Barbara Ann Hollier Trust v. Shack , 2015 NV 59 ( 2015 )

131 Nev., Advance Opinion 51
IN THE SUPREME COURT OF THE STATE OF NEVADA
BARBARA ANN HOLLIER TRUST; No. 63308
BARBARA ANN HOLLIER LAWSON
A/K/A BARBARA ANNE LAWSON AND
BARBARA ANNE HOLLIER,
INDIVIDUALLY AND AS A TRUSTEE
OF THE BARBARA ANN HOLLIER
TRUST; AND ACADIAN REALTY, INC.,
FILED
A NEVADA CORPORATION, AUG 0 6 2015
Appellants,
vs.
WILLIAM E. SHACK, JR.; AND BY
DEPUTY
NICOLLE JONES PARKER A/K/A
NICOLLE SHACK PARKER,
Respondents.
BARBARA ANN HOLLIER TRUST; No. 64047
BARBARA ANN HOLLIER LAWSON
A/K/A BARBARA ANNE LAWSON AND
BARBARA ANNE HOLLIER,
INDIVIDUALLY AND AS TRUSTEE OF
THE BARBARA ANN HOLLIER
TRUST; AND ACADIAN REALTY, INC.,
A NEVADA CORPORATION,
Appellants,
vs.
WILLIAM K SHACK, JR.; AND
NICOLLE JONES PARKER A/K/A
NICOLLE SHACK PARKER,
Respondents.
Consolidated appeals from a district court judgment on a jury
verdict and post-judgment orders awarding attorney fees and costs and
denying a motion for a new trial in a property action. Eighth Judicial
District Court, Clark County; Rob Bare, Judge.
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Affirmed in part and reversed in part.
Law Office of Andrew M. Leavitt and Andrew M. Leavitt and Robert F.
Purdy, Las Vegas,
for Appellants.
Gentile, Cristalli, Miller, Armeni & Savarese, PLLC, and Dominic P.
Gentile, Las Vegas; Gordon Silver and Joel Z. Schwarz, Las Vegas,
for Respondents.
BEFORE SAITTA, GIBBONS and PICKERING, JJ.
OPINION
By the Court, GIBBONS, J.:
In this case, appellants appeal from the denial of a variety of
motions and an award of costs and attorney fees to respondents. This
appeal raises one issue of first impression: whether the filing of a post-
judgment motion that tolls the time to appeal also tolls NRCP 54(d)(2)(B)'s
20-day deadline to move for attorney fees. We hold that it does. Further,
we affirm the district court on all accounts except two. We conclude that
the district court erred in finding: (1) that the $100,000 offset in
appellants' favor from the first trial was extinguished by this court's
previous order of reversal and remand; and (2) that all three appellants,
instead of just Acadian Realty, Inc., are liable for attorney fees.
Accordingly, we reverse on these two issues.
FACTS AND PROCEDURAL HISTORY
Nicolle Shack-Parker and her father, William E. Shack (the
Shacks), doing business as Kids Care Club, entered into a "Lease Option
Agreement and Contract of Sale" (the lease) with Acadian Realty, Inc.
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Under the terms of the lease, the Shacks rented a commercial property in
Las Vegas (the property) for three years. Upon execution of the lease, the
Shacks owed $100,000 for a security deposit and $100,000 in option
money. The nonrefundable $100,000 in option money acted as
consideration for Acadian Realty not selling the property during the three-
year lease and could be applied against the purchase price later if the
Shacks chose to purchase the property.
Nicolle leased the property with the intent of opening and
operating a child daycare facility, but the property needed extensive work
prior to opening. During the reconstruction, the Shacks encountered
numerous problems, which included asbestos, electrical wiring not being
up to code, and the property not being connected to the Las Vegas valley
water line. During this process, tensions between the parties rose and
reached a breaking point when, according to the Shacks, Barbara Lawson,
the owner of Acadian Realty, refused to sign documents required by the
City of Las Vegas in order for construction to be completed.
The first trial
The Shacks filed a complaint against Acadian Realty, the
Barbara Ann Haler Trust (the actual owner of the property), and
Barbara Lawson, both individually and as the trustee of the trust
(collectively referred to as Lawson). In June 2008, the parties proceeded
to trial on the Shacks' claims for breach of contract and breach of the
implied covenant of good faith and fair dealing and Lawson's
counterclaims for breach of contract, intentional misrepresentation, and
abuse of process.
