Mike Kuzack v. Wells Fargo Bank

FILED
NOT FOR PUBLICATION MAR 13 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MIKE KUZACK, personal representative No. 12-17688
for Joseph F. Nascimento,
D.C. No. 2:11-cv-01049-JCM-
Plaintiff - Appellant, GWF
v.
MEMORANDUM*
WELLS FARGO BANK, NA,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Submitted March 10, 2015**
San Francisco California
Before: McKEOWN, MURGUIA, and FRIEDLAND, Circuit Judges.
Mike Kuzack, personal representative for Joseph Nascimento, appeals the
decision of the district court granting summary judgment to Wells Fargo Bank.
Nascimento alleged that Wells Fargo breached its agreement to pay Nascimento
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
$750,000.00 to settle a dispute over Nascimento’s $20,000.00 home equity line of
credit. Nascimento based his claim on a series of four letters that he said he
received from Wells Fargo and Wells Fargo’s predecessor-in-interest, Wachovia
Bank. These letters each purported to accept Nascimento’s settlement demand of
$750,000.00 in exchange for Nascimento’s release of all claims against the banks.
We have jurisdiction under 28 U.S.C. § 1291. Reviewing the district court’s
decision de novo, Ambat v. City & Cnty. of S.F., 757 F.3d 1017, 1023 (9th Cir.
2014), we affirm.
It is well established in Nevada that an agreement is not made “[w]here
essential terms of a proposal are accepted with qualifications, or not at all . . . .”
Heffern v. Vernarecci, 544 P.2d 1197, 1198 (Nev. 1976). Instead, the addition of
material terms that cannot be implied from the original offer transforms the
purported acceptance into a rejection of the original offer and a counter-offer. See
May v. Anderson, 119 P.3d 1254, 1258 (Nev. 2005); Heffern, 544 P.2d at 1198; see
also 17 C.J.S. Contracts § 54.
Assuming for purposes of summary judgment that the four letters were
authored by the banks, none of the letters were valid acceptances of Nascimento’s
settlement offer because they each added material terms that could not be implied
from Nascimento’s original offer. Therefore, the letters constituted four separate
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counter-offers that required Nascimento’s acceptance. See Heffern, 544 P.2d at
1198. Because Nascimento did not accept these counter-offers, we agree with the
district court that an agreement was not formed under Nevada law. See id.
AFFIRMED.
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