Garmong v. Rogney and Sons Constr. ( 2016 )

IN THE SUPREME COURT OF THE STATE OF NEVADA
GREGORY 0. GARMONG, No. 68255
Appellant,
vs.
ROGNEY AND SONS
CONSTRUCTION; PETER ROGNEY;
FILED
GRAHAM ROGNEY; VALLEY DOOR MAR 1 8 2016
WORKS; CHARLES GRANT; KATHY
GRANT; AND MCFARLAND DOOR
MANUFACTURING COMPANY,
Respondents.
ORDER OF AFFIRMANCE
This is an appeal from district court orders awarding attorney
fees, costs, and sanctions and from a final money judgment. Third
Judicial District Court, Lyon County; John Schlegelmilch, Judge.
Appellant challenges (1) awards of appellate attorney fees to
all respondents; (2) awards of costs to Rogney and Sons Construction and
Valley Door Works; and (3) orders imposing NRCP 11 sanctions, as
requested by McFarland Door Manufacturing Company and Valley Door
Works. We address these categories of arguments in turn.
Appellate attorney fees
Relying on NRCP 54(d)(2)(B), appellant contends that
respondents were not entitled to appellate attorney fees because they did
not file their motions requesting those fees within 20 days of when this
court entered its judgment in Docket No. 60517. Having considered this
argument, we conclude that this case does not require us to decide what
timing requirements apply when a litigant seeks appellate attorney fees
under the offer-of-judgment rule following a successful appeal. In
particular, and as the district court recognized, respondents were not
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required to re-file their motions requesting appellate attorney fees because
respondents had already filed motions to that effect, and because it was
the denial of those motions that this court reversed in respondents' cross-
appeal in Docket No. 60517 with express instructions to the district court
"to determine whether to award respondents appellate attorney fees."
Thus, the district court reasonably construed respondents' new motions as
simply supplementing their previously filed motions in order to establish
the fees they incurred in successfully litigating Docket No. 60517.
Accordingly, appellant's argument regarding NRCP 54(d)(2)(B) is
irrelevant to the facts of this case.
Appellant next contends that respondents were not entitled to
appellate attorney fees because their offers of judgment were less than a
$34,000 repair estimate that appellant had obtained when the offers were
made, which, according to appellant, made those offers "prohibited" under
NRS 40.650(4) (2003). 1 As this court previously concluded in Docket No.
60517, this argument lacks merit. NRS 40.650(4) (2003) permits an offer
of judgment to be made in a construction defect action if the offer "includes
all damages to which the claimant is entitled pursuant to NRS 40.655."
NRS 40.655(1) (2003), in turn, permits recovery of certain damages,
including "[t]he reasonable cost of any repairs," but only "to the extent
[that those damages are] proximately caused by a constructional defect."
Here, because a jury determined that no construction defects existed,
'Appellant also contends that respondents' offers were invalid
because they were ambiguous. Appellant has not identified anything in
the record to suggest that he was unable to evaluate respondents' offers
due to the purported ambiguities that he has now identified for the first
time in his reply brief nearly eight years after he rejected those offers.
Accordingly, this argument is meritless.
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appellant was not entitled under NRS 40.655(1) (2003) to the $34,0
was
reflected in his repair estimate. The $34,000 repair estimate
therefore irrelevant in comparing respondents' offers to the result
s
appellant obtained at trial. Accordingly, we affirm the district court'
awards of attorney fees.
Costs
Appellant contests a $470 award of costs to Rogney and a $565
ant
award of costs to Valley Door Works. With respect to Rogney, appell
contends that the award was improper because Rogney's request for costs
ate
was contained in its motion for attorney fees rather than in a separ
the
memorandum of costs. While Rogney's request did not use
that
terminology provided in NRS 18.110, appellant does not argue
s,
Rogney's motion failed to satisfy NRS 18.110's substantive requirement
ted
nor does he argue that Rogney failed to adequately document its reques
d its
costs. Thus, we are not persuaded that the district court abuse
discretion in awarding $470 in costs to Rogney. 2 Viii. Builders 96,
L.P. v.
U.S. Labs., Inc., 121 Nev. 261, 276, 112 P.3d 1082, 1092 (2005).
