Stuart Twitchell v. Wendy Paris

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The Honorable Jane A. Restani, Chief Judge of the United States**
Court of International Trade, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STUART TWITCHELL,
Plaintiff - Appellant,
v.
WENDY PARIS; TESTAMENTARY
TRUST, established for the benefit of
Bertrand Michael Paris, Bridget Paris and
Bernadette Marie Paris,
Defendants - Appellees.
No. 08-15849
D.C. No. 2:06-CV-00283-KJD-
GWF
MEMORANDUM *
Appeal from the United States District Court
for the District of Nevada
Kent J. Dawson, District Judge, Presiding
Argued and Submitted October 7, 2009
San Francisco, California
Before: HUG and PAEZ, Circuit Judges, and RESTANI, Judge.**
Plaintiff Stuart Twitchell appeals the district court’s judgment after a bench
trial in favor of Defendants Wendy Paris et al. on Twitchell’s claims to recover a
FILED
NOV 17 2009
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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real estate commission under breach of contract, breach of the covenant of good
faith and fair dealing, and unjust enrichment theories and on Defendants’
counterclaims for a declaration that two clauses of the contract were
unconscionable and for breach of contract, breach of the covenant of good faith
and fair dealing, breach of fiduciary duty, constructive fraud, and negligence per
se/violation of statutes and administrative regulations. We have jurisdiction under
28 U.S.C. § 1291. We affirm the district court’s judgment on Twitchell’s claims
but reverse the judgment on the counterclaims.
The district court found that Twitchell was not the procuring cause of the
sale because he abandoned efforts by failing to become involved in the sale
negotiations, to contact the buyers for about two years before the sale, or actively
to pursue other potential buyers. This is a finding of ultimate fact, and it is not
clearly erroneous. See Atwell v. Sw. Sec., 820 P.2d 766, 770 (Nev. 1991) (per
curiam). Twitchell therefore could not recover a commission under the contract or
under an unjust enrichment theory. See Carrigan v. Ryan, 858 P.2d 29, 30–32
(Nev. 1993) (per curiam); Atwell, 820 P.2d at 769–70. Further, because Twitchell
abandoned efforts, Paris did not breach the covenant of good faith and fair dealing
when she failed to notify Twitchell of the sale negotiations. See Bartsas Realty,
Inc. v. Leverton, 409 P.2d 627, 630 (Nev. 1966). Accordingly, we affirm the

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district court’s conclusion that Twitchell was not entitled to a commission from
Defendants under any theory.
The district court, however, erred when it declared two clauses in the
contract—the ten-percent commission rate and the eighteen-month listing period
with a nine-month grace period—unenforceable because they were
unconscionable. The clauses were not procedurally unconscionable, as there is no
evidence that Paris was denied a meaningful opportunity to negotiate the terms or
that Twitchell had superior bargaining power, and the terms were readily
ascertainable. See D.R. Horton, Inc. v. Green, 96 P.3d 1159, 1162 (Nev. 2004)
(per curiam). The contract’s terms were not so one-sided as to render the clauses
substantively unconscionable, as the contract imposed significant obligations on
Twitchell and provided protections for the nonexclusive listing. See id. at
1162–63. We therefore reverse the district court’s declaratory judgment under
Nev. Rev. Stat. § 30.040 that the clauses were unenforceable.
We lack jurisdiction to review the district court’s conclusion that Paris is
entitled to fees under Nev. Rev. Stat. § 30.120 where the district court has not yet
determined the amount of the fee award. See Intel Corp. v. Terabyte Int’l, Inc., 6
F.3d 614, 617 (9th Cir. 1993). Because the district court erred in granting
judgment for Paris under Nev. Rev. Stat. § 30.040, however, there is no longer a

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basis for the fee award. See Nev. Rev. Stat. § 30.120
Finally, because Defendants obtained complete relief by defeating
Twitchell’s claims, their counterclaims seeking rescission of the contract were
moot. We therefore reverse the district court’s judgment in favor of Defendants on
those counterclaims as well.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART AND REVERSED IN PART.

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