IN THE SUPREME COURT OF THE STATE OF NEVADA
TREVOR POPE, AN INDIVIDUAL, No. 81411
Appellant,
VS.
FILED
JAMES FELLHAUER; AND SHARON
FELLHAUER, HUSBAND AND WIFE,
JUL 0 9 2021
EL ieBETH A. BR
Res ondents. CLERi upREM ECCO
1W NU R T
BY
DEPUTY CLERK
ORDER AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
This appeal• challenges a default judgment in a tort action.'
Eighth Judicial District Court, Clark County; James Crockett, Judge.
Appellant argues that the district court abused its discretion by
denying his motion to set aside a default because he demonstrated "good
cause" under NRCP 55(c). Reviewing for an abuse of discretion, Landreth
v. Malik, 127 Nev. 175, 188,
251 P.3d 163, 171 (2011), we disagree.
Appellant first argues that he demonstrated good cause by showing that
respondents counsel failed to determine his intent before requesting default
as Nevada law requires. See RPC 3.5A (providing that a lawyer who knows
the identity of opposing counsel "should not take advantage of the lawyer
by causing any default or dismissal to be entered without first inquiring
about the opposing lawyer's intention to proceed); NRCP 55(c) (providing
that the district court may set aside an entry of default upon a showing of
good cause). However, the record suggests that the district court clerk filed
the entry of default as required under NRCP 55(a) because appellant failed
to defend "and that fact [was] made to appear by affidavit or otherwise."
'Pursuant to NRAP 3401), we have determined that oral argument
is not warranted.
1 - V317 gc
Because the clerk had an independent duty to file the entry of default we
conclude that respondents did not "cause" the default to be entered such
that RPC 3.5A applied.2 Moreover, RPC 3.5A applies where a party is
represented by counsel. Although the written order granting appellant's
former counsel's motion to withdraw had not been entered, the district court
had orally granted the motion and the record shows that all parties knew of
that decision. As appellant's counsel had withdrawn, RPC 3.5A did not
apply when the default was entered.
Additionally, we reject appellant's argument that his good faith
belief that his interlocutory appeal regarding the denial of his anti-SLAPP
motion to dismiss stayed all proceedings constituted good cause to set aside
the default judgment. First, Nevada law only stays discovery when a party
appeals the denial of an anti-SLAPP motion to dismiss.3 NRS 41.660(3)(e).
Second, appellant's mistaken belief does not constitute good cause when
neither the district court nor this court entered a stay of the district court
proceedings during the pendency of that appeal. And, even if appellant's
mistaken belief was in good faith, mistakes of law do not constitute
excusable neglect amounting to good cause to set aside the default. See
Intermountain Lumbar & Builders Supply, Inc. v. Glens Falls Ins. Co., 83
Nev. 126, 130,
424 P.2d 884, 886 (1967) (holding that, while good cause
under NRCP 55(c) includes excusable neglect, "it does not embrace
inexcusable neglect"); Nev. Indus. Guar. Co. v. Sturgeon,
80 Nev. 254, 258-
2The record is devoid of a motion, minutes, affidavits, or other
evidence that respondents counsel sought entry of a default while appellant
was represented by counsel.
3Because Nevada law is on point, we decline to look to California law
for guidance, as appellant requests.
2
59, 391 P.2d 862, 864 (1964) (There are many instances in which courts
have held that counseFs mistake of law, and particularly his failure to look
up the law, was not considered excusable neglect."). Based on the foregoing,
we conclude the district court did not abuse its discretion by denying
appellant's motion to set aside the default.4
We agree with appellant, however, that the default judgment
must be reversed and this case remanded to the district court. A district
court generally has the discretion to conduct a prove-up hearing under
NRCP 55(b)(2) to determine the appropriate amount of damages following
a default. See Foster v. Dingwall, 126 Nev. 56, 66,
227 P.3d 1042, 1049
(2010). However, where the default judgment under NRCP 55(b)(2) is "for
an uncertain or incalculable sum, the plaintiff must prove up damages,
supported by substantial evidence."
