[00:00:01] Speaker 03: I'd like to say the E on the end is silent like it's swimming. [00:00:07] Speaker 02: We're going to leave your E off then, okay? [00:00:09] Speaker 02: Fine, thank you. [00:00:10] Speaker 02: You can say whatever you want, Your Honor. [00:00:11] Speaker 02: Okay, well you're Mr. Vogel. [00:00:12] Speaker 02: I'd like to reserve five minutes for a repond. [00:00:14] Speaker 02: Okay, go ahead. [00:00:14] Speaker 03: Okay. [00:00:15] Speaker 03: Good morning and may it please the court. [00:00:17] Speaker 03: My name is Tom Vogel. [00:00:18] Speaker 03: I represent Appellant NVWS Properties, LLC, and Cross Appellants Michael Ponder and Leslie Gunn. [00:00:27] Speaker 03: I'd like to begin to discuss this first case, the 273 case, addressing the issue of the unjust enrichment is not being available when there's a breach of contract claim available to the plaintiff. [00:00:41] Speaker 03: As our briefs note, the issue sort of bogged down in [00:00:46] Speaker 03: What is an express contract? [00:00:48] Speaker 03: Is an oral contract an express contract? [00:00:50] Speaker 03: The law is unclear. [00:00:51] Speaker 03: It never uses the words express contracts as exclusively being written. [00:00:56] Speaker 03: And as we've learned in contract law, first year of law school, an express contract can be oral or written. [00:01:03] Speaker 03: What's interesting is throughout the appellate briefs of CASIM and throughout its trial brief, it refers to these exact words, quote, 2.05 million purchase price. [00:01:16] Speaker 03: not about, not kind of. [00:01:18] Speaker 03: It's a specific term. [00:01:19] Speaker 03: It's the purchase price agreed to by the parties. [00:01:22] Speaker 03: It does so 12 times in its appellate briefs. [00:01:26] Speaker 03: It does so 12 times in its trial brief. [00:01:29] Speaker 03: And in fact, in its requested proposed findings of fact and conclusions of law, it uses this same term. [00:01:37] Speaker 02: Let me ask you a question. [00:01:38] Speaker 02: I know that you and Professor Corbin have a lot in common with your understanding of contract law, but didn't [00:01:45] Speaker 02: Do you waive the argument of unjust enrichment as a contract remedy? [00:01:51] Speaker 03: No, Your Honor. [00:01:51] Speaker 03: There was no breach of contract pled by the plaintiff, so therefore there was no affirmative defense that would be necessary at trial. [00:02:00] Speaker 03: When the court found, in fact in the court's findings of fact and conclusions of law, it talks about the 2.05 million purchase price. [00:02:07] Speaker 03: I think anyone looking at this case will see that there was a purchase and sale agreement made between Peter Wild on behalf of Case Invest AG and Lesley Gunn on behalf of a yet to be formed but then formed NBWS properties. [00:02:22] Speaker 03: We had an offer. [00:02:23] Speaker 03: We had acceptance. [00:02:24] Speaker 03: We had considerations stated exactly $2.05 million. [00:02:28] Speaker 03: And then we had a park performance case and did transfer the property. [00:02:35] Speaker 03: And there was a legal purpose to it. [00:02:37] Speaker 03: I mean, the sale of property is a legal purpose. [00:02:39] Speaker 04: If I can ask a variant of Judge Smith's question. [00:02:43] Speaker 04: Putting aside the question of affirmative defense or not affirmative defense, did you ever tell the district court that the unjust enrichment remedy is barred because there was no [00:03:02] Speaker 04: because there was a contract. [00:03:04] Speaker 04: Did you ever tell the judge this? [00:03:05] Speaker 03: No, Your Honor, and the issue was the unjust and regiment was tethered to the breach of fiduciary duty and so forth. [00:03:11] Speaker 04: But the exact argument that you made in your brief [00:03:14] Speaker 04: on this point was never presented expressly or implicitly to the district court. [00:03:19] Speaker 03: That's correct, Your Honor. [00:03:20] Speaker 03: It was not raised by either party during the trial and it was only raised after the court made an implied finding that there was a contract. [00:03:28] Speaker 03: The court said that Cason agreed to transfer the property for $2.05 million, not to transfer the property for the fair market value or to transfer the property for a value to be determined later. [00:03:40] Speaker 03: This was a contract. [00:03:41] Speaker 04: But you knew there was a claim of unjust enrichment being [00:03:44] Speaker 03: We did your honor yes, and we and we argued against it a trial and we we set forth our our position in our briefs that Because it wasn't raised by the plaintiff in their in their claims for relief There was no need for us to plead it as an affirmative defense or to argue that Unjust enrichment was therefore not available because of the existence of a valid oral express agreement and I think here the the case law is pretty clear that a [00:04:13] Speaker 03: An oral agreement to transfer real property is enforceable if you have part performance, where the plaintiff sells the property, transfers the property, and the buyer doesn't pay for it. [00:04:25] Speaker 03: Under those facts, the plaintiff has a claim for breach of contract. [00:04:30] Speaker 03: Whether it's oral or written, that's an enforceable contract. [00:04:33] Speaker 02: Does it matter that real property is the subject here? [00:04:37] Speaker 03: It does with respect to the statutes