Heather Atwell v. Westgate Resorts, Inc. ( 2020 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 29 2020
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
RESORT PROPERTIES OF AMERICA, No. 19-17168
INC., et al.,
D.C. No. 2:15-cv-02122-RFB
Plaintiffs-Appellees,
v. MEMORANDUM*
CENTRAL FLORIDA INVESTMENTS,
INC., et al.,
Defendants-Appellants.
Appeal from the United States District Court
for the District of Nevada
Richard F. Boulware II, District Judge, Presiding
Argued and Submitted September 3, 2020
Seattle, Washington
Before: HAWKINS and McKEOWN, Circuit Judges, and CALDWELL,** District
Judge.
Central Florida Investments, Inc. and Westgate Las Vegas Resort, LLC
(together, “Central Florida”) appeal the district court’s denial of their motions for
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Karen K. Caldwell, United States District Judge for
the Eastern District of Kentucky, sitting by designation.
judgment as a matter of law, new trial, and remittitur, which followed a $2.5
million verdict against them.
Plaintiffs Heather Atwell, as administrator of David Atwell’s estate, and
Resort Properties of America, Inc. (together “RPA, Inc.”) asserted claims for
quantum meruit and fraud against Central Florida after it failed to pay David
Atwell or his sole proprietorship, Resort Properties of America (“RPA”), a
commission on a real estate deal.
The parties are familiar with the facts, so we do not repeat them here.1 We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
Central Florida presents three arguments on appeal that it never presented to
the district court: that RPA, Inc. abandoned any claim to the commission as a
matter of law by breaching a fiduciary duty to it; that David Siegel’s statements
regarding his intent to purchase the Riviera could not constitute fraud as a matter
of law because they were mere opinion, prediction, or puffery; and that the district
court erred in determining that the jury intended to award $2.5 million. We decline
to address these issues. “As a general rule, an appellate court will not hear an issue
raised for the first time on appeal.” Whittaker Corp. v. Execuair Corp., 953 F.2d
510, 515 (9th Cir. 1992).
1
Appellees’ Motion to Take Judicial Notice of Findings of Fact and Stipulated
Conclusions of Law (Dkt. 15) is granted.
2
Central Florida also argues that the district court abused its discretion in
denying its motion to reduce the $1 million fraud verdict, in prohibiting it from
inquiring at trial into whether RPA, Inc. was a licensed real estate broker, and in
declining to instruct the jury on a novation defense.
None of the challenged rulings is an abuse of discretion. The fraud verdict
was supported by substantial evidence regarding the amounts that RPA would have
received had David Siegel’s representations regarding his intent to purchase the
Riviera been true. Collins v. Burns, 741 P.2d 819, 822 (Nev. 1987). The district
court did not prohibit Central Florida from adequately inquiring into whether RPA,
Inc. was a licensed real estate broker. As to the novation defense, there was no
evidence from which the jury could have concluded that the parties intended that a
second contract would extinguish Central Florida’s agreement to pay RPA a
commission for the purchase of the Las Vegas Hilton. United Fire Ins. Co. v.
McClelland, 780 P.2d 193, 195-96 (Nev. 1989).
AFFIRMED.
3