Las Vegas Sands Corp. v. Suen ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
LAS VEGAS SANDS CORP., No. 64594
Appellant,
vs.
FILED
RICHARD SUEN; AND ROUND JUL 2 2 2016
SQUARE COMPANY LIMITED,
TRACE K LINDEMAN
Respondents. CLERF UPREME COURT
BY
ORDER AFFIRMING IN PART, REVERSING IN PART, AND
REMANDING
This is an appeal from a district court judgment on a jury
verdict in a breach of contract action and a district court order denying a
motion for judgment as a matter of law or new trial. Eighth Judicial
District Court, Clark County; Rob Bare, Judge.
On March 11, 2016, this court issued an order affirming in
part, reversing in part, and remanding the district court's judgment in
favor of respondent Round Square Co., Ltd. (Round Square). See Las
Vegas Sands Corp. v. Suen, Docket No. 64594 (Order Affirming in Part,
Reversing in Part, and Remanding, Mar. 11, 2016). Because we granted
rehearing in this matter on June 24, 2016, 1 we withdraw the March 11,
2016, order and issue this order in its place.
This case arises out of business transactions between
appellant Las Vegas Sands, Inc. (LVSI), and respondents Richard Suen
1 See Las Vegas Sands Corp. v. Suen, Docket No. 64594 (Order
Granting Petition for Rehearing, June 24, 2016). In light of this order,
respondents' motion for leave to file a reply in support of the petition is
denied as moot.
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and Round Square. LVSI owns and operates several casino and hotel
operations. Suen conducts business in Hong Kong, Macau, and the
People's Republic of China (PRC). Round Square is a company registered
in Hong Kong and partially owned by Suen.
Suen and Round Square engaged with LVSI to help LVSI
obtain a gaming license in Macau. Suen also worked with, and
coordinated the activities of, Zhu Zhensheng and Choi Yuen Yuen to assist
LVSI. After the parties met, Suen and his associates set up meetings in
Beijing between Sheldon Adelson, LVSI's Chairman and Chief Executive
Officer; William Weidner, LVSI's former President; and high-ranking
officials from the PRC. Eventually, Macau granted LVSI a subconcession
that permitted it to build, finance, and operate casinos.
After negotiations concerning payment for Suen's and Round
Square's efforts fell through, Suen and Round Square filed a complaint
against LVSI alleging claims for breach of contract and quantum meruit.
Prior to the first trial, the district court granted summary judgment in
favor of LVSI on the breach of contract claims but did not discuss Round
Square's quantum meruit claim. The jury awarded Suen $43.8 million on
his quantum meruit claim after a 29-day trial. LVSI appealed the
judgment, and Suen and Round Square cross-appealed the district court's
entry of summary judgment on their breach of contract claims.
This court held, in Las Vegas Sands, Inc. v. Suen, Docket No.
53163 (Order Affirming in Part, Reversing in Part, and Remanding, Nov.
17, 2010) (hereinafter, Suen I), that Suen had standing to recover in
quantum meruit on Choi's and Zhu's behalf. However, this court (1)
reversed the judgment due to evidentiary and instructional errors, (2)
reversed the grant of summary judgment in LVSI's favor on Suen and
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Round Square's contract claims, and (3) remanded the matter for a new
trial. Id. at *3.
After the second trial (hereinafter, Suen II), the jury awarded
Round Square $70 million on its quantum meruit claim and found in favor
of LVSI on all other claims. LVSI filed post-trial motions for judgment as
a matter of law and a new trial or remittitur. The district court denied
LVSI's post-trial motions and entered judgment pursuant to the jury's
verdict.
LVSI now appeals, arguing that (1) the district court erred by
submitting Round Square's quantum meruit claim to the jury; (2) Round
Square lacked standing to pursue a quantum meruit claim; (3) the district
court failed to properly instruct the jury on quantum meruit; (4) neither
the jury's finding that Round Square conferred a benefit onto LVSI, nor
the jury's award of damages are supported by substantial evidence; (5) the
district court abused its discretion in several evidentiary rulings; and (6)
other errors prejudiced LVSI's right to a fair trial.