of limitation as it relates to the Swiss statutes, but as it relates here, the argument was that, well, this is a contract that is a violative of the statute of frauds, but it's not. [00:04:50] Speaker 03: It falls within the exception of the statute of frauds where a plaintiff who has transferred property for a specific price to a buyer has the right under the law to sue to enforce that oral agreement. [00:05:04] Speaker 03: Now if, you know, I think that that's, the case law on that is pretty consistent and they didn't do that and one has to ask yourself why didn't they do that? [00:05:14] Speaker 03: And I think it's important to note that they didn't sue for breach of contract because the breach of contract would have been 2.05 million dollars. [00:05:22] Speaker 03: What they sought was a whole range of tort claims for breach of fiduciary duty, unjust enrichment, sounding and quasi-contract. [00:05:30] Speaker 03: They sought in their trial brief, the fair market value in 2013 of this property was $2.72 million. [00:05:39] Speaker 03: So they wanted more than the purchase price, and they wanted punitive damages, and they wanted attorney's fees that are not available on a simple oral contract for the transfer of property. [00:05:49] Speaker 03: They did so, I think. [00:05:51] Speaker 03: I think they made a strategic decision not to sue for the breach of contract, because that would limit the damages they could recover. [00:05:59] Speaker 03: I don't know for certain, because I wasn't representing the plaintiff. [00:06:03] Speaker 03: So if it's undisputed that Kasen owned the property, which it did, it's undisputed that Peter Wilde was its sole shareholder. [00:06:12] Speaker 03: He had a general power of attorney that allowed him to do anything he wanted with respect to Kasen. [00:06:18] Speaker 03: The only other asset of Cason was these were these shares in Roytex, which was a company that got some legal problems in Germany that was headed up by one of Mr. Wilde's close personal friends and business associates. [00:06:30] Speaker 03: And the NVWS was formed at the request of Mr. Wilde by Leslie Gunn. [00:06:36] Speaker 03: She was the sole member. [00:06:37] Speaker 03: She was the sole manager. [00:06:39] Speaker 03: And as such, when the two of them sitting around the dinner table with Mr. Ponder in Switzerland agreed [00:06:46] Speaker 03: that case and would sell this property to LLC of Leslie guns creation. [00:06:53] Speaker 03: Mr. wild and miss gun were acting as agents for those entities and I think that's perfectly normal in a typical contracting case. [00:07:01] Speaker 03: The the problem we've got is that [00:07:06] Speaker 03: When the district court made their finding, I believe it was 18C, that there was no contract between Kasen and Leslie Gunn, Kasen has construed that to mean that there was no contract. [00:07:22] Speaker 03: And there's no finding anywhere that says there was no contract. [00:07:26] Speaker 03: Admittedly, there's no finding that says there was a contract. [00:07:30] Speaker 03: But I think the court should look at the facts of the case that we have an identified seller, an identified buyer, an identified purchase price. [00:07:38] Speaker 03: We have a contract. [00:07:39] Speaker 03: It's an oral contract. [00:07:40] Speaker 03: And as such, unjust enrichment should not apply. [00:07:43] Speaker 01: I still have a hard time seeing how, when you've conceded that you didn't oppose the unjust enrichment [00:07:50] Speaker 01: claim below on the grounds that there was a contract remedy that you can hold that out for the first time on appeal. [00:07:57] Speaker 03: Well, but the point is there was no inkling of that at the trial level. [00:08:01] Speaker 03: The unjust enrichment wasn't tied to a breach of contract. [00:08:04] Speaker 03: The unjust enrichment wasn't tied to what I would call the quasi-contract aspects of these transactions. [00:08:10] Speaker 03: to the breach of fiduciary duty, to this conspiracy, to the other claims that they raised. [00:08:15] Speaker 03: And as such, it would not be reasonable for us as the defendants to have to then create, in essence, a tribal issue, a fact as to the unjust enrichment at the trial level. [00:08:26] Speaker 03: It was not raised by anybody. [00:08:28] Speaker 03: So I think I understand the court's concern. [00:08:31] Speaker 03: I don't think it is dispositive. [00:08:32] Speaker 01: It happens all the time. [00:08:33] Speaker 01: You're defending a claim. [00:08:34] Speaker 01: The plaintiff frames it one way. [00:08:36] Speaker 01: And then in responding to it, the defendant would say, no, actually, what this really is is something else. [00:08:43] Speaker 01: And therefore, the claim is barred. [00:08:45] Speaker 01: And you didn't do that. [00:08:46] Speaker 01: You could have raised this argument below, looking at it, and said, come on. [00:08:49] Speaker 01: What's at issue here as a contract? [00:08:51] Speaker 01: And therefore, you can't get just enrichment. [00:08:53] Speaker 01: It's not available as a remedy. [00:08:55] Speaker 01: I think that it's... This wasn't something that was some great out of left field secret. [00:09:02] Speaker 03: It was not considered at the trial level, I will say, Your Honor. [00:09:05] Speaker 03: It was something that came up after the judgment came out with respect to the 2.05 million figure. [00:09:11] Speaker 03: As I