With respect to Valley Door Works, appellant contends that
the award was improper because Valley Door Works provided insufficient
ver,
supporting documentation. Beyond this general assertion, howe
he
appellant does not identify any particular component of the costs that
2 Appellant suggests that our rejection of his "form over substance"
t
argument in this appeal would be inconsistent with our decision in Docke
in
No. 60517 where this court purportedly adopted a similar rationale
rted
rejecting one of his arguments. Appellant did not bring this purpo
ey's
inconsistency to the district court's attention when he opposed Rogn
the
request for costs, meaning that this issue has no bearing on whether
district court acted within its discretion in awarding costs to Rogney.
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y Door
believes was inadequately documented, and our review of Valle
Journal
Works' supporting documentation reveals a Client Expense
er, as
itemizing and describing every individual cost that it sought to recov
actually
well as an affidavit from counsel attesting that those costs were
llant's
and necessarily incurred. Based on this documentation and appe
district
lack of a particularized argument, we are not persuaded that the
y Door
court abused its discretion in awarding $565 in costs to Valle
Works. 3 Id.NRCP 11 sanctions
Appellant argues that the imposition of NRCP 11 sanctions
warrant
should be reversed for four reasons: (1) his conduct did not
ns "too
sanctions, (2) McFarland and Valley Door Works filed their motio
P 11's
late," (3) McFarland and Valley Door Works violated NRC
its motion
"combination-of-motions" provision, and (4) McFarland filed
acted
"too early." As explained below, we conclude that the district court
within its discretion in imposing sanctions. Bergmann v. Boyce
, 109 Nev.
670, 676, 856 P.2d 560, 564 (1993).
With respect to appellant's first argument, we agree with the
ding
district court that appellant's attempt to recast his argument regar
ct matter
the validity of the offers of judgment as one involving subje
ved, our
jurisdiction was improper. As the district court correctly obser
valid
conclusion in Docket No. 60517 that the offers of judgment were
3 Appellant also contends that the awards of costs should be reversed
ely under
because Rogney's and Valley Door Works' requests were untim
ent lacks
NRS 18.110 and NRAP 39(c). We conclude that this argum
the same
merit, as NRS 18.110 and NRAP 39(c) are inapplicable for
requests
reason that NRCP 54(d)(2)(B) was inapplicable to respondents'
for attorney fees.
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necessarily meant that the district court had subject matter jurisdiction to
award appellate attorney fees and costs. Thus, the district court was
within its discretion in determining that appellant opposed the attorney
g
fee motions with the improper purposes of harassing respondents, causin
P
unnecessary delay, and needlessly increasing litigation costs. NRC
11(b)(1); Bergmann, 109 Nev. at 676, 856 P.2d at 564.
With respect to appellant's second and third arguments, he
has not explained why the district court was not justified in imposing
at
sanctions for his opposition to respondents' attorney fee motions, which,
the time respondents filed their NRCP 11 motions, had not been
rt
adjudicated. Nor has appellant cited to any authority that would suppo
a
the proposition that each instance of misconduct must be identified in
ent,
separate NRCP 11 motion. 4 With respect to appellant's fourth argum
we agree with the district court's conclusion that appellant waived his
right to rely on NRCP 11's safe-harbor provision by virtue of filing his
opposition to McFarland's NRCP 11 motion before the safe-harbor period
See
expired and refusing even thereafter to withdraw the motion. 5
423
Mahban v. MGM Grand Hotels, Inc., 100 Nev. 593, 596, 691 P.2d 421,
).
(1984) ("A waiver is the intentional relinquishment of a known right."
the extent that appellant believes respondents' motions for
4 To
lin-
sanctions were analogous to the situation addressed in Harris v. Frank
, any
Williamson Human Services, Inc., 97 F. Supp. 2d 892 (S.D. Ill. 2000)
y
argument to that effect is insufficiently developed for us to meaningfull
n.38,
consider. See Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330
130 P.3d 1280, 1288 n.38 (2006) (explaining that it is an appellant's
responsibility to present cogent arguments).
5 We are not persuaded by appellant's argument regarding DCR
13(3).
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Accordingly, we affirm the district court orders imposing NRCP 11
sanctions.
In light of the foregoing, we
ORDER the judgment of the district court AFFIRMED.
Hardesty
J.
cc: Hon. John Schlegelmilch, District Judge
Carl M. Hebert
Georgeson Angaran, Chtd.
Kelly R. Chase
Law Offices of Mark Wray
Third District Court Clerk
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