                                                                            FILED
                            NOT FOR PUBLICATION                              NOV 17 2009

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



STUART TWITCHELL,                                 No. 08-15849

              Plaintiff - Appellant,              D.C. No. 2:06-CV-00283-KJD-
                                                  GWF
  v.

WENDY PARIS; TESTAMENTARY                         MEMORANDUM *
TRUST, established for the benefit of
Bertrand Michael Paris, Bridget Paris and
Bernadette Marie Paris,

              Defendants - Appellees.



                    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

        *
             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.
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


                                          3
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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