said, the plaintiffs sought the fair market value of the property in 2013 of 2.72 million, which was not consistent with the contract claim. [00:09:20] Speaker 03: It was consistent with these other tort claims that they brought. [00:09:26] Speaker 03: If I may, let me just pivot for a moment to the statute of limitations argument. [00:09:29] Speaker 03: We've argued strongly that the statute of limitations analysis by the court was incorrect. [00:09:35] Speaker 03: The court applied the factors test as opposed to a rising under test or rising in test [00:09:40] Speaker 03: But I think even under the factors test, the court should have found that Switzerland was the proper forum. [00:09:45] Speaker 04: The benefit was unquestionably not conferred in Switzerland, correct? [00:09:52] Speaker 03: No, the court said it was conferred in Switzerland. [00:09:55] Speaker 04: Where are you finding that? [00:10:00] Speaker 03: Let me grab it, Your Honor, real quick. [00:10:04] Speaker 03: What are you reading? [00:10:08] Speaker 04: I have it in front of me. [00:10:09] Speaker 04: Just tell me what you're looking at. [00:10:14] Speaker 04: I have the court's findings right in front of me. [00:10:22] Speaker 03: I thought I marked it this morning, Your Honor. [00:10:24] Speaker 03: I apologize. [00:10:30] Speaker 04: Because what I have here [00:10:32] Speaker 04: And you can correct me if I should be reading something else, ER 14, 4B, for unjust enrichment, the place where the benefit was received, Nevada. [00:10:45] Speaker 03: Right. [00:10:46] Speaker 03: Robinette 3 says the place where the act conferring the benefit or enrichment was performed. [00:10:52] Speaker 04: But the benefit was received in Nevada. [00:10:55] Speaker 04: You don't quarrel with that. [00:10:57] Speaker 03: I do. [00:10:57] Speaker 03: I don't see how a benefit could be conferred in one country and received in another country. [00:11:02] Speaker 04: You don't see how somebody [00:11:04] Speaker 04: can put a check in the mail in Zurich and the person receives it in Reno and cashes it in Reno and puts it in their bank account in Reno? [00:11:15] Speaker 03: But those aren't the facts here, Your Honor. [00:11:16] Speaker 04: No, but you just said you don't see how... I thought your statement was a general one. [00:11:22] Speaker 03: No, no. [00:11:23] Speaker 03: I'm talking about specifically here. [00:11:24] Speaker 03: The benefit was conferred by Cason [00:11:29] Speaker 03: In Switzerland, when the execution of the deed took place, it was notarized and it was given to Mr. Ponder for recording. [00:11:36] Speaker 03: And it was given to Ms. [00:11:37] Speaker 03: Gunn as NBWS in Switzerland. [00:11:40] Speaker 04: But you do not, but your view is that the court got it wrong when it said the place where the benefit was received, Nevada. [00:11:49] Speaker 03: I do. [00:11:50] Speaker 03: I believe the court, I don't see how on these facts... How was the money sent? [00:11:54] Speaker 03: I'm sorry? [00:11:55] Speaker 04: The money was sent via wire? [00:11:57] Speaker 03: That was not an issue. [00:11:59] Speaker 03: Okay, but how was it sent? [00:12:02] Speaker 03: The money was sent to Ms. [00:12:03] Speaker 03: Gunn, and that was not an issue with respect to NVWS. [00:12:08] Speaker 04: Right, and how did the money come to your client? [00:12:13] Speaker 03: Which client? [00:12:14] Speaker 03: Mrs. Gunn? [00:12:15] Speaker 04: No, through NVWS. [00:12:16] Speaker 03: It didn't go to NVWS. [00:12:18] Speaker 03: That's the whole point. [00:12:19] Speaker 03: NVWS didn't get the money. [00:12:20] Speaker 04: OK. [00:12:21] Speaker 03: So the point is what NVWS got was... So it went to Ms. [00:12:24] Speaker 04: Gunn. [00:12:24] Speaker 03: Right. [00:12:25] Speaker 04: And NVWS got the property. [00:12:27] Speaker 03: Correct. [00:12:27] Speaker 03: NVWS got the grant deed that was executed and notarized in Switzerland, handed by Cason's director with a K. This was kind of a big issue at the trial. [00:12:36] Speaker 03: Is it a director with a C or a director with a K? [00:12:38] Speaker 04: But none of the assets that your client received [00:12:41] Speaker 04: that had value were actually received in Switzerland by your client. [00:12:50] Speaker 03: Which client, Your Honor? [00:12:51] Speaker 03: Are you talking about NVWS? [00:12:53] Speaker 04: Yes, NVWS. [00:12:55] Speaker 03: NVWS received the grant deed in Switzerland. [00:12:57] Speaker 03: After it was executed and notarized in Switzerland, it was handed by Mr. Ponder to Ms. [00:13:03] Speaker 03: Gunn. [00:13:04] Speaker 03: It was subsequently recorded in California [00:13:07] Speaker 03: The mere fact that NBWS was created in the state of Nevada is the most tangential of connections to this case. [00:13:14] Speaker 01: Except that the theory of unjust enrichment is that the defendant receives a benefit and has an obligation to pay or make good, but retains it. [00:13:25] Speaker 01: So that would suggest that the place with the closest connection to that is the place where the defendant is, which is Nevada. [00:13:35] Speaker 01: The place where the defendant is at the time the benefit is conferred? [00:13:38] Speaker 01: At the time the benefit is not given over, it's unjust to retain it. [00:13:42] Speaker 01: That's the theory of unjust enrichment. [00:13:45] Speaker 01: You have been conferred a benefit, you've been enriched, and