Id. at 66-67,
227 P.3d at 1049. The
district court here did not conduct a prove-up hearing despite the
incalculable nature of the damages respondents sought and despite
appellant's request for one. Additionally, respondents affidavit in support
of their application for default judgment claimed that they were entitled to
"damages in the principal amount of $500,000," while their application for
default judgment claimed damages in the amount of "$5,550,026.30."5
Respondents' application for default and the default judgment fail to
account for this discrepancy and fail to provide a clear basis for the damages
41n light of this decision, we also necessarily reject appellant's
argument challenging the default judgment to the extent he bases that
challenge on the premise that the district court abused its discretion in not
setting aside the underlying default. Cf. Jacobs v. Sheriff, Washoe Cty., 108
Nev. 726, 729,
837 P.2d 436, 438 (1992) (holding that a default judgment is
void where preceded by an invalid default).
5Whi1e respondents argue that the $500,000 figure addressed only one
claim, the record belies their argument.
3
ultimately awarded. Thus, we conclude that the district court abused its
discretion by failing to conduct the prove-up hearing on damages,
warranting remand. See id. at 66, 227 P.3d at 1049.
Lastly, appellant argues that the district court abused its
discretion by granting respondents attorney fees. We agree. While the
underlying facts, admitted through default, suggest egregious conduct by
appellant, the record reflects that appellant's defense in the legal
proceedings was not "maintained without reasonable ground or to harass
the prevailing party." NRS 18.010(2)(b) (allowing attorney fees "when the
court finds that the claim, counterclaim, cross-claim or third-party
complaint or defense of the opposing party was brought or maintained
without reasonable ground or to harass the prevailing party"). And, the
district court failed to identify any appropriate bases for its award in the
default judgment. Thus, we conclude that the district court abused its
discretion by granting attorney fees pursuant to NRS 18.010(2)(b). See
Thomas v. City of N. Las Vegas, 122 Nev. 82, 90,
127 P.3d 1057, 1063 (2006)
(reviewing an award of attorney fees for an abuse of discretion). The district
court also abused its discretion by awarding respondents their attorney fees
incurred in prior appellate proceedings related to appellant's anti-SLAPP
motion to dismiss.° See NRAP 38 (providing the proper instances for
°In reversing the attorney fees award, we reject respondents'
argument that we should affirm the fees award as foreseeable and
consequential damages flowing from appellant's intentional torts. The
district court did not address this issue, and we decline to resolve such
factual questions in the first instance. See Lee v. GNLV Corp., 117 Nev.
291, 296,
22 P.3d 209, 212 (2001) (recognizing that foreseeability is a
question of fact); Round Hill General Imp. Dist. v. Newman,
97 Nev. 601,
604,
637 P.2d 534, 536 (1981) (providing that appellate courts are not apt
at addressing factual issues in the first instance).
4
imposition of appellate attorney fees); see also Bobby Berosini, Ltd. v. People
for the Ethical Treatment of Animals, 114 Nev. 1348, 1356-57,
971 P.2d 383,
388 (1998) (holding that a party was not entitled to appellate attorney fees
under NRS 18.010 because the statute was silent on the issue, and that it
was not entitled to them under NRAP 38 because the appeal was not
brought in a frivolous manner). Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.7
/ , C.J.
Hardesty
the.-cstrir-7
Parraguirre
cc: Chief Judge, Eighth Judicial District Court
Department 24, Eighth Judicial District Court
Israel Kunin, Settlement Judge
Avalon Legal Group LLC
Thomson Law PC
Eighth District Court Clerk
Because we reverse the default judgment and the award of attorney
fees, we also reverse the award of costs. This order should not be read,
however, as prohibiting respondents from moving for, or the district court
from awarding, fees and costs on remand, if appropriate.
7The Honorable Mark Gibbons, Senior Justice, participated in the
SUPREME COURT
decision of this matter under a general order of assignment.
OF
NEVADA
5
(0) i94TA c411#1.
