Hesser v. Gewerter ( 2022 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
VINCENT HESSER, AN INDIVIDUAL, No. 81412
Appellant/Cross-Respondent,
vs.
HAROLD P. GEWERTER, AN FILED
INDIVIDUAL; AND HAROLD P.
GEWERTER, ESQ., LTD., A NEVADA FEB 7 2022
DOMESTIC PROFESSIONAL A. BROM
EME OU
CORPORATION,
DEPUTY LERK
Res • ondents/Cross-A ellants.
ORDER OF AFFIRMANCE
This is an appeal and cross-appeal from a post-judgment order awarding
costs and denying a motion for attorney fees in a contract dispute. Eighth
Judicial District Court, Clark County; Elizabeth Goff Gonzalez, Judge.'
Respondents/cross-appellants attorney Harold P. Gewerter and
his law firm (collectively, Gewerter) represented appellant/cross-
respondent Vincent Hesser and his businesses for several years. After their
relationship ended, Hesser sued Gewerter, seeking return of $750,000 (the
Funds) he had previously assigned to him. The district court found the
Funds were prepaid legal fees, which Gewerter earned, and this court
affirmed. Hesser v. Gewerter, No. 80057, 2021 WL 1531151 (Nev. Apr. 16,
2021) (Order of Affirmance). The district court denied Gewerter's post-
judgment motion for attorney fees and awarded Gewerter only a portion of
his requested costs. Specifically, the district court awarded Gewerter
$20,000 in expert witness fees and $5670.75 in other costs. Hesser appeals,
challenging the amount of expert fees awarded. Gewerter cross-appeals,
challenging the district court's denial of attorney fees and the amount of
expert fees and costs awarded.
SUPREME COURT 1Pursuant to NRAP 34(f)(1), we have determined that oral argument
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Addressing the expert witness fee award first, Hesser argues
that the district court abused its discretion in awarding Gewerter expert
witness fees of $20,000 because the district court did not adequately explain
its reason for awarding more than the $1500 allowed by NRS 18.005(5). See
Logan v. Abe, 131 Nev. 260, 267, 350 P.3d 1139, 1144 (2015) (reviewing a
district court award of expert witness fees for an abuse of discretion).
Gewerter argues that the district court properly considered the relevant
factors but abused its discretion in not awarding the full amount of the
expert fees requested. We disagree with both parties. The district court
found that the expert's work was thorough and helpful to the court but also
found that his fee was more than what was appropriate for the case. See
Frazier v. Drake, 131 Nev. 632, 650-51, 357 P.3d 365, 377-78 (Ct. App. 2015)
(listing factors the court should consider when determining whether to
award more than $1500 under NRS 18.005(5)). The district court also
provided further insight into the bases for its decision at the hearing on the
matter, demonstrating that it thoroughly considered the relevant factors,
including "the importance of the expert's testimony to [Gewerter,] the
degree to which the expert's opinion aided the trier of fact in deciding the
case[,] the extent and nature of the work performed by the expert," and the
reasonableness of the expert's fees. Id. Although the district court could
have elaborated on its analysis in its written order, see Capanna v. Orth,
134 Nev. 888, 896-97, 432 P.3d 726, 735 (2018), we discern no abuse of
discretion in the district court's expert fee award.
Gewerter next argues that the district court abused its
discretion when it only awarded a portion of the requested costs pursuant
to NRS 18.020. See 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). The district court found that Gewerter was not
SUPREME COURT
OF entitled to recover many of his requested costs because he failed to satisfy
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the Cadle standards. See id. at 120-21, 345 P.3d at 1054 (explaining that,
for costs to be recoverable, the moving party must demonstrate that the
requested costs were "reasonable, necessary and actually incurrefl. We
agree and conclude that the district court did not abuse its discretion when
it only awarded Gewerter costs for court reporter and process server fees,
as those are the only costs Gewerter provided "evidence enabling the court
to determine that those costs were reasonable and necessary." Id. at 121,
345 P.3d at 1054. Because Gewerter failed to demonstrate that the
remaining claimed costs were necessary or actually incurred, the district
court did not abuse its discretion in its award of costs to Gewerter. See id.
("[J]ustifying documentation must mean something more than a
memorandum of costs.").
Lastly, Gewerter argues that the district court abused its
discretion in denying the motion for attorney fees because both Hesser and
his counsel knew that Hesser's case was frivolous and brought without
reasonable grounds. See Stubbs v. Strickland, 129 Nev. 146, 152-53, 297
P.3d 326, 330 (2013) (reviewing an order refusing to award attorney fees for
an abuse of discretion). Gewerter sought attorney fees pursuant to NRS
18.010(2)(b) (authorizing the district court to award attorney fees to a
prevailing party "when the court finds that the claim . . . was brought or
maintained without reasonable ground or to harass the prevailing party"),
NRCP 11(c) (providing for sanctions for filing a frivolous claim), and NRS
7.085(1) (allowing an attorney to be personally liable for attorney fees for
bringing or maintaining an action "not well-grounded in fact or . . . not
warranted by existing law"). Having considered the record and the parties'
arguments, we are satisfied that the district court properly "examine[d] the
actual circumstances surrounding the case to determine" whether Hesser's
claims were brought or maintained without a reasonable basis. Bergmann
v. Boyce, 109 Nev. 670, 676, 856 P.2d 560, 564 (1993) (explaining the
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analysis a district court must conduct to determine whether a claim was
frivolous for purposes of awarding attorney fees), superseded by statute on
different grounds as stated in In re DISH Network Derivative Litig., 133
Nev. 438, 401 P.3d 1081 (2017). And, because the record contains
substantial evidence supporting the district court's finding that Hesser's
claims were not frivolous, we conclude that the district court did not abuse
its discretion in denying Gewerter's request for attorney fees on this basis.
See Ogawa v. Ogawa, 125 Nev. 660, 668, 221 P.3d 699, 704 (2009) (The
district court's factual findings . . . will be upheld if not clearly erroneous
and if supported by substantial evidence."). For the foregoing reasons, we
ORDER the judgment of the district court AFFIRMED.2
Parraguirre
Sr.J.
Hardesty
cc: Chief Judge, Eighth Judicial District Court
Department 11, Eighth Judicial District Court
Ara H. Shirinian, Settlement Judge
Law Offices of Byron Thomas
Harold P. Gewerter, Esq., Ltd.
Christopher M. Young, PC
Robert E. Glennen, III
Eighth District Court Clerk
2The Honorable Mark Gibbons, Senior Justice, participated in the
SUPREME COURT decision of this inatter under a general order of assignment.
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