often the enrichment is a different form. [00:13:51] Speaker 01: sometimes it's earnings or whatever, and they're held in constructive trust. [00:13:57] Speaker 01: But it's the fact that the defendant has benefit and doesn't yield back benefit, and that would suggest a focus where the defendant is, and that's Nevada. [00:14:08] Speaker 03: I would argue then that California is a much more appropriate forum to look to because California is where the real property is located and where the deed was recorded. [00:14:18] Speaker 03: The mere fact that NVWS sits in a post office box someplace in Reno for the single purpose of being registered here does not make it a, it makes it a Nevada citizen legally but it has no operations here. [00:14:30] Speaker 03: All of its rents are collected in [00:14:32] Speaker 03: California. [00:14:33] Speaker 03: They're paid in California. [00:14:34] Speaker 04: Are you arguing the judge got it wrong when it said that the principal place of business was in Nevada? [00:14:38] Speaker 03: No. [00:14:39] Speaker 03: No, the principal place of business of MBWS is undoubtedly Nevada. [00:14:43] Speaker 03: It is a registered Nevada LLC, Your Honor. [00:14:45] Speaker 03: I'm not disputing that. [00:14:46] Speaker 04: I'm just saying that under the... Well, I mean, it could be incorporated in Nevada with its principal place of business in California or Switzerland or somewhere else, but you're not quarreling that its principal place of business was Nevada. [00:14:58] Speaker 03: My understanding is at the time of the trial, NVWS had one piece of property as its sole asset, and that was the house in Woodside. [00:15:06] Speaker 03: So I think that, again, the [00:15:09] Speaker 03: We argue that the court got it wrong when it looked at the Section 221 versus Section 142. [00:15:16] Speaker 03: Section 221 talks about the analysis of what is closest to unjust enrichment. [00:15:22] Speaker 03: The court looked at that for restitution and then followed that with this factor test. [00:15:26] Speaker 03: Argument was that Section 142, which specifically talks about statute of limitations, says that you should look to where the transaction occurred. [00:15:35] Speaker 03: the court found that the transaction occurred in Switzerland. [00:15:37] Speaker 03: The parties were all in Switzerland at the time the agreement was reached. [00:15:41] Speaker 03: The grant deed was transferred in Switzerland by a director with a K of Cason, someone who had a general power of attorney just like Peter Wild, and it was transferred to NVWS. [00:15:53] Speaker 03: I'm going to skip my plan here for just a moment. [00:15:57] Speaker 03: I want to make an apology both to the court and to [00:16:01] Speaker 03: Mr. Morris. [00:16:03] Speaker 03: There was a statement, and I think it was our third brief. [00:16:07] Speaker 03: that erroneously said that Mr. Hans Rudolf Wilde was present at the time in Switzerland that the document was executed. [00:16:16] Speaker 03: That was not what the evidence showed. [00:16:18] Speaker 03: I was not the author of that part of the brief, but I'm the one who signed it. [00:16:22] Speaker 03: That was incorrect. [00:16:23] Speaker 03: My Grandpa Tony told me, always tell the truth and fess up when you make a mistake. [00:16:27] Speaker 03: We made a mistake in that statement, Your Honor, and I don't think it affects the reasoning for the court or for this court, but I wanted to make sure that there was no [00:16:35] Speaker 03: No perception that we were trying to miss take the record. [00:16:38] Speaker 03: Now, if I could just briefly turn to the issue of the costs, save any of your time is entirely up to you. [00:16:45] Speaker 03: I say I thought I saved five, your honor. [00:16:47] Speaker 03: Did I not? [00:16:47] Speaker 02: You're well, you're down to three. [00:16:49] Speaker 02: OK, well, I'll save the rest for entirely up to you. [00:16:51] Speaker 03: Let me just quickly touch on the present. [00:16:55] Speaker 03: There's a split of authority in the Ninth Circuit over the whether a cost statute, not fees, but costs, are procedural or substantive. [00:17:01] Speaker 03: We cited several cases, some from California, some from Nevada, where it looks at it as a procedural issue. [00:17:08] Speaker 03: Kasen cited a Nevada Supreme Court case where it's quoting a federal district court case where it talks about it being substantive. [00:17:16] Speaker 03: Obviously, under IRI, procedural should be applied. [00:17:19] Speaker 03: Federal procedural should be applied in federal district courts sitting in diversity. [00:17:23] Speaker 03: procedural and substantive should be state law. [00:17:27] Speaker 03: We believe that the cost statute at issue here is a procedural statute that the court should have applied the federal rule 54, federal rules of civil procedure 54, and its original decision, which the court issued, was that costs were not to be awarded to the party. [00:17:47] Speaker 03: And that we think he had a right on that. [00:17:49] Speaker 04: It didn't say why, though, right? [00:17:51] Speaker 04: No, it didn't. [00:17:52] Speaker 04: And there's a motion that you have to and the judge said, your opponent was right, I have to. [00:18:00] Speaker 03: Yes, Mr. Morris did argue that it was required under Nevada revised statutes. [00:18:07] Speaker 03: We argue that it's not, that it is a procedural rule, not a substantive