Nype v. Las Vegas Land Partners, LLC ( 2013 )

 As the parties are well aware of the facts, we merely
summarize them here. LVLP owned five blocks of land in downtown Las
Vegas that it wished to develop. It hired Nype to help find an investor
that would fund the project. Through one of Nype's contacts, LVLP was
introduced to Forest City. LVLP appears to have worked with Nype in
brokering a deal with Forest City, and may have promised him
compensation for this work although it does not appear they formally
contracted with him concerning the Forest City deal.
LVLP and Forest City negotiated a partnership, but Forest
City initially backed out. Nype worked with Forest City to get them to
reconsider, and Forest City entered into a letter of intent to form a
limited-liability company (LLC) with LVLP. However, Forest City let that
agreement lapse, and the partnership fell through. A few months later,
however, Forest City contacted LVLP and indicated it would be interested
in restructuring the transaction as a land sale contract. The parties
thereafter contracted to sell a tenancy-in-common interest in the land to
Forest City. Nype may not have been aware of the sale contract, as it
appears LVLP began excluding Nype from its correspondences with Forest
City during this time.
LVLP, Nype, and other interested parties litigated the case in
New York and Nevada. When discovery in the Nevada case moved
forward, LVLP petitioned for summary judgment. The district court
granted the motion because the final agreement was a land sale contract,
and it found NRS 642.270 bars unlicensed person from collecting
compensation for work done in the capacity of a real estate broker. The
order relied on Islandia, Inc. v. Marechek, 82 Nev. 424, 427-28, 420 P.2d 5,
6 (1966), and Loomis v. Lange Financial Corp., 109 Nev. 1121, 1127-28,
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865 P.2d 1161, 1165 (1993), in finding that Nype acted as a broker by
bringing the parties together and later claiming a commission on the
resulting land sale. The district court did not explain which of Nype's acts
met the statutory definition of real estate broker, assuming that Nype was
necessarily covered by the statute because the ultimate transaction was a
land sale contract.
This court reviews questions of statutory construction and the
district court's legal conclusions de novo. Buzz Stew, LLC v. City of N. Las
Vegas, 124 Nev. 224, 228, 181 P.3d 670, 672 (2008); California Commercial
v. Amedeo Vegas I, 119 Nev. 143, 145, 67 P.3d 328, 330 (2003). In
interpreting any statute, this court looks first to the plain language of the
statute and construes the statute so as not to produce unreasonable
results. Harris Assocs. v. Clark County Sch. Dist., 119 Nev. 638, 641-42,
81 P.3d 532, 534 (2003). Likewise, this court reviews a grant of summary
judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d
1026, 1029 (2005). Summary judgment is appropriate only where the
evidence reflects no genuine issue of material fact and, as a matter of law,
the moving party is entitled to judgment. Id.On appeal, LVLP makes the same argument it did before the
district court: if a party's efforts culminate in the sale of an interest in
land, and that party does not hold a Nevada realtor license, that party is
precluded from collecting any fee pursuant to NRS 645.270, regardless of
the party's intent in undertaking or furthering the transaction.
We disagree. NRS 645.230 requires a real estate broker or
salesperson to be licensed to conduct real estate transactions. NRS
645.270 bars a person not licensed as a real estate broker from collecting
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•-•••
compensation "for the performance of any of the acts mentioned in NRS
645.030.. . ." NRS 645.030 defines a real estate broker, in part, as
a person who, for another and for compensation or
with the intention or expectation of receiving
compensation: (a) [s]ells, exchanges, options,
purchases, rents or leases, or negotiates or offers,
attempts or agrees to negotiate the sale, exchange,
option, purchase, rental or lease of, or lists or
solicits prospective purchasers, lessees or renters
of, any real estate. . . .