We hold that there was insufficient evidence to support the
jury's award of damages, and thus, a new trial on the issue of damages is
warranted. We further hold that LVSI's other claims are without merit.
Because the parties are familiar with the facts and procedural history in
this case, we do not recount them further except as necessary for our
disposition.
The district court properly submitted Round Square's quantum meruit
claim to the jury
LVSI contends Round Square could not bring its quantum
meruit claim in Suen II because it waived this claim by failing to appeal
the claim's dismissal in Suen L We disagree.
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A district court's "oral pronouncement of judgment is not valid
for any purpose; therefore, only a written judgment has any effect, and
only a written judgment may be appealed." Div. of Child & Family Servs.
v. Eighth Judicial Dist, Court, 120 Nev. 445, 452, 92 P.3d 1239, 1244
(2004) (internal quotation marks omitted). The district court's summary
judgment order in Suen I only dismissed Round Square's contract claim; it
did not mention, let alone dispose of, Round Square's quantum meruit
claim. Because Round Square had no opportunity to appeal its quantum
meruit claim, and because LVSI did not object to evidence regarding
Round Square's quantum meruit claim, we hold that Round Square's
quantum meruit claim was tried with the implied consent of the parties,
and thus, the claim was properly before the jury. 2 See NRCP 15(b);
Whiteman v. Brandis, 78 Nev. 320, 322, 372 P.2d 468, 469 (1962) (stating
where evidence supporting a quantum meruit claim is received without
objection, the claim is properly tried by the implied consent of the parties).
Round Square has standing to recover in quantum meruit for the efforts of
Suen, Zhu, and Choi
2Because this court's previous order did not mention, let alone
address, Round Square's quantum meruit claim, this court did not decide
any rule of law concerning this claim. Therefore, we hold the law-of-the-
case doctrine and mandate rule do not apply. See Wheeler Springs Plaza,
LLC v. Beemon, 119 Nev. 260, 266, 71 P.3d 1258, 1262 (2003) ("Under the
law-of-the-case doctrine, when an appellate court decides a rule of law,
that decision governs the same issues in subsequent proceedings. The
doctrine only applies to issues previously determined, not to matters left
open by the appellate court." (internal footnote omitted)).
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LVSI argues that Round Square lacked standing to recover in
quantum meruit for the services rendered by Suen and his associates. We
disagree. "Standing is a question of law reviewed de novo." Arguello v.
Sunset Station, Inc., 127 Nev. 365, 368, 252 P.3d 206, 208 (2011).
In Suen I, we concluded that (1) LVSI was aware Suen worked
with Zhu and Choi in a joint effort to deliver LVSI a Macau gaming
license, (2) LVSI directed the work performed by Suen's group, and (3)
LVSI was aware Suen's group expected payment for their efforts. Las
Vegas Sands, Docket No. 53163 at *6 (Order Affirming in Part, Reversing
in Part, and Remanding, Nov. 17, 2010). As a result, we held that Suen,
"as the coordinator of [Zhu's and Choi's] efforts," could recover in quantum
meruit for their services. Id.
As Suen was entitled to recover in quantum meruit for the
efforts of Zhu and Choi if he coordinated their efforts in an individual
capacity, we see no reason why Round Square would not be able to recover
for the efforts of Zhu and Choi if Suen coordinated their efforts in a
representative capacity. In either case, (1) Zhu and Choi performed
services to help secure LVSI a gaming license in Macau; (2) their services
were coordinated by Suen, who received direction from LVSI; and (3) LVSI
was aware the group expected to be paid for its efforts. See Horny
Hammes, Inc. V. McNeil Constr. Co., 91 Nev. 130, 132, 532 P.2d 263, 264
(1975) (holding the services of several subcontractors could be included as
part of the contractor's quantum meruit recovery where testimony
demonstrated such services were performed at the direction of the
defendant); see also Certified Fire Prot., Inc. v. Precision Constr., Inc., 128
Nev. 371, 381, 283 P.3d 250, 257 (2012) (stating a quantum meruit claim
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may be brought where a benefit is conferred with a reasonable expectation
of payment).