rule. [00:18:13] Speaker 03: Admittedly, there's a split of authority in the Ninth Circuit. [00:18:15] Speaker 03: There are other circuits that find clearly that federal law [00:18:18] Speaker 03: our federal procedural law should predominate in this area when you're sitting in diversity. [00:18:24] Speaker 03: We think this court should decide that issue. [00:18:26] Speaker 03: It shouldn't be a decision for the Nevada courts. [00:18:28] Speaker 03: It shouldn't be a decision for the California courts. [00:18:30] Speaker 03: It should be a decision for this court to say once and for all, is a cost statute a procedural issue or a substantive issue? [00:18:41] Speaker 03: And we believe that it is procedural. [00:18:42] Speaker 03: And as such, the cost award should not have been made. [00:18:45] Speaker 03: The motion to retax should not have been granted. [00:18:48] Speaker 03: In summary, we think that we didn't waive the issue of breach of contract, precluding unjust enrichment because it wasn't raised at the trial court level or in any of the pleadings or any of the pre-trial issues with the court. [00:19:04] Speaker 03: We believe that the statute limitation should have been found based on Switzerland's one-year statute. [00:19:10] Speaker 03: The important thing there is the criminal statute, I think it's 138, makes no mention of unjust enrichment. [00:19:17] Speaker 03: It talks about [00:19:18] Speaker 03: property is not a real property. [00:19:21] Speaker 03: It's not a real property. [00:19:24] Speaker 04: It's keeping and receiving property improperly movable property. [00:19:29] Speaker 04: Certainly real estate is not movable property and that's [00:19:36] Speaker 04: There is none. [00:19:37] Speaker 04: Well, whether there is or isn't, there's nothing in the record. [00:19:40] Speaker 03: No, there's nothing in the record. [00:19:41] Speaker 03: The record, if you look, I believe it refers to the two sections that we mentioned. [00:19:46] Speaker 04: Adjusted enrichment and movable property. [00:19:48] Speaker 03: Movable property, not real property. [00:19:49] Speaker 03: And as such, the one-year statute should have implied. [00:19:52] Speaker 03: The other thing is... If the case arose. [00:19:55] Speaker 04: Pardon? [00:19:55] Speaker 04: If the cause arose in Switzerland. [00:19:57] Speaker 03: Yes, exactly. [00:19:58] Speaker 03: But the other issue is [00:20:00] Speaker 03: If Kason had brought a breach of contract claim, it would not have been time barred. [00:20:05] Speaker 03: An oral contract in Nevada has four-year statute of limitations. [00:20:07] Speaker 03: They didn't do it, I believe, strategically. [00:20:10] Speaker 03: And I think as a result, this court should find that the breach of contract remedy always existed. [00:20:16] Speaker 03: That's the proper way to determine the relationship between parties in commerce. [00:20:21] Speaker 03: And as such, none Justin Richard should not have been awarded. [00:20:24] Speaker 02: Thank you. [00:20:25] Speaker 02: Thank you very much. [00:20:26] Speaker 02: All right, Mr. Maurice. [00:20:39] Speaker 00: Good morning, and may it please the court. [00:20:41] Speaker 00: I think it's best to start where Mr. Vogel left off, or at least his second argument, which is the statute of limitations argument. [00:20:49] Speaker 00: Mr. Vogel has misstated, again, the factual record. [00:20:53] Speaker 00: We dealt with this on page 31 of our second brief on appeal, footnote 10. [00:20:57] Speaker 00: Mr. Vogel has said, and they said in the briefing, that this grant deed that was executed by Mr. Ponder was delivered to NVWS [00:21:07] Speaker 00: in Switzerland. [00:21:08] Speaker 00: There's no evidence in the record to reflect that. [00:21:10] Speaker 00: In fact, when we went to trial, partially because the nature of the claims, which were fraud and conspiracy, none of the defendants wanted to admit that they had touched that deed after it was executed by Mr. Ponder. [00:21:21] Speaker 00: So when we cite in that footnote 10, we cite to the portions of the trial testimony where Mr. Ponder states that he signed that deed [00:21:28] Speaker 00: And then he provided it to either Hans Peter Wild or Hans Peter Wild's assistant. [00:21:34] Speaker 00: And then that was the last he saw of it. [00:21:36] Speaker 00: And when I tried to get the defendants to admit who had actually recorded that deed in California, nobody would take claim to that either. [00:21:45] Speaker 00: So I know for the purposes of the appellant's argument with respect to this unjust enrichment claim, they want to make it sound like this was a very formal transaction. [00:21:55] Speaker 00: there was an execution of a deed in Switzerland, delivery of that deed in Switzerland. [00:22:00] Speaker 00: The factual record just doesn't support that. [00:22:03] Speaker 00: With regard to the Nevada's borrowing statute, the judge got it absolutely right. [00:22:08] Speaker 00: It's clear that the borrowing statute only applies if the cause of action arose in another state or a foreign country and the statute of limitations in that other state or foreign country is shorter than that of Nevada's. [00:22:22] Speaker 00: Judge Mahan, I mean, he couldn't have been any clearer in his findings of fact and conclusions of law. [00:22:29] Speaker 00: It's already been a page you've looked at, page 14 in the record. [00:22:33] Speaker 00: He says point