NRS 645.030(1)(a). This definition focuses on the nature of the action, not
the nature of the ultimate outcome. Moreover, the statute later exempts
certain persons who do "not perform any tasks related to the sale or other
transfer of an interest in real estate," further supporting that if the action
was not intended to effect the transfer of real property, the actor may not
fall within the definition of a real estate broker. NRS 645.030(3). Thus,
only persons who act for the purpose of furthering a sale, lease, or rent
contract for real property fall within the definition of real estate broker
and are subject to NRS 645.270.
This comports with established Nevada law. And contrary to
the district court's analysis, Islandia compels this conclusion.' There, we
held that the licensing requirement will not preclude payment of a
commission unless the services rendered fall within acts outlined in NRS
645.030, and that this determination rests on the individual
'The district court also erroneously relied on Loomis, 109 Nev. 1121,
865 P.2d 1161. That case dealt with a person who acted as a real estate
agent in a real estate transaction while willfully evading the licensing
scheme, and is therefore distinguished from the case at hand. Id. at 1127-
28, 865 P.2d at 1165.
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circumstances of the services. 82 Nev. at 427-28, 420 P.2d at 7. That case
makes clear that a person who is not a licensed real estate broker may
recover a commission where the work was not done to further or procure
the sale of an interest in land but nevertheless resulted in a land sale
contract. Moreover, this approach is consistent with other jurisdictions.
See Greenlake Capital, LLC v. Bingo Inv., LLC, 111 Cal.Rptr.3d 82, 85-86
(Cal. Ct. App. 2010); Transaction Advisory Servs., LLC v. Silver Bar
Holding, LLC, 831 N.Y.S.2d 159, 159 (App. Div. 2007); Roberts v. Gaskins,
486 S.E.2d 771, 775 (S.C. Ct. App. 1997); Sheppard v. Bay Cnty. Realty,
Inc., 465 A.2d 857, 861 (Md. 1983).
Therefore, before refusing to enforce a commission, the court
must first determine whether the person's actions brought him or her
within the scope of NRS 645.030. Here, the district court determined
there was no genuine issue of material fact because the final agreement
between LVLP and Forest City was for the sale of an interest in land,
Nype claimed a commission based on that sale, and Nype was not a
licensed realtor. However, the district court focused on the final
transaction and did not consider whether Nype's acts fell within the scope
of activities limited to real estate brokers under NRS 645.030.
Nype presented emails and affidavits suggesting that he had
an agreement with LVLP to secure investors, that this agreement did not
necessarily contemplate the sale of any interest in land, and that he acted
to secure a contract between Forest City and LVLP for them to form a
LLC. The evidence does not show whether Nype acted knowing Forest
City and LVLP intended to enter into a land sale agreement or whether
Nype's actions conflicted with the licensing requirement. LVLP's
assertion that Nype clearly violated the statute by "'solicit[ing]' the
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prospective purchaser of the property, Forest City, [by] . . . pitch[ing]
Forest City on the value of the property (i.e., 'selling' the property)" is not
determinative. This is so because the evidence shows only that the final
transaction was a land sale contract, but not that the initial work and
agreements contemplated that result or that Nype engaged in specific
actions reserved by NRS 645.030 to licensed real estate brokers.
Thus, genuine issues of material fact remain concerning
whether Nype is entitled to compensation. At a minimum, the district
court must consider whether all of Nype's actions, for which he now claims
compensation, were in the scope of NRS 645.030, or whether some or all of
his actions fell outside the scope of that statute. And, if Nype performed
work that is not restricted to licensed realtors under NRS 645.030,
questions remain concerning the formation and scope of the agreement
between Nype and LVLP, the effect the contract has on other agreements
between the parties and third parties, and the amount of compensation
due to Nype. Accordingly, summary judgment dismissing Nype's claims
was inappropriate. We therefore
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
J.
Saitta
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cc: Hon. Ronald J. Israel, District Judge
Thomas J. Tanksley, Settlement Judge
Lewis & Roca, LLP/Las Vegas
Rice Silbey Reuther & Sullivan, LLP
Reisman Sorokac
Kemp, Jones & Coulthard, LLP
Sterling Law, LLC
Eighth District Court Clerk
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