Furthermore, we conclude that there was sufficient evidence
to support a finding that Suen was Round Square's agent and acted on
Round Square's behalf. Round Square presented evidence that (1) Suen
was a director of Round Square, (2) Suen provided Adelson and Weidner
with his Round Square business card, (3) Suen communicated with LVSI
on Round Square letterhead, (4) Suen signed the purported acceptance of
the success fee as Round Square's director, and (5) LVSI sent its
procurement offer to "roundsqr@yahoo.com ." Therefore, we hold that
Round Square was entitled to recover in quantum meruit for the efforts of
Suen, Zhu, and Choi.
The district court properly instructed the jury on quantum meruit
LVSI contends the district court abused its discretion by
failing to instruct the jury that (1) Round Square had to show its services
conferred a benefit on LVSI, and (2) the jury needed to consider the
market value of the services performed in awarding damages. We
disagree. "A district court's decision to give or decline a proposed jury
instruction is reviewed for an abuse of discretion or judicial error."
Atkinson v. MGM Grand Hotel, Inc., 120 Nev. 639, 642, 98 P.3d 678, 680
(2004).
A plaintiff seeking to recover in quantum meruit must
demonstrate, inter alia, that its services "confer[red] a benefit on the
defendant." See Certified Fire, 128 Nev. at 381, 283 P.3d at 257. A benefit
is "any form of advantage," not just the specific advantage the parties
purportedly agreed upon. Id. at 382, 283 P.3d at 257 (internal quotation
marks omitted). Likewise, to have "value" means to be significant,
desirable, or useful. Value, Black's Law Dictionary (10th ed. 2014). In the
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context of quantum meruit, we conclude the terms "value" and "benefit"
are interchangeable, as useful or desirable services are those that provide
some form of advantage. Moreover, this is consistent with this court's
precedent, wherein we have distinguished between services that provide
value and those that either harm the recipient or leave him in the same
position he would have been without the services. See Certified Fire, 128
Nev. at 383, 283 P.3d at 258 (holding that the plaintiff could not recover in
quantum meruit where the work performed "was incomplete, incorrect,
and late," thereby providing no "ascertainable advantage" to the
defendant); see also Thompson v. Herrmann, 91 Nev. 63, 68, 530 P.2d
1183, 1186 (1975) (holding that the defendant could not recover in
quantum meruit where the dam constructed had to be destroyed and
rebuilt). Therefore, we conclude the district court did not abuse its
discretion when it accurately reasoned that its instruction requiring
Round Square to show it "performed a service of value to" LVSI
adequately incorporated the benefit requirement.
Furthermore, we hold the district court did not abuse its
discretion when it instructed the jury to "determine the reasonable value
of [Round Square's] services," "consider[ing] the terms of any offers or
proposals between the" parties "or any other evidence regarding the value
of services." Although "[t]he actual value of recovery in [quantum meruit]
cases is usually the lesser of (i) market value and (ii) a price the defendant
has expressed a willingness to pay," Certified Fire, 128 Nev. at 381 n.3,
283 P.3d at 257 n.3 (internal quotation marks omitted), a previous
agreement between the parties may be a proper consideration in
determining the reasonable value of services rendered, see Flamingo
Realty, Inc. v. Midwest Dev., Inc., 110 Nev. 984, 988-89, 879 P.2d 69, 71-72
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(1994). Additionally, the focus of the instruction was on determining the
"reasonable value of the services," and the instruction stated the jury
could consider "any other evidence" in making this determination, which
necessarily includes evidence of the services' market value.
Substantial evidence supports the finding that Round Square conferred a
benefit on LVSI, but does not support the jury's award of damages
LVSI contends Round Square failed to present sufficient
evidence that it conferred a benefit on LVSI. We disagree. We will affirm
a jury's findings "if they are based upon substantial evidence in the
record." Prabhu v. Levine, 112 Nev. 1538, 1543, 930 P.2d 103, 107 (1996).