blank that the place where the benefit was received was Nevada. [00:22:38] Speaker 00: That's paragraph 4D sub 2. [00:22:41] Speaker 00: Identifies the domicile of the parties being Switzerland, which is my client, Cassun, Nevada, which is NVWS. [00:22:48] Speaker 00: And as previously noted, had already [00:22:50] Speaker 00: in the factual findings indicated that NVWS is a Nevada LLC with its principal place of business in Nevada. [00:22:57] Speaker 00: And then he proceeds to say, and this is in paragraph 6, considering the relevant contacts, Swiss law applies to those claims which arose in Switzerland, breach of fiduciary duty, aiding and abetting breach of fiduciary duty, constructive fraud, and civil conspiracy, [00:23:13] Speaker 00: and Nevada law applies to the claim which arose in Nevada unjust in Richmond. [00:23:18] Speaker 04: And as I understand your friend's briefing, they're not claiming that the district court misweighed [00:23:28] Speaker 04: they're claiming the district court never should have weighed in the first place. [00:23:32] Speaker 00: Correct. [00:23:33] Speaker 00: For us, it was a strange position to respond to because they were coming in and they were saying this was not the appropriate test to apply, but it was not dispute. [00:23:42] Speaker 04: I think it was clear what test they were saying applies, but as I looked at their briefing here, there was no challenge to the weighing just the district court as a matter of law got it wrong by conducting this 221 type weighing [00:23:58] Speaker 04: because it should have applied the borrowing statute, should have found the claim arose in Switzerland and was barred by the one-year statute of limitations. [00:24:05] Speaker 00: Right. [00:24:05] Speaker 00: And from a tactical standpoint, I could understand that if I was the appellant, the clearly erroneous standard, especially [00:24:11] Speaker 00: with some of the authority that says where you have multiple, you know, it's at the Hinkson case where you have multiple possible decisions. [00:24:19] Speaker 00: As long as the court picks one of the possible decisions, the Ninth Circuit's not going to come in and substitute its judgment in the place of the district court. [00:24:28] Speaker 00: I mean, you read the judge's decision, he identifies, you know, Switzerland, Nevada, and California and says Nevada, the claim arose in Nevada because as you indicated, [00:24:38] Speaker 00: Your honor that is the principal place of business in the state where the party that received the unjust enrichment was benefited I In light of that. [00:24:48] Speaker 00: I didn't really understand why they were taking issue with the application of the test I thought Virtually any test that this that this court would apply or that the district court would apply would come to the same conclusion well I mean, I think your friend's point is [00:25:04] Speaker 04: we should apply the borrowing statute, we should apply the law of Switzerland and at least under what I'm reading as the translation of Article 67, the restitution on Justin Richmond claim would be clearly barred because it didn't arise within a year of when you learned of their claim. [00:25:22] Speaker 04: So I understand why they're making the argument. [00:25:26] Speaker 04: But it, again, to me, it all turns on where this arose. [00:25:29] Speaker 00: Right. [00:25:29] Speaker 00: And the factual findings that they have not attacked that underpin the decision of where it rose were. [00:25:35] Speaker 00: It's paragraph 4 of the findings of fact, defendant NVWS properties LLC is incorporated in Nevada. [00:25:41] Speaker 00: with its principal place of business in Nevada, and then you skip right to what you were looking at, Your Honor, which is on page 14 of the record, the place where the benefit was received, Nevada. [00:25:51] Speaker 00: So if NVWS is a Nevada LLC, and its principal place of business is in Nevada, and it received the benefit in Nevada, all which is uncontested on this appeal, [00:26:05] Speaker 00: Obviously the court's decision with respect to where that cause of action arose being in Nevada is correct. [00:26:12] Speaker 00: That's the that's again why it came to this. [00:26:14] Speaker 00: I [00:26:15] Speaker 00: And when we did the research, when we looked at the case law, when you talk about the possible test you could apply, whether you did it under section 221 of the second restatement, which is what the court did, or if you traced it back as this court did in, was it about 1976 in that Albertine case, and looked at the Nevada Supreme Court's decisions in 1896 and 1900 and 1924, those are all decisions where the court just said, we're going to use the location of the defendant. [00:26:43] Speaker 00: Either way. [00:26:44] Speaker 00: The location of the defendant is Nevada. [00:26:46] Speaker 00: If you use section 221 of the restatement, it's Nevada. [00:26:49] Speaker 00: Either way, the cause of action rose in Nevada. [00:26:52] Speaker 00: So that in and of itself eliminates the discussion with respect to the borrowing statute. [00:26:58] Speaker 00: With regard to the unjust enrichment claim, absolutely an argument I would love to have addressed with Judge Mahan, who heard the trial. [00:27:07] Speaker 00: If it hadn't been raised, it would have been pretty easy to address, especially because we have the court specifically finding that there was not an enforceable agreement