IN THE SUPREME COURT OF THE STATE OF NEVADA
WILLIAM MOORE, INDIVIDUALLY; No. 83264
BRIAN LAKE, INDIVIDUALLY; AND
PANEL-IT BUILDING SYSTEMS, LLC,
Appellants, FL
vs. SEP 1 5 2022
ROBERT WHITE, INDIVIDUALLY,
Respondent.
ORDER OF AFFIRMANCE
This is an appeal from a district court final judgment in an
action for dissolution of a Nevada Limited Liability Company. Eighth
Judicial District Court, Clark County; Nancy L. Allf, Judge.'
Respondent Robert White and appellant William Moore were
50-percent managers and members of appellant Panel-It Building Systems,
LLC, which was formed to construct and install a Sensitive Compartmented
Information Facility (SCIF). On September 30, 2019, White withdrew
roughly $145,000 from Panel-It's account and resigned as Panel-It's co-
manager.2 On October 10, 2019, White filed the underlying action asserting
claims for (1) judicial dissolution of Panel-It and appointment of a receiver,
and (2) an accounting of Panel-It's assets. In response, Moore asserted
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted.
2The $145,000 represented 50 percent of the profits from the SCIF
project that Panel-It had recently completed. Upon withdrawing the funds,
White promptly placed them into his attorney's trust account.
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various counterclaims, including (1) breach of fiduciary duty, (2) breach of
contract, (3) conversion, and (4) civil RICO.
The district court appointed a receiver to wind up Panel-It's
affairs. Thereafter, the district court granted summary judgment on
White's claim for judicial dissolution, reasoning there was no evidence to
indicate that it was "reasonably practicable to carry on the business of
[Panel-It] in conformity with the articles of organization or operating
agreement."3 See NRS 86.495(1) (providing this standard for when a decree
of dissolution for a Nevada LLC is appropriate). Afterward, the receiver
submitted a final report to the district court indicating that, in order for
Panel-It to pay its creditors and close out the business, White would need
to return roughly $16,000 of the money he received from Panel-It, and
Moore would need to return roughly S57,000 that he received.
Thereafter, the district court held a bench trial on the parties'
remaining claims. Following the trial, the district court entered an order
that adopted the receiver's findings with respect to White's claim for an
accounting and that ruled against Moore on his counterclaims. The district
court also found that Moore brought those counterclaims to harass White.
Based on that finding, the district court entered a subsequent order
awarding White roughly S178,000 in attorney fees under NRS 18.010(2)(b)
3Moore does not identify anything in the record to suggest that he
opposed summary judgment on the issue of dissolution. To the extent that
he argues on appeal that dissolution was inappropriate, those arguments
are waived. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981,
983 (1981) (recognizing that this court need not consider arguments raised
for the first time on appeal).
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' •;• •4_2•••,.4
and holding Moore liable for roughly $73,000 in costs relating to the
receiver's services throughout the litigation.4
On appeal, Moore first contends that "the relief granted to
White bears no relation to the claims or affirmative defenses presented by
White." In this, Moore observes that the district court found him solely
responsible for Panel-It's $37,800 warehouse lease and roughly $110,000 in
"storage costs," which, according to Moore, "provided a backdoor to liability"
for claims that White never pleaded.
We are not persuaded that the district court committed
reversible error. First, the district court's decision to hold Moore
responsible for the warehouse lease and "storage costs" was not a "backdoor
to liability," but rather was part and parcel of its adjudication of White's
claims for dissolution and an accounting. Second, substantial evidence
supported the district court's findings that Moore should be responsible for
those amounts. See Wells Fargo Bank, N.A. v. Radecki, 134 Nev. 619, 621,
426 P.3d 593, 596 (2018) (reviewing a district court's factual findings
following a bench trial for substantial evidence and its legal conclusions de
novo); Weddell v. H20, Inc., 128 Nev. 94, 101, 271 P.3d 743, 748 (2012)
("Substantial evidence is evidence that a reasonable mind might accept as
adequate to support a conclusion." (internal quotation marks omitted)).
With regard to the warehouse lease, the district court relied on the
receiver's report, which indicated that Moore used the warehouse for his
4 Thedistrict court ordered Moore and White to pay equal amounts for
the receiver's services. The $73,000 represented the amount that White
paid and for which he sought reimbursement from Moore.
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personal affairs, as well as for conducting business for his other companies.
The receiver also indicated that Moore delayed trying to terminate the lease
even after Panel-It had completed the SCIF project and even though Panel-
It had no more projects. Accordingly, substantial evidence supports the
district court's decision to hold Moore responsible for the warehouse lease.
With regard to the "storage costs," the district court again relied on the
receiver's report, which indicated that the "storage costs" were actually
amounts that Moore withdrew from Panel-It to pay for a project (the 1212
Phase II Project) that was being undertaken by one of Moore's other
companies. Because neither Moore nor his company reimbursed Panel-It
for those "storage costs," substantial evidence supports the district court's
decision to hold Moore responsible for those costs.5
Moore next contends that the district court erred in ruling
against him for his breach-of-fiduciary-duty, breach-of-contract, and
conversion counterclaims. In particular, Moore contends that the district
court's basis for ruling against him on those claims was a finding that he
anticipatorily repudiated Panel-It's Operating Agreement even though
White never raised anticipatory repudiation as an affirmative defense. Cf.
