131 Nev., Advance Opinion 51
IN THE SUPREME COURT OF THE STATE OF NEVADA
ROBERT LOGAN AND JAMIE LOGAN, No. 63980
HUSBAND AND WIFE,
Appellants,
vs. FILED
CALVIN J. ABE, AN INDIVIDUAL;
RON MARTINSON, AN INDIVIDUAL;
JUN 0 4 2015
AND ABE PACIFIC HEIGHTS AN
mataVemEticx5b
PROPERTIES, LLC, A FOREIGN BY
CRiF DEP Vi V-CCEIIK
LIMITED LIABILITY COMPANY,
Respondents.
Appeal from a post-judgment award of attorney fees and costs
in a personal injury action. Second Judicial District Court, Washoe
County; David A. Hardy, Judge.
Affirmed.
Wm. Patterson Cashill, Ltd., and Wm. Patterson Cashill, Reno; Bradley,
Drendel & Jeanney and William C. Jeanney, Reno,
for Appellants.
LeVangie Law Group and Jeffery C. Long, Jason A. Rose, and Michael J.
LeVangie, Carson City,
for Respondents.
BEFORE SAITTA, GIBBONS and PICKERING, JJ.
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OPINION
By the Court, SAITTA, J.:
A party who makes an unimproved-upon offer of judgment—
an offer that is more favorable to the opposing party than the judgment
ultimately rendered by the district court—is entitled to recover costs and
reasonable attorney fees incurred after making the offer of judgment.
NRS 17.115(4); NRCP 68(0(2). At issue here is (1) whether a party can
recover these expenses if they were paid by a third party on the party's
behalf, (2) whether the district court abused its discretion in the present
case by awarding attorney fees, and (3) whether the district court abused
its discretion in the present case by awarding costs in excess of $1,500 for
the fees of an expert witness that did not testify and was not deposed.
Because a party incurs an expense at the time the expense is
paid or the party "become [si legally obligated to pay it," United Services
Auto Ass'n v. Schlang, 111 Nev. 486, 490,1
894 P.2d 967, 969 (1995)
(internal quotations omitted), the party need not actually pay the expense
to have incurred it. Therefore, we hold that a party can incur an expense
even if a third party pays the expense on the party's behalf, as long as the
party would otherwise be legally obligated to pay the expense. Thus, costs
and reasonable attorney fees that a third party paid on behalf of a litigant
can be recovered under NRS 17.115(4) and NRCP 68(0(2). In addition, we
conclude that in the present case the district court did not abuse its
discretion in awarding expert witness fees in excess of $1,500 for an expert
who did not testify at trial and was not deposed.
FACTUAL AND PROCEDURAL HISTORY
Appellants Robert and Jamie Logan sued respondents Calvin
J. Abe, Abe Pacific Heights Properties, LLC (Abe Properties), and Ron
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Martinson for personal injuries that Robert Logan suffered when he was
shot by an employee of a hotel. The Logans alleged that Abe Properties
owned the hotel, Abe operated the hotel, and Martinson was the hotel's
general manager.
Before trial, Abe, Abe Properties, and Martinson made an offer
of judgment to the Logans in which they offered to pay $55,000 to settle
the Logans' claims. The record does not show that the Logans accepted
this offer, and the case proceeded to a jury trial.
After the jury returned a verdict in their favor, Abe, Abe
Properties, and Martinson made a motion for attorney fees and costs,
which had been paid by their insurer. The Logans opposed the motion.
Reasoning that Abe, Abe Properties, and Martinson were entitled to
attorney fees and costs under MRS 17.115 and NRCP 68 because the
Logans failed to improve upon their offer of judgment, the district court
awarded $71,907.50 in attorney fees and $24,812.60 in costs, including
$7,290 for the fees of an expert witness who did not testify. The Logans
now appeal the award of attorney fees and costs.
DISCUSSION
Abe, Abe Properties, and Martinson have standing to seek attorney fees
As a preliminary matter, the Logans argue that Abe, Abe
Properties, and Martinson lack standing because they did not actually pay
the attorney fees and costs.
"Standing is a question of law reviewed de novo." Arguello v.
Sunset Station, Inc., 127 Nev., Adv. Op. 29,252 P.3d 206, 208 (2011).
Under Nevada law, "a party generally has standing to assert only its own
rights and cannot raise the claims of a third party not before the court."
