IN THE SUPREME COURT OF THE STATE OF NEVADA
JACK GAAL, IND DUALLY; AND No. 83133 JACK'S PLACE BAR AND GRILL LW, Appellants, vs. MED LAS VEGAS 101 INC., A NEVADA CORPORATION D/B/A FIRST CHOICE SEP 1 6 2022 BUSINESS BROKERS, LAS VEGAS EUZAÐ R. BROWN CLERK OF slUPRUAE COURT 101, DEPUTY CLERK Res ondent.
ORDER OF AFFIRMANCE This is an appeal from, a district court judgment following a bench trial in a contract action. :Eighth Judicial :District Court, Clark County; Nancy L. Allf, Judge.
Appellant Jack Gaal. entered into an exclusive listing agreement with respondent Las Vegas 101., l n.c. d/b/a First Choice Business Brokers, Las Vegas 101. (FCBB), fbr the sale of Jack's Place Bar and Grill. The agreement listed Jack Gaal as the seller. It also contained a provision that the FCBB's fee would become "fully earned at the time of acceptance by Seller of any type of Purchase Agreement." Potential buyer Angel Soto contacted FCBB about the restaurant. After negotiations, Soto a.nd Gaal entered into a purchase agreement that incorporated a counteroffbr from Gaal. The agreement reflected Soto's request for several documents from Gaal, to be used for independent investigation and due diligence. After the agreement was signed, Gaal stopped communicating with FCBB and did not produce the due diligence documents. Gaal later revealed that the restaurant is owned by the John A. Gaal Family Trust, of which Jack and his wife :Katherine SUPREME COURT OF NEVADA
I947A OSDP5 p. -?9oLl C9 Gaal are trustees. Gaal would later testify that because the trust required both trustees to sign any documents to sell any real property owned by the trust, he lacked the authority to enter into the agreements. After Gaal ceased communicating, FCBI3 sued for breach of contract and breach of the implied covenant of good faith and fair dealing. The district court held a four-day bench trial and found in favor of FC1313 on both claims, awarding FCBB its listing fee under the exclusive listing agreement in the amount of $100,000, prejudgment interest :in the amount of $63,61.5.45, and attorney fees and costs in the amount of $49,110.25. Gaal now appeals the judgment, primarily arguing that the exclusive listing agreement is not valid under NRS 645.320.'
The district court's interpretation and construction of statutes and contracts are reviewed d.e novo. Weddell u. H20, Inc., 1.28 Nev. 94, 1.01., 271 P.3d 743, 748 (2012). Gaal contends that under NRS 645.320(4), the exclusive listing agreement needed to be si.gned by the john A. Gaal Farnily Trust, the true owner of the restaurant, to be valid. We di.sagree. NRS 645.320(4) provides that an exclusive listing agreement must "Pale signed by both the client or h.is or her authorized representative and the broker or his or her authorized representative in order to be enforceable." NRS 645.009 defin.es "[ell ient" as "a person who has entered. into a brokerage agreement with a broker or a. property management
agreement with a broker." Thus, the plain language of the statute does not require that the agreernent be signed by the owner to be enforceable. See Williams u. Clark Cty. Dist. Att'y, 11.8 Nev. /173, 485, 50 P.3d 536, 544. (2002) ("A statute's express definition of a term controls the construction of that
1Gaal does not challenge the award of a ttorney fees and costs. SUPREME COURT OF NEVADA
1947A 2 term no matter where the term appears in the statute."); MGM Mirage u.
Nev. Ins. Guaranty Ass'n, 125 Nev. 223, 228-29, 209 P.3d 766, 769 (2009)
("[Wihen the language of a statute is pla.in and. unambiguous, such that is
capable of on].y one meaning, this court should not construe that statute
otherwise."). Furthermore, "own.er" i.s defined within NRS Chapter 645 in
the context of "Brokerage Agreements I nvolving Commercial Real :Estate,"
not exclusive listing agreements. See N RS 6/15.8735 (defining lojwner" in
part as "a person who holds legal. title to or any interest .in any commercial
real estate that is described :in a brokerage agreement"). "[W]hen the
Negislature has employed a term or phrase in one place and excluded it in
another, it should not be implied where excluded." Coa,st Hotels & Casinos,
Inc. v. Nev. State Labor Conirn'n, 1.17 Nev. 835, 841., 34 P.3d 54.6, 550 (2001).
Therefore, by excluding "owner" from N RS 645.320(4), we presume that the
Legislature purposefully intended to distinguish client from owner.