Substantial evidence is "that which a reasonable mind might accept as
adequate to support a conclusion." Id. (internal quotation marks omitted).
There was substantial evidence in the record to support the
finding that Round Square conferred a benefit onto LVSI, even if the
benefit was not the exact one the parties agreed upon. Suen translated
documents, prepared a report about LVSI, and had the report delivered to
Qian Qichen, China's Vice Premier. Suen also used his connections with,
and coordinated the efforts of, Choi and Zhu to reach out to important
government contacts in Beijing to arrange the Beijing meetings. Further,
Choi used his connections to quickly get permission for Adelson's plane to
land in Beijing so Adelson and Weidner could attend the Beijing meetings.
During the meeting with Qian, Suen also translated for Adelson.
In addition, Weidner testified he wanted to meet Qian so he
could capitalize on Suen's group's "guanxi" 3 and obtain an advantage in
'The social concept of "guanxi," although difficult to define, describes
an aspect of Chinese culture wherein two parties may develop a
relationship—perhaps "based on family ties" or "familiar connections"—
and that relationship is maintained and fostered through various "social
continued on next page...
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the bidding process, thus indicating he believed the Beijing meetings
would be valuable to LVSI's efforts in Macau. Weidner further testified
the Beijing meetings were valuable because they helped LVSI learn about
the Chinese and Macanese governments and gave LVSI the opportunity to
appear helpful with China's bid to host the 2008 Olympics. Moreover,
LVSI continued to use photographs from the Beijing meetings in its
publications years later, suggesting the fact Adelson met with Qian was
valuable to LVSI's ongoing interests in Asia. Finally, Suen advised LVSI
that a partnership with China Development Industrial Bank might
obstruct its efforts to receive a gaming license in Macau: a sentiment
shared by Jorge Oliveira, a Macanese government lawyer appointed to the
tender commission by Macau's Chief Executive Edmund Ho.
Therefore, we conclude Round Square presented substantial
evidence that facilitating the Beijing meetings benefitted LVSI. However,
we conclude a new trial is warranted as to damages, as substantial
evidence does not support the jury's determination that the reasonable
value of the services rendered amounted to $70 million.
Round Square presented Walter Bratic, who testified that the
reasonable value of Round Square's services was $328 million, including
past and future damages. This amount was based solely on Bratic's
estimated value of the success fee offered to Suen, which was itself
...continued
activities" and a process of "reciprocal gift giving." Jacob Harding,
Corruption or Guanxi? Differentiating Between the Legitimate, Unethical,
and Corrupt Activities of Chinese Government Officials, 31 UCLA Pac.
Basin L.J. 127, 130-31 (2014). "The culture of reciprocal gifting to build
relationships, including gaining social introductions to government
officials, has been documented for centuries." Id. at 131.
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primarily based on a percentage of LVSI's net profits. Bratic also
compared the value of the success fee to the procurement deal. In
determining the reasonable value of Round Square's services, Bratic
admitted that he made no attempt to determine what others would have
charged for similar services.
Even assuming Bratic's testimony accurately identified the
value of the success fee and the procurement deal, we hold that these
metrics have a tenuous relationship with the reasonable value of Round
Square's services in introducing LVSI to Chinese government officials.
The "Hontract price and the reasonable value of services rendered are two
separate things," and although the contract price may accurately capture
the reasonable value of services rendered, it may also depart from it
substantially. Maglica v. Maglica, 78 Cal. Rptr. 2d 101, 105 (Ct. App.
1998). For this reason, relying solely on the success fee does not ensure
reasonable compensation for the value of Round Square's services,
especially in light of the fact that the jury rejected Round Square's
contract claim. 4
As Round Square relied exclusively on Bratic's testimony, and
as Bratic relied exclusively on contract damages to determine the value of
Round Square's services, we hold there is not substantial evidence to
support the jury's determination that the reasonable value of Round
Square's services amounted to $70 million. We also decline to remit the
damages award to LVSI's proposed amount of $1 million. Weidner simply
estimated the number of hours Suen and his group might have worked
We have considered Round Square's other arguments on this issue
4
and conclude that they are without merit.