Beazer Homes Holding Corp. v. Eighth Judicial Dist. Court, 128 Nev.,
Adv. Op. 66, 291 P.3d 128 133 (2012). Here, Abe, Abe Properties, and
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Martinson made claims for attorney fees and costs on their own behalf and
not on behalf of another entity. Therefore, they have standing to pursue
their claim for attorney fees and costs. See id.
The district court correctly found that Abe, Abe Properties, and Martinson
are eligible to recover attorney fees and costs
The Logans argue that NRS 17.115 and NRCP 68 only allow
recovery of attorney fees and costs that a party actually pays or has a legal
duty to pay. Thus, they contend that Abe, Abe Properties, and Martinson
are not eligible to recover attorney fees and costs in this case because their
insurer paid these expenses.
"When a party's eligibility for a fee award is a matter of
statutory interpretation" or the interpretation of court rules, we review
the district court's decision de novo. In re Estate & Living Trust of Miller,
125 Nev. 550, 553,
216 P.3d 239, 241 (2009); see Casey v. Wells Fargo
Bank N.A., 128 Nev., Adv. Op. 64, 290 P.3d 265, 267 (2012) (reviewing
"legal conclusions regarding court rules" de novo).
We interpret clear and unambiguous statutes based on their
plain meaning. Cromer v. Wilson, 126 Nev. 106, 109,
225 P.3d 788, 790
(2010). "In the absence of an ambiguity, we do not resort to other sources,
such as legislative history, in ascertaining that statute's meaning."
Williams v. United Parcel Servs., 129 Nev., Adv. Op. 41, 302 P.3d 1144,
1147 (2013). Because "the rules of statutory interpretation apply to
Nevada's Rules of Civil Procedure," Webb v. Clark County School District,
125 Nev. 611, 618,
218 P.3d 1239, 1244 (2009), we interpret unambiguous
statutes, including rules of civil procedure, by their plain meaning See
Cromer, 126 Nev. at 109,
225 P.3d at 790.
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NRS 17.115 and NRCP 68 allow a party who made an unimproved-upon offer of judgment to recover certain attorney fees and costs
In relevant part, NRS 17.115(4) states:
Except as otherwise provided in this section, if a
party who rejects an offer of judgment fails to
obtain a more favorable judgment, the court:
•••
(c) Shall order the party to pay the taxable
costs incurred by the party who made the offer; and
(d) May order the party to pay to the party
who made the offer any or all of the following:
(1) A reasonable sum to cover any costs
incurred by the party who made the offer for each
expert witness whose services were reasonably
necessary to prepare for and conduct the trial of the
case.
(3) Reasonable attorney's fees incurred by
the party who made the offer for the period from
the date of service of the offer to the date of entry of
the judgment. If the attorney of the party who
made the offer is collecting a contingent fee, the
amount of any attorney's fees awarded to the
party pursuant to this subparagraph must be
deducted from that contingent fee.
(Emphases added.) In relevant part, NRCP 68(0(2) provides that if an
offeree fails to improve upon a rejected offer of judgment, "the offeree shall
pay the offeror's post-offer costs, applicable interest on the judgment from
the time of the offer to the time of entry of the judgment and reasonable
attorney's fees, if any be allowed, actually incurred by the offeror from the
time of the offer. . . ." (Emphases added.) Thus, both the statute and the
rule authorize a party who makes an offer of judgment that is not
improved upon to recover the reasonable attorney fees and costs incurred
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after the offer of judgment was made. NRS 17.115(4)(c)-(d); NRCP
68(0(2).
An expense is incurred if a party has an obligation to pay it without
regard to whether the party actually pays the expense
"An expense can only be 'incurred' when one has paid it or
become legally obligated to pay it." United Servs. Auto Ass'n v. Schlang,
111 Nev. 486, 490,
894 P.2d 967, 969 (1995) (internal quotations omitted).
While we have not directly addressed the issue of whether a party incurs
an expense that is ultimately satisfied by another party, other
jurisdictions have persuasively held that an expense can be incurred even
if it is ultimately satisfied by someone other than the party. A North
Carolina appellate court has held that a party incurs an expense if it
would have been liable to pay the expense regardless of whether a third
party had paid it. Hoffman v. Oakley, 647 S.E.2d 117, 124 (N.C. Ct. App.
