IN THE SUPREME COURT OF THE STATE OF NEVADA
EFREN ISAAC SOTELO, AN No. 81015
INDIVIDUAL,
Appellant,
VS .
FILE
PHILIP MICHAEL BOUCHARD, AN JUN 1 1 2021
INDIVIDUAL,
ELIZAB A BROWN
Res ondent. CLERK OF S EME COURT
BY
DEPU
ORDER OF AFFIRMANCE
This is an appeal from a district court order awarding attorney
fees and costs. Eighth Judicial District Court, Clark County; Joanna
Kishner, Judge.'
Respondent suffered injuries in a car wreck caused by
appellant. Respondent then filed the underlying action against appellant,
the company that had employed appellant, and appellant's father, who was
the company's owner (the father and company are hereafter referred to as
the "Employer Defendante). In October 2016, a default was entered
against appellant. Then in October 2017, respondent made a joint
unapportioned offer of judgment to all three defendants for $99,000, which
was not accepted. In August 2019, respondent settled with the Employer
Defendants. Thereafter, in September 2019, a prove-up hearing was held,
after which the district court entered a default judgment holding appellant
liable for roughly $220,000 in damages to respondent.
Respondent then sought roughly $215,000 in attorney fees and
roughly $33,000 in costs against appellant based on the offer of judgment.
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
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Over appellant's objections, the district court awarded respondent roughly
$88,000 in attorney fees and roughly $32,000 in costs. This appeal
followed.2
As a threshold matter, appellant contends that the district
court acted in excess of its subject matter jurisdiction in entering the default
judgment because appellant's due process rights were violated by virtue of
respondent's complaint not sufficiently apprising appellant of his potential
liability for money damages.3 Cf. Colwell v. State, 118 Nev. 807, 812, 59
2As set forth in this disposition, the majority of appellant's arguments
on appeal were not raised in district court, and we decline to consider them
in the first instance. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52,
623
P.2d 981, 983 (1981) (A point not urged in the trial court, unless it goes to
the jurisdiction of that court, is deemed to have been waived and will not be
considered on appeal."). We reiterate that "Nile purpose for the above rule"
is not to avoid addressing meritorious arguments or to resolve appeals
based on technicalities, but rather "to prevent appellants from raising new
issues on appeal concerning which the prevailing party had no opportunity
to respond and the district court had no chance to intelligently consider
during proceedings below." Oliver v. Barrick Goldstrike Mines,
111 Nev.
1338, 1344-45,
905 P.2d 168, 172 (1995). In other words, "[a]n appeal is not
a do-over."' In re Tribune Media Co.,
626 B.R. 209, 213 (D. Del. 2021).
3It is questionable whether this court has jurisdiction to consider
appellant's challenge to the default judgment. Appellant's docketing
statement characterized the district court's order awarding attorney fees
and costs as being appealable under NRAP 3A(b)(8) as a special order
entered after final judgment, which would render the default judgment
itself an appealable final judgment, from which appellant did not timely
appeal. See NRAP 4(a)(1) ([A] notice of appeal must be filed after entry of
a written judgment or order, and no later than 30 days after the date that
written notice of entry of the judgment or order appealed from is served.");
Winston Prods. Co. v. DeBoer, 122 Nev. 517, 519,
134 P.3d 726, 728 (2006)
(This court lacks jurisdiction to consider an appeal that is filed beyond the
time allowed under NRAP 4(a)."). But because the district court's order
awarding fees and costs could arguably be construed as a final judgment,
we address the merits of appellant's challenge to the default judgment. Cf.
2
_,;
P.3d 463, 467 (2002) ([S]ubject-matter jurisdiction is not waivable, and a
court's lack of such jurisdiction can be raised for the first time on appeal.");
cf. also NRCP 54(c) (A default judgment must not differ in kind from, or
exceed in amount, what is demanded in the pleadings . . . ."). We are not
persuaded by this argument, as respondent's complaint sought damages for
medical expenses and general damages both in excess of $10,000, and
alleged that respondent suffered "severe bodily injury" as a result of the
accident. Given these requests for relief and the alleged injuries, appellant
was given adequate notice of the type and amount of damages for which he
might be liable. See Garamendi v. Golden Eagle Ins. Co., 10 Cal. Rptr. 3d
724, 735 (Ct. App. 2004) (The fact that the precise amount of the requested
damages was not specified in the complaint does not mean that the
resulting judgment necessarily resulted in a deprivation of due process of
law."); see also Jones v. St. Paul Travelers, 496 F. Supp. 2d 1079, 1086 (N.D.
