Sierra Site Solutions, LLC v. Srs Liquidation, LLC ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
SIERRA SITE SOLUTIONS, LLC, A No. 64834
NEVADA LIMITED LIABILITY
COMPANY,
Appellant,
vs.
SRS LIQUIDATION, LLC, A NEVADA
LIMITED LIABILITY COMPANY;
OPPIO-CAPURRO PROPERTIES, LLC, A FILED
NEVADA LIMITED LIABILITY
COMPANY; SIERRA RESTROOM JAN I 5 2016
SOLUTIONS, LLC; SWEEP NEVADA, TRACE K. LINDEMAN
CLER UPREME COURT
LLC; HIGH SIERRA SWEEPING, LLC; BY
CHARLES OPPIO, AN INDIVIDUAL; DEPUTY CLERK
KEITH CAPURRO, AN INDIVIDUAL;
BRAD CAPURRO; CLINTON CAPURRO;
AND CHAD BELDING,
Respondents.
SRS LIQUIDATION, LLC, A NEVADA
LIMITED LIABILITY COMPANY;
OPPIO-CAPURRO PROPERTIES, LLC, A
NEVADA LIMITED LIABILITY
COMPANY; AND KEITH CAPURRO, AN
INDIVIDUAL,
Cross-Appellants
vs.
SIERRA SITE SOLUTIONS, LLC, A
NEVADA LIMITED LIABILITY
COMPANY; AND PAUL PHILLIPS, AN
INDIVIDUAL,
Cross-Respondents
ORDER AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
This is an appeal and cross-appeal from a district court
judgment in a breach of contract action. Second Judicial District Court,
Washoe County; Patrick Flanagan, Judge.
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Appellant/cross-respondent Sierra Site Solutions, LLC (SSS)
purchased portable toilet and street sweeping businesses from the seller
respondents/cross-appellants. A year after the purchase, SSS stopped
paying on a promissory note and the sellers filed the underlying action.
The district court entered judgment in favor of the sellers and concluded
that SSS had breached the promissory note and that the sellers had not
breached their representations in the asset purchase agreement regarding
their financial records and their top 30 clients' indications regarding any
intention to materially decrease their business. The district court,
however, did not award the sellers $18,973.95 for accounts receivable they
asserted SSS had collected and owed to them. Nevertheless, the district
court did award the sellers attorney fees and costs under the promissory
note.
Having reviewed the parties' arguments and the record on
appeal, we conclude that substantial evidence supports the district court's
conclusions that the sellers did not breach their representations.' See
Sowers v. Forest Hills Subdivision, 129 Nev., Adv. Op. 9, 294 P.3d 427,
432 (2013) (providing that this court will uphold the district court's factual
findings as long as they are supported by substantial evidence). The
parties' asset purchase agreement provided that the financial records
fairly represented the financial condition of the sellers' businesses. A
$28,735 mislabeled record in an almost million-dollar sale is not
"Both sides have attached excerpts of the trial transcript that do not
include indications of the identities of the witnesses testifying. Appellant
is responsible for making an adequate appellate record, and when
"appellant fails to include necessary documentation in the record, we
necessarily presume that the missing portion supports the district court's
decision." Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603,
172 P.3d 131, 135 (2007).
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substantial evidence that the sellers failed to fairly represent the
businesses' financial conditions. Further, there was no evidence that any
of the sellers' top 30 clients had actually indicated to sellers that they
would stop or materially decrease their business. Thus, we affirm the
district court's findings that sellers did not breach these representations in
the asset purchase agreement.
We, however, conclude that substantial evidence does not
support the district court's finding that the sellers failed to prove that SSS
owed them $18,973.95 in accounts receivable. Sowers, 129 Nev., Adv, Op.
9, 294 P.3d at 432. In its answer to the complaint, SSS admitted to the
allegation that it had "collected on some outstanding accounts receivable
that are owed to [sellers]." The businesses' office manager testified that
SSS had collected the requested amount in accounts receivable on the
sellers' behalf and never paid that amount to the sellers. Thus,
substantial evidence does not support the district court's finding and we
reverse the district court's denial of the sellers' claim for $18,973.95 in
accounts receivable. Sowers, 129 Nev., Adv. Op. 9, 294 P.3d at 432.
Additionally, we conclude that the district court abused its
discretion in awarding attorney fees and costs to the sellers. Gunderson v.
D.R. Horton, Inc., 130 Nev., Adv. Op. 9, 319 P.3d 606, 615 (2014)
(explaining that this court reviews an award of attorney fees for an abuse
of discretion). The district court awarded these fees and costs under the
promissory note to which only SSS and respondent/cross-appellant Oppio-
Capurro Properties, LLC were parties. 2 While the district court has the
the sellers assert that the district court awarded them
2 While
attorney fees and costs under the promissory note as well as NRS
18.010(2)(b) and NRCP 37(c)(2), the district court's findings of fact,
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conclusions of law, and judgment only awarded fees and costs under the
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discretion to award all of the sellers' incurred fees and costs, it must first
attempt to apportion the fees and costs associated with enforcing the
promissory note from the rest of the fees and costs incurred in this case
and then make specific findings regarding the circumstances of the case
that make apportionment impracticable. Mayfield v. Koroghli, 124 Nev.
343, 353, 184 P.3d 362, 369 (2008). Because the district court did not
make findings regarding the practicability of apportioning the fees and
costs, we reverse and remand this matter to the district court. 3
It is so ORDERED.
fa-cc
Hardesty
debt ay
' ,J.
Saitta Pickering )
CC: Hon. Patrick Flanagan, District Judge
Robert L. Eisenberg, Settlement Judge
Snell & Wilmer, LLP/Reno
Robertson, Johnson, Miller & Williamson
Washoe District Court Clerk
...continued
promissory note and the district court's order regarding the amount of
attorney fees and costs did not change or expand upon what grounds the
court was awarding fees and costs.
we reverse on these grounds, we need not address SSS's
3 Because
argument that the attorney fees award was unreasonable because only a
portion of the fees were actually billed to the sellers. See Miller v. Burk,
124 Nev. 579, 588-89 & n.26, 188 P.3d 1112, 1118-19 & n.26 (2008)
(explaining that this court need not address issues if they are unnecessary
to resolve the case at hand).
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