2007) (interpreting "incur" in the context of an insurer's payment of an
insured's litigation expenses). Similarly, a Colorado appellate court has
held that expenses are incurred when paid on a party's behalf by its
insurer because "Wile arrangement between [a] defendant and [its]
liability insurer for the disbursement and repayment of those costs is of no
consequence." Mullins v. Kessler, 83 P.3d 1203, 1204 (Colo. App. 2003); cf.
Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639 (11th Cir. 1991)
(holding that a prevailing party may recover litigation costs without
regard to whether a third party advanced the funds for the costs); Aspen v.
Bayless, 564 So. 2d 1081, 1083 (Fla. 1990) (same). We therefore extend
Schlang and hold that a party can incur an expense that was paid on its
behalf if the party would have been liable for the expense regardless of the
third party's payment.
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NRS 17.115 and NRCP 68 allow a party to recover costs and
reasonable attorney fees that a third party paid on its behalf
NRS 17.115 and NRCP 68 each authorize a party to recover
the reasonable attorney fees and costs that it incurs after it makes an offer
of judgment that is not improved upon. NRS 17.115(4)(c)-(d); NRCP
68(0(2). Because the statutes are limited to the costs incurred rather than
the party who pays them, we therefore hold that NRS 17.115 and NRCP
68 allow a party to recover qualifying attorney fees and costs that were
paid on its behalf by a third party. Thus, Abe, Abe Properties, and
Martinson were eligible to recover the post-offer costs and reasonable
attorney fees that their insurer paid on their behalf.
The district court did not abuse its discretion by awarding attorney fees to
Abe, Abe Properties, and Martinson
The Logans argue that Abe, Abe Properties, and Martinson
are not entitled to recover attorney fees because they failed to demonstrate
that the award satisfied the factors set out in Brunzell v. Golden Gate
National Bank, 85 Nev. 345, 349,
455 P.2d 31, 33 (1969)."
We review an award of attorney fees for an abuse of discretion,
Albios v. Horizon Communities, Inc., 122 Nev. 409, 417,
132 P.3d 1022,
1027-28 (2006), and will affirm an award that is supported by substantial
evidence. See Uniroyal Goodrich Tire Co. v. Mercer, 111 Nev. 318, 324,
890 P.2d 785, 789 (1995), superseded by statute on other grounds as
discussed in RTTC Commc'ns, LLC v. Saratoga Flier, Inc., 121 Nev. 34,
41-42 & n.20, 110 P.3d 24, 29 & n.20 (2005).
'The Logans also contend that Abe, Abe Properties, and Martinson
submitted a deficient attorney's declaration with their motion for attorney
fees. This argument is without merit because the attorney's declaration
complied with NRCP 54(d)(2)(B) and NRS 53.045.
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"In determining the amount of fees to award, the [district]
court is not limited to one specific approach; its analysis may begin with
any method rationally designed to calculate a reasonable amount, so long
as the requested amount is reviewed in light of the" Brunzell factors.
Haley u. Eighth Judicial Dist. Court, 128 Nev., Adv. Op. 16, 273 P.3d 855,
860 (2012) (internal quotations omitted). While it is preferable for a
district court to expressly analyze each factor relating to an award of
attorney fees, express findings on each factor are not necessary for a
district court to properly exercise its discretion. Certified Fire Prot., Inc. v.
Precision Constr., Inc., 128 Nev., Adv. Op. 35, 283 P.3d 250, 258 (2012).
Instead, the district court need only demonstrate that it considered the
required factors, and the award must be supported by substantial
evidence. See Uniroyal Goodrich Tire, 111 Nev. at 324,
890 P.2d at 789.
Here, the district court stated in its order that it "analyzed the
fees pursuant to Beattie v. Thomas, 99 Nev. 579,
668 P.2d 268 (1983), and
Brunzell" and that "[t]he individual elements of these cases support the
discretionary award of fees and costs." Since the district court
demonstrated that it considered the Brunzell factors, its award of attorney
fees will be upheld if it is supported by substantial evidence. See Uniroyal
Goodrich Tire, 111 Nev. at 324,
890 P.2d at 789.
In the instant case, the district court issued an order awarding
$71,907.50 in attorney fees and commenting favorably on the quality of
the work performed by Abe, Abe Properties, and Martinson's attorneys.