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and multiplied those hours by a general hourly rate. This model reflects
that which we have previously rejected in Flamingo Realty, and we hold a
proper trial as to damages is warranted. 110 Nev. at 988, 879 P.2d at 72.
The district court did not commit any evidentiary errors that warrant
reversal
LVSI contends the district court abused its discretion in
several hearsay rulings and in admitting certain expert testimony.
Therefore, LVSI contends reversal is warranted. We disagree.
We review a district court's determination regarding the
admissibility of evidence for an abuse of discretion. Sheehan & Sheehan v.
Nelson Malley & Co., 121 Nev. 481, 492,117 P.3d 219, 226 (2005). In the
event of an abuse, such an evidentiary ruling does not warrant reversal if
the error was harmless. NRCP 61; Hallmark v. Eldridge, 124 Nev. 492,
505, 189 P.3d 646, 654 (2008). To demonstrate prejudice, the appellant
has the burden of proving "that, but for the error[s], a different result
might reasonably have been expected." Hallmark, 124 Nev. at 505, 189
P.3d at 654 (internal quotation marks omitted).
Even assuming the district court abused its discretion in
admitting various pieces of evidence, we conclude such errors were
harmless. The challenged admissions all relate to whether Round Square
conferred a benefit onto LVSI. However, as stated earlier, there is
substantial evidence in the record, apart from these purported errors, to
support the conclusion that Round Square conferred some benefit onto
LVSI. LVSI has not demonstrated that, but for the errors, one could
reasonably have expected a different result. Therefore, we hold that the
challenged admissions, even if in error, do not warrant reversal.
The trial was not prejudiced by the presence of a biased juror or by the
district court's statements concerning Round Square's case
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LVSI argues that the district court abused its discretion in
denying its motion for a mistrial or a new trial based on juror Martinez's
undisclosed bias. We disagree. Whether a new trial is required due to a
juror's undisclosed bias depends on whether the juror intentionally
concealed his bias, a determination this court reviews for an abuse of
discretion. McNally v. Walkowski, 85 Nev. 696, 701, 462 P.2d 1016, 1019
(1969).
Juror Martinez's supposed bias derives from a sarcastic
comment made to juror Portillo during deliberations. Before the jury
delivered its verdict, LVSI presented its request to remove Martinez as an
"alternative, at some point ... to consider," if Martinez continued to cause
problems after the court reread an instruction on the jury's duty to
deliberate. LVSI never clearly requested the district court to remove
Martinez and no other problems arose concerning juror Martinez's conduct
after the instruction was read. Therefore, we conclude that the district
court did not abuse its discretion when it (1) took steps to ensure that
juror Portillo was willing and able to deliberate with juror Martinez, and
(2) determined that calling the jury in and rereading an instruction on the
jury's duty to deliberate would effectively address the situation.
Lastly, LVSI contends the district court violated its right to a
fair trial by improperly commenting on the evidence. However, LVSI did
not object to any of the district court's allegedly improper statements, and
therefore, LVSI has waived this argument. See Ginnis v. Mapes Hotel
Corp., 86 Nev. 408, 416-17, 470 P.2d 135, 140-41 (1970) (stating a failure
to object to a district court's improper comment on the evidence waives
any claim of error). Therefore, we decline to address the merits of this
argument. Accordingly, we
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ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order. 5
, C.J.
Parraguirre 6
i tkat. de-att ,
J.
Hardesty
?"04,94 J.
Douglas
Gibbons
cc: Hon. Rob Bare, District Judge
Alan M. Dershowitz
Robbins, Russell, Englert, Orseck, Untereiner & Sauber LLP
Morris Law Group
Pisanelli Bice, PLLC
Norton Rose Fulbright US LLP
Eighth District Court Clerk
5 The Honorables Michael Cherry and Kristina Pickering, Justices,
did not participate in the decision of this matter.
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