Following the conclusion of the trial, but before the jury
rendered a verdict, the district court dismissed Lawson's abuse of process
claim. The jury, however, already had the verdict form, which included a
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line for damages related to the abuse of process claim. Nevertheless, the
trial judge stated that "if the jury comes back with an award on abuse of
process, it will just be stricken."
The jury awarded the Shacks damages for their breach of
contract claim and their breach of the implied covenant of good faith and
fair dealing claim. As to the counterclaims, the jury rejected Lawson's
breach of contract and intentional misrepresentation claims, but found the
Shacks liable for $105,000 for abuse of process. The jury wrote in by hand
that $100,000 of the $105,000 award was for the option money supposedly
held in an escrow account and the remaining $5,000 was for attorney fees.
During a post-trial hearing regarding the fact that the jury
wrongly awarded attorney fees and the abuse of process claim had been
dismissed as a matter of law, the district court stated:
At any rate, here's what I'm going to do. The case
is a mess. I mean truly, the case is a mess. How
it got that way the Lord only knows, but it's been a
series of one-step decisions at a time . . . . I'm
going to order that Mrs. Lawson gets the $100,000
which was required as the second payment for the
option money. She complied with her option
agreement in that she never listed the property
and it was never sold during the term of the lease,
so I'm saying just exactly what Mr. Shack said.
The money's in an account; she can pick it up
anytime she wants to. So I'm going to enforce
what he told us in sworn testimony, so the
$100,000 that's been sitting in some title company
or some escrow account somewhere in California
gets paid to Mrs. Lawson.
Additionally, the district court affirmed the damages awarded to the
Shacks and clarified that the $100,000 going to Lawson would be treated
as an offset. Both parties appealed the final judgment along with other
orders.
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The first appeal
On appeal, this court entered an order of reversal and remand.
Shack v. Barbara Ann Hollier Trust, Docket No. 53039 (Order of Reversal
and Remand, March 9,2011). The order reached two conclusions: (1) the
jury damages award amounts were not supported by the evidence, and (2)
the district court cannot accept a •verdict with interlineations on the
verdict form. Id. As to the first conclusion, this court reasoned that it
could not determine how the jury arrived at the damages figure because
there was no indication as to what comprised the jury's award. Id. Later,
this court denied a petition for rehearing but clarified that "this matter is
remanded for a new trial solely on the issue of [the Shacks'] damages
claims." Shack v. Barbara Ann Hollier Trust, Docket No. 53039 (Order
Denying Rehearing but Clarifying Order of Reversal and Remand, May 11,
2011).
The second trial
During the second jury trial, after the Shacks rested their
case, Lawson moved under Rule 50 for a directed verdict, which the
district court denied. The jury subsequently returned a verdict for
$371,400 in damages on Shack's breach of contract and breach of the
implied covenant of good faith and fair dealing claims. The jury awarded
the Shacks $147,200 on their breach of contract claim: $50,000 for the
security deposit, and $97,200 for other costs related to the business. The
jury also awarded the Shacks $224,200 on their breach of the implied
covenant of good faith and fair dealing claim: $50,000 for the security
deposit, $124,200 for rent, and $50,000 for construction settlement costs.
A number of post-trial motions followed.
Lawson first moved for judgment notwithstanding the verdict,
or alternatively a new trial, which the district court denied. Lawson then
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moved for $47,164.08 in prejudgment and post-judgment interest on the
$100,000 offset it received in the first trial. The district court denied this
motion, finding that the offset and the alleged interest were not
recoverable because this court's reversal and remand order eliminated the
$100,000 offset. Finally, Lawson moved for a new trial on its breach of
contract and abuse of process counterclaims, which the district court
denied.
The Shacks moved for costs requesting $19,214.93 in costs for
their current law firm and $4,618.51 in costs for their former law firm.
The district court awarded the Shacks' current law firm $16,217.53 in
costs and their former law firm $2,683.51 in costs, for a total of
$18,901.04. The Shacks also moved for $400,222 in attorney fees. Lawson
opposed the motion, arguing, among other things, that the Shacks were
time-barred from requesting attorney fees under NRCP 54(d)(2)(B)
because the motion for attorney fees was filed more than 20 days after the
notice of entry of judgment was served. The district court disagreed and
found the motion timely, reasoning that Lawson's motion for judgment
notwithstanding the verdict or for a new trial tolled the deadline for filing
the motion. Consequently, the district court awarded the Shacks the
entire $400,222 requested.