Although the district court's order states that it considered the attorneys'
invoices, they are not included in the appellate record. Because these
invoices were omitted from the appellate record, we must presume that
they support the district court's award of attorney fees under the Brunzell
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factors. See Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603,
172 P.3d 131, 135 (2007). We therefore conclude that the district court did
not abuse its discretion in awarding attorney fees.
The district court did not abuse its discretion in awarding costs to Abe, Abe
Properties, and Martinson
The Logans argue that the district court abused its discretion
by violating NRS 18.005(5) in awarding more than $1,500 in costs to Abe,
Abe Properties, and Martinson for the fees of one of their experts. As part
of this argument, they contend that the district court's award of expert
witness expenses was unwarranted because the expert witness was not
deposed and did not testify. 2 On appeal, the Logans do not dispute the
reasonableness or necessity of the fees charged by Abe, Abe Properties,
and Martinson's expert witness.
We review an award of costs for an abuse of discretion. Viii.
Builders 96, L.P. v. U.S. Labs., Inc., 121 Nev. 261, 276,
112 P.3d 1082,
1092 (2005).
NRS 18.005(5) allows the recovery of "Measonable fees of not
more than five expert witnesses in an amount of not more than $1,500 for
each witness, unless the court allows a larger fee after determining that
the circumstances surrounding the expert's testimony were of such
necessity as to require the larger fee." (Emphasis added.) See also
2 The Logans also argue that Abe, Abe Properties, and Martinson's
inconsistent cost calculations voided the award of costs. However, this
argument is without merit because it does not demonstrate that the
district court's award of costs was an abuse of discretion. See Schwartz v.
Estate of Greenspun, 110 Nev. 1042, 1051,
881 P.2d 638, 644 (1994) ("We
will not reverse an order or judgment unless error is affirmatively
shown.").
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Gilman v. State Bd. of Veterinary Med. Exam'rs, 120 Nev. 263, 272-73,
89
P.3d 1000, 1006-07 (2004) (observing that a district court has discretion to
award more than $1,500 for an expert's witness fees), disapproved of on
other grounds by Nassiri v. Chiropractic Physicians' Bd., 130 Nev., Adv.
Op. 27, 327 P.3d 487, 491 (2014). Thus, NRS 18.005(5) allows the district
court to award more than $1,500 for an expert's witness fees if the larger
fee was necessary. Furthermore, NRS 17.115(4)(d)(1) authorizes the
district court to award "[a] reasonable sum to cover any costs incurred by
the party who made the offer [of judgment] for each expert witness whose
services were reasonably necessary to prepare for and conduct the trial of
the case." (Emphasis added.)
While NRS 18.005 does not require an expert witness to
testify in order to recover fees less than $1,500, see NRS 18.005(5), the
award of the expert's fees in this case was not an abuse of discretion. See
Vill. Builders 96, L.P., 121 Nev. at 276, 112 P.3d at 1092. The district
court found that Abe, Abe Properties, and Martinson did not call their
expert witness, who was retained to rebut the Logans' expert witness,
because "[the Logans] chose on the eve of trial (or during trial) to not call"
their expert. Thus, the "circumstances surrounding the expert's
testimony," or in this case, the lack thereof, were of the Logans' creation
and "were of such necessity as to require the larger fee." NRS 18.005(5).
In addition, the district court's finding regarding the absence of Abe, Abe
Properties, and Martinson's expert's testimony shows that the award of
this expert's fees was also supported by NRS 17.115(4)(d)(1). Therefore,
the district court did not abuse its discretion in awarding costs for expert
witness fees in excess of $1,500 to Abe, Abe Properties, and Martinson.
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CONCLUSION
A party is entitled to recover certain costs and reasonable
attorney fees that it incurs after making an unimproved-upon offer of
judgment pursuant to NRS 17.115 and NRCP 68. Because a party incurs
an expense when it becomes legally obligated to pay the cost, it may
recover qualifying expenses pursuant to NRS 17.115 and NRCP 68 that
are paid by a third party on the party's behalf. Here, the district court did
not abuse its discretion in awarding attorney fees or costs to Abe, Abe
Properties, and Martinson. Therefore, we affirm the district court's award
of attorney fees and costs.
Saitta
We concur:
J.
Gibbons
J.
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