Lee v. Savalli Estates Homeowners Assoc. C/W 61613 ( 2014 )

 discovered until a neighbor notified the HOA. The HOA entered the units,
stopped the leaks, and notified appellants of the problems.
Appellants later filed suit against the HOA alleging that the
pipes were part of the common areas that the HOA was responsible for.
The HOA countersued for the cost of the repairs and for breach of the
community's Covenants, Codes, and Restrictions (CC&Rs). After a bench
trial, the district court found against appellants on their claims and in
favor of the HOA on its counterclaims. The district court subsequently
awarded attorney fees to the HOA. These appeals followed.
Beginning with the appeal from the district court judgment in
the real property action, appellants argue that the district court erred in
determining that the pipes at issue were not the HOA's responsibility
under the CC&Rs. Appellants' further contend that they had no duty to
notify the HOA because they were not occupying the unit at the time of
the flooding.'
"The rules of construction governing the interpretation of
contracts apply to the interpretation of [CC&Rs] for real property." Diaz
ix Ferne, 120 Nev. 70, 73, 84 P.3d 664, 665-66 (2004). Thus, this court
reviews the district court's legal determinations de novo, but will not
overturn its factual findings unless they are clearly erroneous and are not
'Appellants' additional argument that the orders were internally
inconsistent because it found alternative grounds to support its
determinations regarding who had the responsibility to repair the units
lacks merit. See Newport Beach Country Club, Inc. v. Founding Members
of Newport Beach Country Club, 45 Cal Rptr. 3d 207, 215 (Ct. App. 2006)
(recognizing that a trial court may make alternative grounds for its
decision and that it would be a waste of judicial resources for the appellate
court to address every alternative when an affirmance on one ground
would resolve the dispute).
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based on substantial evidence, which has been defined as evidence that a
reasonable mind might accept as adequate to support a conclusion. See
Lorenz v. Beltio, Ltd., 114 Nev. 795, 803, 963 P.2d 488, 494 (1998). Here,
the CC&R's provide that owners are responsible for maintaining and
repairing plumbing that exclusively serves individual units. The district
court found that the burst pipes in units C and D served those units
individually and substantial evidence supports that determination.
Therefore, the district court did not err in concluding that appellants, and
not the HOA, were responsible for these pipes. Id. at 803, 963 P.2d at 494.
As to unit B, while the district court made no finding as to whether
appellants or the HOA were responsible for the kitchen-feeder line, it
correctly determined that the CC&Rs required appellants to inform the
HOA of any needed repairs to the common areas. The record shows that
the feeder line was only accessible from inside the unit, and thus, only
appellants would know when it needed maintenance or repair. Therefore,
even if the line was a common area for which the HOA was responsible,
that responsibility was not triggered until the HOA was notified of the
problem. Under these circumstances, we conclude that appellants'
arguments on this point are without merit, and the district court did not
err in concluding that the HOA satisfied its duties under the CC&Rs when
it cleared the clog shortly after being notified of the problem. Id.Accordingly, we affirm the district court's judgment as to these issues.
Appellants further argue that the district court improperly
struck one of their expert witnesses. But because this expert stated that
his opinion regarding the burst pipes was not based on scientific evidence,
testing, or particularized facts, the district court concluded his testimony
would not be the "product of reliable methodology" and would not assist
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the trier of fact. See Hallmark v. Eldridge, 124 Nev. 492, 498-502, 189
P.3d 646, 650-52 (2008) (discussing the requirements for the admission of
expert testimony). We agree, and we conclude that the district court did
not abuse its discretion in striking this expert. Id. at 498, 189 P.3d at 650.
As for the appeal from the post-judgment orders awarding
attorney fees, appellants challenge the district court's award of the full
amount of attorney fees to the HOA's counterclaim counsel, arguing that
some of their work was duplicative of that performed by its separate
defense counsel, and the award of fees to defense counsel, which
appellants assert was not supported by NRS 18.010(2)(b), the sole basis
cited for that award. This court reviews an attorney fees award for an
abuse of discretion. See Kahn v. Morse & Mowbray, 121 Nev. 464, 479,
117 P.3d 227, 238 (2005). As to the counterclaim fees award, appellants
failed to specify what billing entries were duplicative in opposing the fees
request, and we will not address arguments raised for the first time on
appeal. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981,
983 (1981). Thus, we affirm this award of attorney fees. Id.Turning to the award of attorney fees to defense counsel, the
district court's order cited only NRS 18.010(2)(b) (providing for an award
of fees when a claim is "brought or maintained without reasonable ground
or to harass") as the basis for this award. Although we agree with
appellants that their claims were not so groundless and unsupported by
credible evidence to support a fees award under this statute, see Bobby
Berosini, Ltd. v. PETA, 114 Nev. 1348, 1354, 971 P.2d 383, 387 (1998), we
nonetheless affirm this award. Despite the limited basis for this award
cited in the district court order, the minutes from the hearing that yielded
that order awarded fees on all grounds relied on by the HOA, which
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included not only NRS 18.010(2)(b), but also the CC&Rs and NRS
116.4117(6). Under these circumstances and having considered the
parties arguments, we agree with the HOA that the record supports
awarding these fees to the HOA pursuant to both the CC&R's and NRS
116.4117(6). And were we to reverse this award and remand this issue to
the district court, it would undoubtedly re-award these fees to the HOA on
one or both of these bases. See Wyeth v. Rowatt, 126 Nev. „ 244
P.3d 765, 778 (2010) (providing that no error occurs if it is unlikely that a
different result would have been reached and that this court reviews such
alleged errors "in light of the entire record"). Thus, while we acknowledge
that a district court's written order generally controls over a prior oral
ruling, see Rust v. Clark Cnty. Sch. Dist., 103 Nev. 686, 688, 747 P.2d
1380, 1382 (1987) (noting that the district court is free to reconsider an
oral ruling prior to the entry of a written order), we conclude that the
seemingly inadvertent omission of these alternative grounds for awarding
attorney fees to the HOA from the order awarding attorney fees was, at
most, harmless error, and we therefore affirm the district court's decision.
See Wyeth, 126 Nev. at 244 P.3d at 778.
Accordingly, we affirm both the district court's judgment in
the HOA's favor and the separate post-judgment awards of attorney fees.
It is so ORDERED.
Ac,
Hardesty
J.
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cc: Hon. Timothy C. Williams, District Judge
Persi J. Mishel, Settlement Judge
Wright Law Group
Lewis Brisbois Bisgaard & Smith, LLP/Las Vegas
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
Eighth District Court Clerk
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