Moreno v. Richmond American Homes of Nev., Inc. ( 2015 )

 NRCP 59(a)(7)
A district court may grant a new, trial under NRCP 59(a)(7)
when there has been an "[e]rror in law occurring at the trial and objected
to by the party making the motion." Here, appellants did not object at
trial to the failure of Mr. Ficcadenti to provide his testimony to a
reasonable degree of scientific probability. Nor did appellants object to
respondent's failure to produce a "rebuttal soils expert." Thus, the district
court was within its discretion when it determined that those two
arguments did not warrant a new trial. Gunderson, 130 Nev., Adv. Op. 9,
319 P.3d at 611; see NRCP 59(a)(7). To the extent that appellants suggest
that these two arguments should be treated as sufficiency-of-the-evidence
arguments, we perceive no plain error or manifest injustice that would
warrant reversal, as the jury reasonably concluded that no defect existed
with respect to Issue 23.1. See Avery v. Gilliam, 97 Nev. 181, 183, 625
P.2d 1166, 1168 (1981) (recognizing that this court's review of a
sufficiency-of-the-evidence argument is limited when the appellant did not
move in district court for judgment as a matter of law).
As for appellants' argument regarding rebuttal testimony and
slab calculations, the district court permitted appellants to elicit testimony
to this effect for the purpose of calling into question Mr. Ficcadenti's repair
recommendation but not for the purpose of showing that respondent
violated the standard of care in pouring the slabs. This ruling properly
accounted for the theories of liability that were introduced in appellants'
case in chief as well as appellants' right to introduce "rebuttal" evidence.
Cf. Andrews v. Harley Davidson, Inc., 106 Nev. 533, 539, 796 P.2d 1092,
1096 (1990) ("The test for determining what constitutes rebuttal evidence
is whether the evidence offered tends to contradict new matters raised by
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the adverse party."). Additionally, the record demonstrates that
appellants were able to elicit some testimony in this respect, and
appellants have not proffered specific additional testimony that they
believe they should have been permitted to elicit. Consequently, we
cannot conclude that the district court abused its discretion, either in
framing the parameters in which appellants could elicit rebuttal
testimony, see FCH1, LLC v. Rodriguez, 130 Nev., Adv. Op. 46, 335 P.3d
183, 188 (2014) (reviewing the admission or exclusion of evidence for an
abuse of discretion), or in determining that this issue did not justify a new
trial, see Gunderson, 130 Nev., Adv. Op. 9, 319 P.3d at 611.
As for appellants' argument regarding the introduction of a
witness's deposition testimony, we agree with the district court's
determination that this testimony did not materially affect appellants'
substantial rights so as to warrant a new trial. See NRCP 59(a).
Although appellants contend that the deposition testimony was taken out
of context, they have not identified any specific instances when this
supposedly occurred or when the district court prohibited them from
curing the perceived problem. Similarly, although appellants contend that
the introduction of the deposition testimony gave the jury the impression
that respondent's counsel "had things figured out all along," a review of
the record demonstrates that this contention is speculative and does not
warrant a new trial.
NRCP 59(a)(2)
A district court may grant a new trial under NRCP 59(a)(2)
when there has been Imilsconduct of the . . . prevailing party." NRCP
59(a)(2). Appellants identify four instances in which they contend that
respondent's counsel engaged in misconduct. Having considered those
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four instances and the context in which respondent's counsel made the
statements or elicited the testimony, we are not persuaded that any of
those instances amounted to misconduct. See Gunderson, 130 Nev., Adv.
Op. 9, 319 P.3d at 611 ("Whether an attorney's comments are misconduct
is a question of law, which we review de novo ...." (quotation omitted)).
Accordingly, the district court was within its discretion in denying
appellants' motion for a new trial. Id.
Order denying motion for attorney fees
The district court denied appellants' motion for attorney fees
after concluding that appellants did not obtain a more favorable result at
trial than the offers of judgment they rejected. On appeal, appellants first
contend that the offers of judgment were invalid. Having considered
appellants' arguments in this respect, we conclude that they lack merit
and that the district court properly determined that the offers of judgment
were valid. See Pombo v. Nev. Apartment Ass'n, 113 Nev. 559, 562, 938
P.2d 725, 727 (1997) ("An offer of judgment must be unconditional and for
a definite amount in order to be valid for purposes of NRCP 68.").
Appellants next contend that the district court should have
applied the lodestar method in calculating the pre-offer attorney fees they
incurred. As stated in its order, however, the district court was willing to
apply the lodestar method but determined that it was unable to
meaningfully do so due to the lack of supporting documentation from
appellants. Cf. Gunderson, 130 Nev., Adv. Op. 9, 319 P.3d at 615 ("In a
construction defect action, the claimant generally may only recover
attorney fees and specified costs that are proximately caused by a
construction defect."). Having reviewed the record, we conclude that the
district court was within its discretion in making this determination, in
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concluding that appellants had failed to obtain a more favorable result
than the offers of judgment they rejected, and in consequently denying
appellants' motion for attorney fees. See Gunderson, 130 Nev., Adv. Op. 9,
319 P.3d at 615 ("This court generally reviews a district court's decision
awarding or denying costs or attorney fees for an abuse of discretion.").
In light of the foregoing, we
ORDER the judgment of the district court AFFIRMED.
TM A
J.
Saitt
Gibbons
Pickering
cc: Hon. Timothy C. Williams, District Judge
Stephen E. Haberfeld, Settlement Judge
Maddox, Isaacson & Cisneros, LLP
Maddox, Segerblom & Canepa, LLP
Springel & Fink
Molof & Vohl
Eighth District Court Clerk
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