Cal. 2007) (finding no due process violation where the damages awarded
were the same kind as those sought in the complaint and where the scope
of damages being sought was clear from the injuries allegedly suffered). In
light of this notice and appellant's ability to answer respondent's complaint,
appellant was afforded due process. Eureka Cty. v. Seventh Judicial Dist.
Court, 134 Nev. 275, 279,
417 P.3d 1121, 1124 (2018) (Procedural due
process requires that parties receive notice and an opportunity to be heard."
(internal quotation marks omitted)). Consequently, the district court did
not exceed its subject matter jurisdiction in entering the default judgment.
Appellant similarly contends that his due process rights were
violated with respect to the order awarding attorney fees and costs because,
Campos-Garcia v. Johnson, 130 Nev. 610, 612,
331 P.3d 890, 891 (2014)
(cautioning district courts and litigants that entering "amended
judgment[s] is often superfluous and confuses appellate jurisdiction).
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I
again, respondent's complaint did not sufficiently apprise appellant of his
potential liability for fees and costs. This argument was not raised in
district court, and appellant does not contend that the issue implicates the
district court's subject matter jurisdiction, so we decline to consider it in the
first instance on appeal.4 Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52,
623
P.2d 981, 983 (1981) ("A point not urged in the trial court, unless it goes to
the jurisdiction of that court, is deemed to have been waived and will not be
considered on appeal."); see Edwards v. Emperor'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).
Appellant next contends that respondent's offer of judgment
was invalid because it did not satisfy NRCP 68(c)(2)(A)'s requirement that
there be "a single common theory of liability against all the offeree
defendants." (Emphasis added). Appellant's contention consists of two
discrete points. Appellant's first point is that there must be a single theory
of liability, i.e., only one theory of liability, such that if respondent alleged
multiple theories of liability, respondent's offer would be invalid. This
argument was not raised in district court, and we decline to consider it in
the first instance on appeal. Old Aztec Mine, 97 Nev. at 52,
623 P.2d at 983.
4Re1ying on Hardison v. State, 84 Nev. 125,
437 P.2d 868 (1968),
appellant contends that this court must consider any constitutional
arguments raised for the first time on appeal. In the 50-plus years since
Hardison was decided, we have clarified both in the criminal and civil
context that we have the discretion to consider a constitutional argument
raised for the first time on appeal. See, e.g., Somee v. State, 124 Nev. 434,
443,
187 P.3d 152, 159 (2008); Mason v. Cuisenaire,
122 Nev. 43, 48 & n.7,
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128 P.3d 446, 449 & n.7 (2006). We decline to exercise that discretion here.
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Appellant's second point is that a common theory of liability
cannot be premised on allegations that are demonstrably false, such as in
this case where, according to appellant, it is undisputed that appellant stole
a vehicle from the Employer Defendants, such that the Employer
Defendants could not be liable under a theory of respondeat superior. We
are not persuaded by this argument, at least based on the facts of this case.
While the record does indicate that appellant was convicted of stealing the
subject vehicle (which would negate respondeat superior liability), the
record also indicates that the district court denied the Employer
Defendants summary judgment motion, which suggests that respondent's
respondeat superior theory had some evidentiary basis. Because appellant
failed to include the parties' summary judgment motion practice in his
appellate appendix, we presume that the district court found there were
questions of material fact with respect to respondeat superior liability. See
Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603,
172 P.3d 131,
135 (2007) (observing that it is an appellant's responsibility for providing
an adequate record for this court's review and that when a portion of the
record is missing, "we necessarily presume that the missing portion
supports the district court's decision"). Thus, even assuming that a common
theory of liability must be a viable theory of liability for purposes of NRCP
68(c)(2)(A), the district court would have been within its discretion in
finding that respondent satisfied that standard. See Spencer v. Klementi,
136 Nev., Adv. Op. 35,
466 P.3d 1241, 1248 (2020) (reviewing a district
court's decision to award attorney fees for an abuse of discretion); cf.
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, even if not relied upon by the district
court).