between these parties. [00:27:18] Speaker 00: The paragraph that the appellant hangs their hat on is paragraph 16 of the findings of fact. [00:27:23] Speaker 00: That's on page 9 of the excerpts of the record. [00:27:26] Speaker 00: That sentence just says, on March 31, 2013, Hans Peter Wild agreed to give Gunn $2,100,000 so that Gunn could purchase the property from Kasoom. [00:27:38] Speaker 00: Well, that's OK. [00:27:39] Speaker 00: But Hans Peter Weill was not the plaintiff in this action. [00:27:42] Speaker 00: Kassoon was the plaintiff in this action. [00:27:44] Speaker 00: And the court went on to find, and it's on page 16 where it gets to the conclusions of law, and specifically paragraphs 16a, the property was transferred to NVWS, not gun. [00:27:56] Speaker 00: Paragraph b, there is no evidence that NVWS is gun's alter ego. [00:28:01] Speaker 00: And that even cites to an order that granted summary judgment against my client's alter ego claim. [00:28:08] Speaker 00: And then subparagraph C, there is no evidence of an enforceable contract obligating a gun to personally complete the transfer with the $2,100,000 that Hans Peterwell gave her in 2013. [00:28:20] Speaker 00: And then it cites the Nevada statute of frauds. [00:28:23] Speaker 00: In other words, it's nice for the appellant to say, oh, they could have sued in contract. [00:28:28] Speaker 00: The reality is we couldn't have sued in contract. [00:28:31] Speaker 00: One, because I don't represent Hans Peter Wilde in the claim. [00:28:34] Speaker 00: That would have had to have been a claim against Hans Peter Wilde, against Leslie Gunn, related to that $2.1 million. [00:28:40] Speaker 00: But Hans Peter Wilde never owned the property personally. [00:28:43] Speaker 04: And they had their own litigation. [00:28:45] Speaker 00: Correct. [00:28:46] Speaker 00: And I will say that. [00:28:49] Speaker 00: One of the interesting aspects of this case was Judge Mahan, I believe, has presided over five of the cases. [00:28:56] Speaker 04: And many of them seem to have my direction. [00:28:59] Speaker 00: And unfortunately, I have to tell you that there are likely more in the future, depending on the way the draw goes. [00:29:08] Speaker 00: But the reality is, in this case, and I guess I should finish up before I get to that. [00:29:12] Speaker 00: that with regard to the unjust enrichment claims specifically, not only did Judge Mahan specifically address the fact that whatever agreement existed between Hans Peter Wilde and Leslie Gunn was not enforceable as a contract under Nevada law because of the statute of frauds, the reality is that [00:29:34] Speaker 00: The case law has been misstated. [00:29:35] Speaker 00: Mr. Vogel, in the briefing here today, has started wanting to talk about express agreements. [00:29:41] Speaker 00: And he says there's no authority that says these agreements have to be in writing. [00:29:45] Speaker 00: That is absolutely untrue. [00:29:46] Speaker 00: It may be untrue. [00:29:47] Speaker 00: It may be true in California. [00:29:49] Speaker 00: I don't know. [00:29:50] Speaker 00: But in Nevada, there are two cases that are directly on point. [00:29:53] Speaker 00: One is the Lease Partners case. [00:29:56] Speaker 00: One is the Lipschee case. [00:29:58] Speaker 00: One's from 1977. [00:29:59] Speaker 00: One's from 1997. [00:30:02] Speaker 00: And it makes it very clear. [00:30:03] Speaker 00: I mean, I'll just read it. [00:30:05] Speaker 00: In the instant case, a written contract existed between Brooks Trust and Danzig Corp. [00:30:11] Speaker 00: And a written contract existed between Lease Partners and Danzig Corp. [00:30:15] Speaker 00: However, no written contract existed between Lease Partners and Brooks Trust. [00:30:20] Speaker 00: Therefore, we conclude that there was no written agreement as contemplated by either Lipschie or the 66 Amger Second and Restitution. [00:30:30] Speaker 00: And a claim for restitution, open parentheses, and unjust enrichment, close parentheses, was not barred by this group. [00:30:36] Speaker 00: And I want to, on the last point on that issue with respect to unjust enrichment, it's very rare in argument that I will direct a court to the other side's brief. [00:30:45] Speaker 00: But in this case, I have to. [00:30:47] Speaker 00: Page 25 of the opening brief in this case, the appellant was nice enough to block quote, [00:30:56] Speaker 00: Restatement third on restitution and unjust enrichment. [00:30:59] Speaker 00: This is on page 25 Section 31, which is entitled unenforce ability. [00:31:04] Speaker 00: And again, I'm just reading from the block quote sub one [00:31:07] Speaker 00: A person who renders performance under an agreement that cannot be enforced against the recipient by reason of A, indefiniteness, or B, the failure to satisfy an extrinsic requirement of enforceability such as the statute of frauds has a claim in restitution against the recipient as necessary to prevent unjust enrichment. [00:31:29] Speaker 00: That's exactly what Judge Mahan did here. [00:31:31] Speaker 00: Judge Mahan looked at this situation and I personally think he was tired of the parties. [00:31:36] Speaker 00: I seriously believe I look at this and I say, how did I not win summary judgment on this? [00:31:42] Speaker 00: How did I not win punitive damages on this? [00:31:45] Speaker 00: I think Judge Mayhem was just exhausted. [00:31:47] Speaker 00: I think