Lawson now brings this appeal, challenging the district court's
(1) denial of its motion for judgment notwithstanding the verdict, (2)
denial of its motion for a new trial, (3) denial of its motion for relief from
judgment, (4) denial of its motion for prejudgment and post-judgment
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interest on the offset, (5) award of costs to the Shacks, and (6) award of
attorney fees to the Shacks.'
DISCUSSION
Prior to resolving the plethora of issues presented on appeal,
we turn our attention to a narrow issue of first impression raised here:
whether the filing of a post-judgment motion that tolls the time to appeal
also tolls NRCP 54(d)(2)(B)'s 20-day deadline to move for attorney fees.
We conclude that it does.
1 Lawson also appeals from the district court's overruling of an
evidentiary objection during the Shacks' direct examination of Nicolle.
Although we conclude that the district court abused its discretion, as
explained below, the abuse was harmless. See NRCP 61. Nicolle testified
that, before signing the lease, she believed the lease would include a
$50,000 security deposit and $50,000 in option money. But the lease
clearly included a $100,000 security deposit and $100,000 in option
money. The district court deemed the testimony relevant based on its
belief that the implied covenant of good faith and fair dealing
"encompasses the full course of conduct" between parties to a contract, not
just what occurs after the execution of the contract. The implied covenant
of good faith and fair dealing, however, does not apply during the
negotiation or formation phase of a contract. See Restatement (Second) of
Contracts § 205 cmt. c (1981) ("Bad faith in negotiation, although not
within the scope of [the implied covenant of good faith and fair dealing],
may be subject to sanctions. Particular forms of bad faith in bargaining
are the subjects of rules as to capacity to contract, mutual assent and
consideration and of rules as to invalidating causes such as fraud and
duress."); see also Threshold Techs., Inc. v. United States, 117 Fed. Cl. 681,
708 (2014) ("[T]he covenant of good faith and fair dealing cannot attach
until the start of plaintiffs implied-in-fact contract with the government."
(emphasis added)). Bad faith in negotiations is covered by other concepts
like fraud, mistake, or duress. Thus, Nicolle's testimony and statements
made during negotiations are generally irrelevant as to the breach of the
implied-covenant-of-good-faith-and-fair-dealing claim. See NRS 48.025(2)
("Evidence which is not relevant is not admissible.").
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As to timing, NRCP 54(d)(2)(B) reads: "fuhiless a statute
provides otherwise, the motion [for attorney fees] must be filed no later
than 20 days after notice of entry of judgment is served .. . . The time for
filing the motion may not be extended by the court after it has expired."
Lawson argues that NRCP 54(d)(2)(B) mandates that a
prevailing party must move for attorney fees within 20 days of the entry of
judgment with no exception. Lawson asserts that the Shacks missed this
filing deadline because the notice of entry of judgment was served on
January 9, 2013, and the Shacks' filed their motion for attorney fees on
March 4, 2013.
In response, the Shacks argue that NRCP 54(d)(2)(B)'s 20-day
deadline does not begin to run until the judgment is final and appealable.
They contend that, here, the judgment was tolled when Lawson filed her
NRCP 50 and NRCP 59 motions, and thus, they had 20 days from the
resolution of those motions to file a motion for attorney fees. Further, the
Shacks contend that federal courts have adopted this approach and that it
best satisfies the purpose of NRCP 54(d)—to resolve fee disputes in a
timely manner and avoid piecemeal litigation.
In reply, Lawson argues that tolling cannot apply because the
January 9, 2013, judgment was a• final judgment. Further, Lawson
asserts that the Shacks' reliance on federal law is misplaced because
Nevada's rule contains the sentence, "[t]he time for filing a motion may
not be extended by the court after it has expired," while the federal rule
does not. Lawson also argues that tolling is impractical.
"Nevada's Rules of Civil Procedure are subject to the same
rules of interpretation as statutes." Vanguard Piping v. Eighth Judicial
Dist. Court, 129 Nev., Adv. Op. 63, 309 P.3d 1017, 1020 (2013). "Statutory
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interpretation is a question of law that we review de novo." Id. (internal
quotations omitted). "[W]hen the language of a statute is plain and
unambiguous, a court should give that language its ordinary meaning and
not go beyond it." Nev. Dep't of Corrs. v. York Claims Servs., Inc., 131
Nev., Adv. Op. 25, 348 P.3d 1010, 1013 (2015) (internal quotations
omitted). "If, however, a statute is subject to more than one reasonable
interpretation, it is ambiguous, and the plain meaning rule does not
apply." Id. (internal quotations omitted). "When a statute is ambiguous,
we construe it consistently with what reason and public policy would
indicate the Legislature intended." Id. (internal quotations omitted).