Whealon v. Sterling, 121 Nev. 662, 665-66, 119 P.3d 1241, 1244 (2005) ("An
affirmative defense not raised in the pleadings is ordinarily deemed waived,
unless the opposing party is given reasonable notice and an opportunity to
respond." (internal quotation marks omitted)). We are not persuaded that
5Moore also appears to argue that his decision to use Panel-It's funds
for the 1212 Phase II Project was protected by the business judgment rule.
To the extent this argument is cogent, we conclude that it does not warrant
reversal.
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this argument demonstrates reversible error on the district court's part
because the district court also found that Moore did not suffer any damages
in light of White's withdrawal, namely: "Mr. Moore's damages cannot be the
$144,908 because that sum was accounted for as a draw and an adjustment
to Mr. White's capital account. (Ex. 72). And, those funds were Panel-It
funds, not Mr. Moore's." In other words, Moore obtained the relief he was
seeking in his three above-mentioned claims by virtue of White's
withdrawal being accounted for in Panel-It's dissolution.6 Accordingly, we
need not address whether the district court erroneously applied the doctrine
of anticipatory repudiation.7 See Saavedra-Sandoval v. Wal-Mart Stores,
Inc., 126 Nev. 592, 599, 245 P.3d 1198, 1202 (2010) (recognizing that this
court may affirm the district court on any ground supported by the record).
6Moore alleged additional damages with respect to his breach-of-
contract counterclaim in the form of excess salary that White allegedly paid
himself. However, those alleged damages are unrelated to the anticipatory
repudiation issue, and Moore does not otherwise address those damages on
appeal.
7 To the extent that Moore has suggested that Panel-It would have
remained a viable business absent White's withdrawal, Moore has not
identified any evidence in the record to indicate that he raised that as an
argument in district court, much less that he supported any such argument
with evidence of damages he or Panel-It incurred as a result of White's
withdrawal beyond the warehouse lease and "storage costs" discussed
above. See NRAP 28(a)(10)(A) (requiring a brief to contain "citations to the
authorities and parts of the record on which the appellant relies"); Edwards
v. Ernperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38
(2006) (observing that it is an appellant's responsibility to present cogent
arguments supported by salient authority).
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Moore next contends that the district court abused its discretion
in awarding attorney fees under NRS 18.010(2)(b). See Bobby Berosini, Ltd.
v. People for the Ethical Treatrnent of Anirnals, 114 Nev. 1348, 1354, 971
P.2d 383, 387 (1998) (reviewing a district court's decision to award attorney
fees under NRS 18.010(2)(b) for an abuse of discretion); see also NRCP
18.010(2)(b) (authorizing an award of attorney fees if the court finds that a
claim is "brought or maintained without reasonable ground or to harass the
prevailing party"). In particular, Moore contends that his counterclaims
were brought with reasonable grounds because they survived summary
judgment. However, the district court found that the counterclaims were
brought to harass White because (1) Moore also sued White's sons without
a factual or legal basis; (2) Moore dismissed various counterclaims on the
eve of trial, including the civil RICO counterclaim, "which required an
extensive amount of time, legal research, discovery, and preparation of
witnesses for trial"; and (3) Moore provided no evidence that he suffered any
damages. Moore does not meaningfully address these findings, other than
to suggest that he did not "maintain" the counterclaims against White's
sons or the civil RICO counterclaim because they did not go to trial. We are
not persuaded by this argument, as it has no basis in NRS 18.010(2)(b)'s
plain language ("brought or maintained . . . to harass" (emphasis added))
and ignores the district court's third finding. Accordingly, we affirm the
district court's award of attorney fees.
Moore finally makes an array of arguments regarding the
district court's award of costs relating to payments White made for the
receiver's work. However, in district court, Moore did not file a motion to
retax in response to White's memorandum of costs, so these arguments are
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waived.8 Sheehan & Sheehan v. Nelson Malley & Co., 121 Nev. 481, 493,
117 P.3d 219, 227 (2005) (recognizing that when a party fails to file a motion
to retax, the party waives appellate review of any issue that should have
been included in such a motion). Consistent with the foregoing, we
ORDER the judgment of the district court AFFIRMED.9
arraguirre
J. Sr.J.
Cadish
cc: Hon. Nancy L. Allf, District Judge
Stephen E. Haberfeld, Settlement Judge
Argentum Law
Jerimy Kirschner & Associates, P.C.
Marquis Aurbach Coffing
Eighth District Court Clerk
81n his reply brief, Moore observes that he opposed White's requested
costs in a July 29, 2021, filing that was primarily directed at opposing a
separate motion that White had filed. However, in its August 5, 2021, order
awarding costs, the district court specifically stated that "a timely motion
to retax costs was not filed" in response to White's July 15, 2021,
memorandum of costs, which was served on Moore that same day. Cf. NRS
18.110(4) (requiring a party who wishes to oppose a memorandum of costs
to file a motion to retax "[w]ithin 3 days after service of a copy of the
memorandum"). Consequently, we are not persuaded that the district court
committed reversible error in disregarding any arguments Moore made in
his July 29, 2021, filing.
9The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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