he was tired of these parties. [00:31:49] Speaker 00: I think he looked at my client and says he's a billionaire many times over. [00:31:53] Speaker 00: Similarly, Ms. [00:31:54] Speaker 00: Gunn is very wealthy in her own right. [00:31:57] Speaker 00: And I think he looked at it and said, I don't want to give any of these parties anything. [00:32:00] Speaker 00: But he couldn't dispute the fact that a Swiss corporation, my client, [00:32:05] Speaker 00: had lost title to a property worth approximately $3 million and had never received the $2,050,000 that it was supposed to receive in exchange for the same. [00:32:15] Speaker 00: And meanwhile, the Nevada LLC, NVWS, in April of 2013 went from being an LLC with absolutely no assets to an LLC with a $3 million property in California and it didn't pay a penny. [00:32:28] Speaker 00: And I think so. [00:32:28] Speaker 00: Judge Mahan, I think, looked at it and said, I'm sending you all on your way, but I'm at least going to make Kassoon whole. [00:32:34] Speaker 00: And he used unjust enrichment to do it. [00:32:36] Speaker 00: I'm happy to address any questions the court has. [00:32:38] Speaker 00: I think the only thing I would say on costs is the Nevada Supreme Court in 2015 addressed it in the WPH case. [00:32:45] Speaker 04: Well, but the Nevada Supreme Court can't decide the Erie issue. [00:32:50] Speaker 00: Correct. [00:32:50] Speaker 00: The Nevada Supreme Court cannot, but I think this court's been pretty clear that in terms of in those states, such as California, where their cost recovery rules are found in the California Code of Civil Procedure, [00:33:05] Speaker 00: This court views that as a procedural rule. [00:33:08] Speaker 00: Therefore, the federal rule is going to trump California's procedural rule. [00:33:12] Speaker 00: However, certain states such as Oregon, where they may have a statute that provides for the recovery of costs with respect to certain types of claims, in that instance, the statute is considered substantive. [00:33:24] Speaker 00: So in that instance, the state statute will trump the federal rule of civil procedure. [00:33:30] Speaker 00: I think in this situation, the rule we're talking about, NRS 18.020, [00:33:35] Speaker 00: It's in Nevada revised statutes the same statute that guarantees, you know Nevadans rights with respect to all aspects of life and It's pretty clear that in this instance the Nevada legislature has indicated that litigants in Nevada who sue to recover amounts in excess of $2,500 have a substantive right to recover [00:33:55] Speaker 00: the cost that are incurred in connection with that litigation. [00:33:58] Speaker 01: It's in a title, title two, civil practice. [00:34:02] Speaker 01: Is this a substantive rule of law about the remedies available? [00:34:09] Speaker 01: It looks like it's [00:34:11] Speaker 01: in civil practice and procedure. [00:34:14] Speaker 00: I absolutely cannot dispute where it is in terms of the Nevada Revised Statutes. [00:34:20] Speaker 00: I will just say that the Nevada Supreme Court in 2015 looked at that issue and it's the Nevada Supreme Court that came out and said their interpretation of it is it's a substantive right and it wasn't just NRS 18.020 they were looking at. [00:34:34] Speaker 01: Would this be in a jury trial with the issue of Costco the jury is an element of damages? [00:34:39] Speaker 00: No, it would be handled after the fact with a submission of a bill of cost to the court. [00:34:45] Speaker 01: So then it's not an element of damages of the cause of action? [00:34:50] Speaker 01: Correct. [00:34:51] Speaker 01: then it looks like procedure. [00:34:53] Speaker 01: If it is an element of the cause of action's damages, and there are rare cases, sometimes in the insurance context, where attorney's fees are actually part of the damages, and then it's handled differently and it has to go to the jury. [00:35:08] Speaker 01: But if it's not an element of the damages recovery that has to go to the trier of fact, but is something that's done as a housekeeping matter by the court afterwards, [00:35:19] Speaker 01: It certainly looks like procedure and under eerie federal law controls and it's governed by 1920 and 54 D. Well, I will tell you as a practitioner in Nevada, we would love some guidance from this court on this issue currently. [00:35:32] Speaker 00: The the appellants focused on a split among the circuit I disagree with that I think each state applies there the the Ninth Circuit applies the substance of law of each state differently But in Nevada we have a split we do have a split there is one judge Judge Navarro She has two decisions where she has found its procedural every other judge that has published opinion has found a [00:35:53] Speaker 00: When I say published, an opinion that's publicly available has found that it is a substantive right. [00:35:58] Speaker 00: So we do have a split and as a Nevada litigant, it's something we brief quite often. [00:36:02] Speaker 00: So any guidance you could give us we would appreciate. [00:36:07] Speaker 00: Any other questions I can answer for you? [00:36:09] Speaker 02: Thank you. [00:36:10] Speaker 00: Thank you very much. [00:36:11] Speaker 02: You've made up all your time, so we appreciate both counsel's argument in this interesting case. [00:36:17] Speaker 02: The case of Guessin Investment versus Ponder is submitted and the court stands adjourned for the day.