Accordingly, we concluded that Gaa.l was a "client or hi.s or her
authorized representative" within the meaning of NRS 645.320(4). And,
because the remainder of NRS 645.320's requirements for an exclusive
agency agreement have been met, we further conclude that that the district
court properly d.eterrnined that Gaai and li'CB13 entered into a valid
exclusive listing agreement under NRS 6/15.320.2
2Inad.d.ition to arguing that the exclusive listing agreement is not valid under NRS 645.320, Gaal also contends that the exclusive :listing agreement and the asset purchase agreements are not valid contracts because he did not have the authority to sign them on behalf of the trust. However, based on the clear and unambiguous language of both contracts, Gaal warranted that he had the authority to enter into the agreements, and this argument is thus without m.erit. See Nev. State Educ. Ass'n v. Clark Cty. Educ. Ass'n, 1.37 Nev. 76, 83, 482 P.3d 665, 673 (2021) (holding that
SUPREME COURT OF NEVADA
3 (01 1947A :Finally, "where the action is based On a hstin.g agreement[, fjhe right of the [broker.] to compensation must be governed by that agreement." Easton Bus. Opportunities, Inc. v. Thum Excc. Suites-E. Marketplace, LLC,
1.26 Nev. 119, 128, 230 P.3d 827, 833 (20.10) (alterations in original) (internal quotation marks omitted). 'Here, the exclusive listing agree.ment clearly and unambiguously provided that VCI3.13 was entitled. to its commission "at the time of acceptance by Seller of any type of Purchase Agreement." See Neu. State Educ. Ass'n, "1:37 Nev. at 83, 482 P.3d at 673. And. Gaal and. Soto entered into a valid asset pu.rchase agreement. Accordingly, we conclude that the district court properly determined that there was a breach of contract,3 and VC was entitled to its commission." Thus, we
"Rlhis court initially determines whether the language of the contract is clear and unambiguous; i.f it is, the contract will be enforced as written." (internal quotation marks omitted)).
Gaa1 contends that the district court did not determin.e that there 3
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IN THE SUPREME COURT OF THE STATE OF NEVADA
JACK GAAL, IND DUALLY; AND No. 83133 JACK'S PLACE BAR AND GRILL LW, Appellants, vs. MED LAS VEGAS 101 INC., A NEVADA CORPORATION D/B/A FIRST CHOICE SEP 1 6 2022 BUSINESS BROKERS, LAS VEGAS EUZAÐ R. BROWN CLERK OF slUPRUAE COURT 101, DEPUTY CLERK Res ondent.
ORDER OF AFFIRMANCE This is an appeal from, a district court judgment following a bench trial in a contract action. :Eighth Judicial :District Court, Clark County; Nancy L. Allf, Judge.
Appellant Jack Gaal. entered into an exclusive listing agreement with respondent Las Vegas 101., l n.c. d/b/a First Choice Business Brokers, Las Vegas 101. (FCBB), fbr the sale of Jack's Place Bar and Grill. The agreement listed Jack Gaal as the seller. It also contained a provision that the FCBB's fee would become "fully earned at the time of acceptance by Seller of any type of Purchase Agreement." Potential buyer Angel Soto contacted FCBB about the restaurant. After negotiations, Soto a.nd Gaal entered into a purchase agreement that incorporated a counteroffbr from Gaal. The agreement reflected Soto's request for several documents from Gaal, to be used for independent investigation and due diligence. After the agreement was signed, Gaal stopped communicating with FCBB and did not produce the due diligence documents. Gaal later revealed that the restaurant is owned by the John A. Gaal Family Trust, of which Jack and his wife :Katherine SUPREME COURT OF NEVADA
I947A OSDP5 p. -?9oLl C9 Gaal are trustees. Gaal would later testify that because the trust required both trustees to sign any documents to sell any real property owned by the trust, he lacked the authority to enter into the agreements. After Gaal ceased communicating, FCBI3 sued for breach of contract and breach of the implied covenant of good faith and fair dealing. The district court held a four-day bench trial and found in favor of FC1313 on both claims, awarding FCBB its listing fee under the exclusive listing agreement in the amount of $100,000, prejudgment interest :in the amount of $63,61.5.45, and attorney fees and costs in the amount of $49,110.25. Gaal now appeals the judgment, primarily arguing that the exclusive listing agreement is not valid under NRS 645.320.'
The district court's interpretation and construction of statutes and contracts are reviewed d.e novo. Weddell u. H20, Inc., 1.28 Nev. 94, 1.01., 271 P.3d 743, 748 (2012). Gaal contends that under NRS 645.320(4), the exclusive listing agreement needed to be si.gned by the john A. Gaal Farnily Trust, the true owner of the restaurant, to be valid. We di.sagree. NRS 645.320(4) provides that an exclusive listing agreement must "Pale signed by both the client or h.is or her authorized representative and the broker or his or her authorized representative in order to be enforceable." NRS 645.009 defin.es "[ell ient" as "a person who has entered. into a brokerage agreement with a broker or a. property management
agreement with a broker." Thus, the plain language of the statute does not require that the agreernent be signed by the owner to be enforceable. See Williams u. Clark Cty. Dist. Att'y, 11.8 Nev. /173, 485, 50 P.3d 536, 544. (2002) ("A statute's express definition of a term controls the construction of that
1Gaal does not challenge the award of a ttorney fees and costs. SUPREME COURT OF NEVADA
1947A 2 term no matter where the term appears in the statute."); MGM Mirage u.
