get me a
basic prelim outline as soon as possible.” Siegel
emailed a response the same day, in which he wrote,
“What does Starwood have in Vegas? I have been talking
to LVH for a long time thru a California broker.” Mr.
Atwell sent an email to Siegel on February 26, 2013, in which
Mr. Atwell wrote: “We[']ve been working on the LVH
for many months with the bank via Houlihan Lokey (exclusive
agent). . . . If you[']re bound to another broker in this
regard, I[']ll discontinue my efforts, although I wish
you would have told me this last week when we spoke as I
started this dialogue with them and told them about you many
2012 Engagement of Another Broker to Purchase the
Siegel was corresponding with Mr. Atwell throughout 2012, at
some point Siegel had engaged another broker, Mayur Shetty
(“Shetty”), to purchase the LVH. Siegel and
Shetty corresponded previously via email in August 2011,
regarding refinancing for PH Towers before its closure.
Sachs foreclosed upon the LVH property on October 10, 2012.
On or about October 17, 2012, Shetty reached out to Gramercy
Capital Corp., the other primary creditor for the LVH, via
e-mail to inquire about the LVH, on behalf of Defendants.
This was the first time Shetty had contacted any entity
connected with the LVH, well over a year after Mr.
Atwell's first contact with Mr. Rosenberg.
Sachs took title on the LVH property via 3000 Paradise Road,
LLC on November 1, 2012. Westgate Resorts, Ltd.'s Chief
Financial Officer, Thomas Dugan, sent Shetty a letter on
November 5, ...