IN THE SUPREME COURT OF THE STATE OF NEVADA
CHAD STEFONICH; AND L&S AIR No. 80876
CONDITIONING AND HEATING,
Appellants,
vs. FILE
CECILIO BAUTISTA; AND ROCIO
SAAVEDRA, INDIVIDUALLY, MAY 2 7 2021
Res • ondents. ELIZABETH A BROWN
CLERK OF SUPREME COURT
BY S •\1
DEPUTV=Inti
ORDER OF REVERSAL
This is an appeal from a district court order granting attorney
fees under NRCP 68 based on a rejected offer of judgment in a personal
injury case. Eighth Judicial District Court, Clark County; Rob Bare, Judge.
Reviewing the award of attorney fees for an abuse of discretion, Gunderson
v. D.R. Horton, Inc., 130 Nev. 67, 82,
319 P.3d 606, 616 (2014), we reverse.
While driving a van in the scope of his employment with
appellant L&S Air Conditioning and Heating, appellant Chad Stefonich
rear-ended respondents Cecilio Bautista and Rocio Saavedra. Respondents
served offers of judgment on appellants in the amounts of $30,000 and
$38,000 respectively, inclusive of fees, costs, and pre-judgment interest,
which appellants rejected. The matter proceeded to trial, where
respondents prevailed, obtaining judgments of $37,261.48 and $45,075.81.
Respondents then moved for attorney fees under NRCP 68, which the
district court granted, awarding a total of $325,000 in attorney fees.
Appellants argue here that the district court misapplied Beattie
v. Thomas, 99 Nev. 579, 588-89,
668 P.2d 268, 274 (1983) (setting forth
factors that courts must evaluate when considering a fee award under
NRCP 68), because respondents failed to provide sufficient documentary
evidence in support of their fee request. We agree.
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.21- 15260
In determining whether an award of attorney fees is
appropriate under NRCP 68, the district court must weigh:
(1) whether the plaintiffs claim was brought in
good faith; (2) whether the defendant's offer of
judgment was reasonable and in good faith in both
its timing and amount; (3) whether the plaintiffs
decision to reject the offer and proceed to trial was
grossly unreasonable or in bad faith; and (4)
whether the fees sought by the offeror are
reasonable and justified in amount.
Id. When applying the fourth Beattie factor, district courts must "consider
the Brunzell factors in determining whether the requested fee amount is
reasonable and justified." MEI-GSR Holdings, LLC v. Peppermill Casinos,
Inc., 134 Nev. 235, 245,
416 P.3d 249, 258 (2018); see also Brunzell v. Golden
Gate Nat'l Bank, 85 Nev. 345, 349,
455 P.2d 31, 33 (1969) (setting forth
factors for "determining the reasonable value of an attorney's servicee).
Under NRCP 54(d)(2)(B)(v)(a), the moving party must support
their motion for attorney fees with "counsel's affidavit swearing that the
fees were actually and necessarily incurred and were reasonable." In this
instance, respondents failed to support their motion for attorney fees with
an affidavit. Absent an affidavit attesting that the requested fees were
reasonable and actually and necessarily incurred, we cannot conclude that
substantial evidence supported the district court's award as respondents
relied upon unsworn statements and unattested documents to support their
request. See Logan v. Abe, 131 Nev. 260, 266-67,
350 P.3d 1139, 1143
We reject respondents' argument that counsel's signature pursuant
1
to NRCP 11 on their motion for attorney fees fulfills the affidavit
requirement as respondents provide no authority in support of such a
contention, see Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 n.38,
130 P.3d 1280, 1288 n.38 (2006) (declining to consider issues that parties
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2
40) 1947A 4111401.
(2015) (observing that an attorney fee award must be supported by
substantial evidence). Accordingly, as respondents failed to meet their
burden under Brunzell, and likewise failed to meet their burden under
Beattie, the district court improperly awarded attorney fees. Gunderson 130
Nev. at 82, 319 P.3d at 616. Therefore, we
ORDER the judgment of the district court REVERSED.2
J.
Pick°,
Pickering
Herndon
cc: Chief Judge, Eighth Judicial District Court
Eighth Judicial District Court, Department 32
Paul M. Haire, Settlement Judge
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
Cram Valdez Brigman & Nelson
Law Office of David Sampson
Eighth District Court Clerk
failed to support by cogent argument or relevant authority), and it is
contrary to the explicit language of NRCP 54.
2Having resolved this appeal on these grounds, we decline to address
the parties remaining arguments.
3