5
Appellant further contends that he was not "authorized to
decide whether to settle the claims against [all three] offereee as required
by NRCP 68(c)(2)(B). However, the record demonstrates that at the time
respondent made the offer of judgment, counsel for the Employer
Defendants insurer was also representing appellant. At the November 21,
2019, hearing, the district court asked appellant's counsel why the insurer
lacked a unity of interest amongst the three defendants that would have
prevented the insurer from accepting the offer of judgment on behalf of all
three defendants, to which counsel did not provide a meaningful response.
In light of this exchange, we cannot conclude that the district court abused
its discretion in finding that the insurer was authorized to accept the offer
of judgment on behalf of all three defendants.
Appellant further contends that the district court abused its
discretion in holding him liable for costs that respondent incurred in
litigating against the Employer Defendants. Cf. Cadle Co. v. Woods &
Erickson, LLP, 131 Nev. 114, 120,
345 P.3d 1049, 1054 (2015) (reviewing a
district court's award of costs for an abuse of discretion). In particular,
appellant contends that the district court erred in relying on Schoueweiler
v. Yancey Co., which held that a plaintiff who does not prevail against some
defendants can nevertheless recoup costs incurred in litigating against
those defendants from other defendants against whom the plaintiff did
prevail. 101 Nev. 827, 831-32,
712 P.2d 786, 789 (1985). Appellant contends
that Schoueweiler is distinguishable because the losing defendants in
Schoueweiler actively litigated the case, whereas here, appellant defaulted.
In this, appellant suggests that respondent "gam [ed] the system" by waiting
until respondent settled with the Employer Defendants to seek a default
judgment and prove-up hearing against appellant. Alternatively, appellant
contends Schoueweiler is distinguishable because "the question in
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Schoueweiler was whether costs taxed against a plaintiff by a prevailing
defendant constituted 'costs under NRS 18.020 such that the plaintiff could
then tax those costs against a losing defendant."
We are not persuaded that either contention provides a
meaningful basis for distinguishing Schoueweiler. With respect to
appellant's first contention, it is not apparent that respondent was
necessarily attempting to "gam[e] the system." As the district court
observed at the November 21, 2019, hearing, if respondent had promptly
sought a default judgment and prove-up hearing against appellant,
respondent still would have had to litigate the same damages issue against
the Employer Defendants, with whom respondent would have not yet
settled. With respect to appellant's second contention, he has not coherently
explained why a distinction should be drawn between "prevailing'
defendants and "settling' defendants that would render Schoueweiler
distinguishable, which, absent further explanation from appellant, appears
to be directly on point. See 101 Nev. at 832,
712 P.2d at 789 CBecause the
prevailing defendants . . . are allowed to tax their costs against [the
plaintiff] pursuant to NRS 18.020, these costs become costs incurred by [the
plaintiff]. Accordingly, we conclude that the costs of the prevailing
defendants may be recovered by [the plaintiff] from the losing defendants
pursuant to NRS 18.020.); see Edwards,
122 Nev. at 330 n.38,
130 P.3d at
1288 n.38. Accordingly, the district court was within its discretion in
holding appellant liable for costs that respondent incurred in litigating
against the Employer Defendants.
Appellant finally contends that the district court abused its
discretion in awarding respondent $7,625 in expert witness fees for Dr.
7
Raimundo Leon5 when respondent failed to show "that the circumstances
surrounding [his] testimony were of such necessity as to require" a fee
exceeding $1,500, as is required by NRS 18.005(5). However, appellant did
not raise this argument in district court, so we decline to consider it on
appeal. Old Aztec Mine, 97 Nev. at 52,
623 P.2d at 983. Although appellant
contends that he did raise this argument below, the portions of the record
upon which he relies contain no citation to NRS 18.005(5) and, more to the
point, indicate that appellant was amenable to the district court awarding
respondent $5,000 in fees for Dr. Leon, which is wholly inconsistent with
any argument based on NRS 18.005(5). Consistent with the foregoing, we
ORDER the judgments of the district court AFFIRMED.
.
, J.
Cadish
$ J. (AI-Pn- J
Herndon
cc: Hon. Joanna Kishner, District Judge
Kristine M. Kuzemka, Settlement Judge
Lewis Roca Rothgerber Christie LLP/Las Vegas
Shumway Van
Stephenson & Dickinson, P.C.
The Schnitzer Law Firm
Eighth District Court Clerk
5A1though appellant contends that the district court awarded $7,625
in fees for Dr. Leon, the record indicates that the district court awarded
$15,200 in fees for Dr. Leon. In any event, this discrepancy has no bearing
on our analysis of the issue.
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