NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRED HOLABIRD,

Plaintiff

- Appellee,

v. DONALD KAGIN; et al.,

Defendants

- Appellants. No. 19

- 15982
D.C. No. 3:14

- cv - 00262

- HDM

- CBC

MEMORANDUM *

Appeal from the United States District Court for the District of Nevada Howard D. McKibben, District Judge, Presiding Submitted August 11, 2020 * * San Francisco, California Before: HAWKINS and CHRISTEN, Circuit Judges, and BATAILLON, ** * District Judge. Donald Kagin (hereinafter “Kagin”) appeals from the district court ’s order affirming the recommendation of the magistrate judge that Kagin breached the

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2)

.

*** The Honorable Joseph F. Bataillon, United States District Judge for the District of Nebraska, sitting by designation. 

# FILED

OCT 6 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2 19

- 15982

Settlement Agreement of the parties which resulted in an award of damages in the amount of $499,210.10 and attorney s’ fees in the amount of $101,005.00. Fred Holabird (hereinaf

ter “Holabird”) previously owned Holabird Western Americana Collections, LLC, a Nevada limited liability company (hereinafter “HWAC”). HWAC purchased, sold and auctioned numismatics and other types of
collectibles known as Americana. Holabird is recogniz ed as a leading authority in the field. In September of 2006 , Kagin approached Holabird with a business opportunity, wherein the parties would purchase and combine efforts for the sale o f rare coins, tokens and similar items. They formed Holabird Kagin A mericana, Inc. (hereinafter “ HKA ” ). Holabird became an employee and ran the business out of the
former HWAC office in Reno, Nevada. Approximately eight years later, Kagin
terminated Holabird. Kagin took the inventory, and HKA went out of business. Holabird filed suit against Kagin in May 2014. 1 After several years of litigation, the
case settled. The settlement was placed on the record and a written Settlement Agreement was executed on Feb ruary 3, 2017. Within the year, Kagin breached the agreement.

1 Somewh ere during this time period, it is alleged that Kagin overvalued material sent to HWAC and supplied material that was owned by a Dr. Gavin Awerbuch , Kagin , and Kagin’s father, with the intent to try an d deceive Holabird as to the amount and value of the ma terial being supplied. Dr. Awerbuch is a convicted felon. Dr. Awerbuch collected rare coins and the government was confiscating them when possible due to his alleged Medicare fraud and large amounts of opioid prescription s
. Kagin had sold Dr. Awerbuch o ver $7,000,000.00 in rare coins.3 19

- 15982

We “review de novo the district court’s interpretation of state contract law.” Los Angeles Lakers, Inc. v. Fed

. Ins

. Co

. , 869 F.3d 795, 800 (9th Cir. 2017) ( citing AmerisourceBergen Corp. v. Dialysist W., Inc. , 465 F.3d 946, 949 (9th Cir. 2006) )

. The construction and enforcement of s ettlement agreements are governed by the law
of the forum state. United Commercial Ins. Serv. Inc. v. Paymaster Corp. , 962 F.2d 853, 856 (9th Cir. 1992) (citati on omitted) . The S ettlement A gree ment in this case provides that it “shall be governed by and construed in accordance with the laws of the State of Nevada.” Under Nevada law , “[ a ] settlement agreement is a contract governed by general principles of contr act law.” Power Co. v. Henry , 321 P.3d 858, 863 (2014) (citation omitted)

. 1. Kagin contends the district court inappropriate ly awarded lost profit s and that the magistrate judge should have used the average

- fee formula

. At an evidentiary hearing before the magistrate judge, Holabird ’s expert Brook Maylath offered three possible scenarios for choosing the amount of lost profits. Kagin did not offer up an expert regarding Holabird’s damages. The magistrate judge
determine d that the expert’s methodology was sound and not speculative. The magistrate judge chose the lowest calculation offered by Holabird’s expert.
It is clear that Holabird was entitled to damages from lost profits as a result of
the breach. As to the measur e or extent of damages , t he Ninth Circuit has stated:

“ Once the fact of loss is thus proven, courts will not quibble over the numbers4 19

- 15982

involved, but will use a lenient approach to measurement of those damages

. ” Kissell Co. v. Gressley , 591 F.2d 47, 50 (9t h Cir. 1979 ); see also Gen

. Elec. Supply Co. v.
Mt

. Wheeler Power, Inc. , 587 P.2d 1312, 1313 (1976) (quoting Fireman’s Fund Ins.
v. Shawcross , 442 P.2d 907, 912 (1968) ) (“ The rule barring recovery of uncertain lost profits is directed against ‘uncertainty as to the existence of [profits] rather than as to measure or extent.’”). Further, Kagin made no argument regarding the testimony of Holabird’s expert in this regard, an d likewise he did not mention his proposed consignment rate
in his Proposed Finding s of Facts and Conclusions of L aw. The failure to object to expert testimony at trial generally results in a waiver of the objection on appeal. See Wilson v. Lopez , 682 Fe d. App ’ x. 579 , 580 (9th Cir. 2017)

. Again, it is clear from the evidence presented that Kagin breached the Settlement Agreement. Further, the magistrate judge and district court made a reasonable calculation for determining the
amount of lost profits. According ly , we affirm the district court ’s damages award

. 2. Kagin argues that Holabird is not entitled to attorney s ’ fees under the
Settlement Agreement. The indemnity provision limits the right to attorney s ’ fees
to those “resulting from or ari sing out of any breach of any of the representations or warranties made by them in this Agreement.” Kagin argues that the word “representation” is intended to limit the right to attorney s’ fees. Holabird, however, disagrees, arguing that “representations ” refers to any breach of any and all5 19

- 15982

representations in the Settlement Agreement. The district court correctly determined that Holabird was entitled to attorney ’s fees, given all the breaches committed by Kagin , and that the word “representation” would n ot be construed so narrowly under the Settlement Agreement

. In addition, this Court will remand to the district court for a determination of the fees incurred on this appeal. See e.g. , ([t]he Nevada Supreme Court has acknowledged that attorney fees award made pursuant to contract includes fees incurred on appeal. In re Estate & Living Trust of Miller , 216 P.3d 239, 243 (Nev. 2009) ; Mann v. Morgan Stanley Smith Barney, LLC , 215CV00217GMNPAL, 2016 WL 1254242, at *2 (D. Nev. Mar. 28, 2016) (“the fees McGregor incurred on appeal were necessary to obtaining her policy benefits, the logic of Brandt necessarily implies that they should be recoverable.”) McGregor v. Paul Revere Life Ins. Co ., 369 F.3d 1099, 1101 (9th Cir. 2004) ; Gamble v. Norths tore Partnership , 28 P.3d 286, 290 ( Ala. S.Ct. 2001) (“ The general rule in other jurisdictions is that contractual provisions providing for the allowance of attorney’s fees to the winning party are
construed to include fees incurred both at the trial level and on appea l

. ”)

. We AFFIRM the district court’s award of damages in the amount of $499,210.10 and attorney s ’ fees in the amount of $101,005.00. We REMAND the case to the district court for a determination of fees payable to Holabird on appeal.