Nev. Ins. Guaranty Ass'n, 125 Nev. 223, 228-29, 209 P.3d 766, 769 (2009)
("[Wihen the language of a statute is pla.in and. unambiguous, such that is
capable of on].y one meaning, this court should not construe that statute
otherwise."). Furthermore, "own.er" i.s defined within NRS Chapter 645 in
the context of "Brokerage Agreements I nvolving Commercial Real :Estate,"
not exclusive listing agreements. See N RS 6/15.8735 (defining lojwner" in
part as "a person who holds legal. title to or any interest .in any commercial
real estate that is described :in a brokerage agreement"). "[W]hen the
Negislature has employed a term or phrase in one place and excluded it in
another, it should not be implied where excluded." Coa,st Hotels & Casinos,
Inc. v. Nev. State Labor Conirn'n, 1.17 Nev. 835, 841., 34 P.3d 54.6, 550 (2001).
Therefore, by excluding "owner" from N RS 645.320(4), we presume that the
Legislature purposefully intended to distinguish client from owner.
Accordingly, we concluded that Gaa.l was a "client or hi.s or her
authorized representative" within the meaning of NRS 645.320(4). And,
because the remainder of NRS 645.320's requirements for an exclusive
agency agreement have been met, we further conclude that that the district
court properly d.eterrnined that Gaai and li'CB13 entered into a valid
exclusive listing agreement under NRS 6/15.320.2
2Inad.d.ition to arguing that the exclusive listing agreement is not valid under NRS 645.320, Gaal also contends that the exclusive :listing agreement and the asset purchase agreements are not valid contracts because he did not have the authority to sign them on behalf of the trust. However, based on the clear and unambiguous language of both contracts, Gaal warranted that he had the authority to enter into the agreements, and this argument is thus without m.erit. See Nev. State Educ. Ass'n v. Clark Cty. Educ. Ass'n, 1.37 Nev. 76, 83, 482 P.3d 665, 673 (2021) (holding that
SUPREME COURT OF NEVADA
3 (01 1947A :Finally, "where the action is based On a hstin.g agreement[, fjhe right of the [broker.] to compensation must be governed by that agreement." Easton Bus. Opportunities, Inc. v. Thum Excc. Suites-E. Marketplace, LLC,
1.26 Nev. 119, 128, 230 P.3d 827, 833 (20.10) (alterations in original) (internal quotation marks omitted). 'Here, the exclusive listing agree.ment clearly and unambiguously provided that VCI3.13 was entitled. to its commission "at the time of acceptance by Seller of any type of Purchase Agreement." See Neu. State Educ. Ass'n, "1:37 Nev. at 83, 482 P.3d at 673. And. Gaal and. Soto entered into a valid asset pu.rchase agreement. Accordingly, we conclude that the district court properly determined that there was a breach of contract,3 and VC was entitled to its commission." Thus, we
"Rlhis court initially determines whether the language of the contract is clear and unambiguous; i.f it is, the contract will be enforced as written." (internal quotation marks omitted)).
Gaa1 contends that the district court did not determin.e that there 3
was a breach of the covenant of good ra ith and lair dealing because there was not a determination of bad faith, but the district court expressly concluded that FMB succeeded on this claim against Gaal., and we thus conclude this argument is without .merit.
"Gaal al.so argues that the district court erred in ref.using to allow Gene Northrup to testify at the bench trial. Having considered. this argument we conclude that the district court did not abuse its discretion in excluding Northup because Gaal failed to timely disclose hi.m. See NR,CP 16.1.(e)(3)(13) (providing that a district court may sanction an attorney by excluding evidence th.e attorney should have disclosed under NRCP 1.6.1(a)); see also Pizarro-Ortega u. Ceruantes-Lopez, 1:.i3 Nev. 261, 265, 396 P.3d 783, 787-88 (2017) (clarifying that this exclusion is discretionary). We also conclude that th.e district court did not err in refusing to take judicial notice of records from the county recorder's ofhce presented by Gaal for th.e first time at trial.. The district court permitted Ca a l the opportunity to attempt
SUPREME COURT OF NEVADA /I (0) I947A ORDER, the judgment of' the dist . ict court A I
lardesty
, J. Stiglich
leimdon
cc: Hon. Nancy L. Allf, District ,Judge Kristine M.. Kuzemka, Settlement David J. Winterton & Associa tes, Assly Sayyar Jones Lovelock. Rocheleau Law Group/Ri 1 wyers Eighth District Court Cler
to admit the record.s through wit,ness testimony, and he declined to do so. See NILS 47.150(2) ("A jud.ge or court, shall take judicial notice i.f requested by a party and supplied with tho ncc(ssau information.") (emphasis added)). SUPREME COURT OF NEVADA
(0) I 9,i7A c4Wi,