We conclude that a plain language reading of NRCP
54(d)(2)(B) does not reveal whether tolling is allowed or prohibited. Thus,
we look to reason and public policy. Additionally, we consider federal law
interpreting the Federal Rules of Civil Procedure, "because the Nevada
Rules of Civil Procedure are based in large part upon their federal
counterparts." Exec. Mgmt., Ltd. v. Ticor Title Ins. Co., 118 Nev. 46, 53, 38
P.3d 872, 876 (2002); Humphries v. Eighth Judicial Dist. Court, 129 Nev.,
Adv. Op. 85, 312 P.3d 484, 488 n.1 (2013) ("We may consult the
interpretation of a federal counterpart to a Nevada Rule of Civil Procedure
as persuasive authority.").
As pointed out by the Shacks, many federal courts have
implemented tolling under similar circumstances. Like NRCP 54(d)(2)(B),
FRCP 54(d)(2)(B) mandates that "[u]nless a statute or a court order
provides otherwise, [a] motion [for attorney fees] must, . . be filed no later
than 14 days after the entry of judgment." Faced with the same question
presented here, "whether the [FRCP] 54(d)(2)(B) time limit is tolled
pending the outcome of post-trial motions under [FRCP] 50 or [FRCP] 59,"
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the United States Court of Appeals for the Ninth Circuit determined that
an "[FRCP] 54(d)(2)(B) motion for fees is timely if filed no later than 14
days after the resolution of [an FRCP] 50(b), [FRCP] 52(b) or [FRCP] 59
motion." Bailey v. Cnty. of Riverside, 414 F.3d 1023, 1025 (9th Cir. 2005).
The Ninth Circuit reasoned that these post-trial motions suspend the
finality of a district court's judgment, for appellate purposes, because the
judgment "was not appealable during the pendency of the post-trial
motions." Id. This same reasoning has been implemented by the United
States Courts of Appeals for the Second, Sixth, and Eleventh Circuits.
Weyant v. Okst, 198 F.3d 311, 314-15 (2d Cir. 1999) ("[C]ertain types of
post-judgment motions interrupt the judgment's finality because judicial
efficiency is improved by postponing appellate review of the judgment
until the District Court has had an opportunity to dispose of all motions
that seek to amend or alter what otherwise might appear to be a final
judgment, ... [but] finality is restored upon the resolution of the last of
any post-judgment motions that operated to suspend finality." (internal
quotations omitted)); Miltimore Sales, Inc. v. Int? Rectifier, Inc., 412 F.3d
685, 688 (6th Cir. 2005) ("When the district court disposes of the [FRCP]
59(e) motion, that order itself is not the 'final' judgment, nor is it itself 'an
order from which an appeal lies'; instead, the disposition of the [FRCP]
59(e) motions is an order or ruling that reinstates the finality of the
original entry of judgment and a ruling that makes the underlying
judgment appealable." (quoting FRCP 54(a))); Members First Fed. Credit
Union v. Members First Credit Union of Fla., 244 F.3d 806, 807 (11th Cir.
2001) ("A timely [FRCP] 59 motion to alter or amend judgment operates to
suspend the finality of the district court's judgment. . . .").
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Nevada's definition of a final judgment aligns with the
aforementioned federal courts' reasoning for adopting tolling We have
previously stated that, for appellate purposes, "a final judgment is one
that disposes of all the issues presented in the case, and leaves nothing for
the future consideration of the court, except for post-judgment issues such
as attorney's fees and costs." Lee v. GNLV Corp., 116 Nev. 424, 426, 996
P.2d 416, 417 (2000); see Valley Bank of Nev. v. Ginsburg, 110 Nev. 440,
445, 874 P.2d 729, 733 (1994) ("More precisely, a final, appealable
judgment is one that disposes of the issues presented in the case. . . ."
(internal quotations omitted)). Compare FRCP 54(a) ("Judgment' as used
in these rules includes a decree and any order from which an appeal lies.")
with NRCP 54(a) ("Judgment' as used in these rules includes a decree and
any order from which an appeal lies."). Thus, the reasoning from Bailey,
Weyant, Miltimore Sales, and Members First Federal applies equally here.
Accordingly, we conclude that a post-judgment motion that tolls NRAP
4(a)'s deadline to appeal also tolls NRCP 54(d)(2)(B)'s filing deadline for a
motion for attorney fees until the pending post-judgment tolling motion is
decided. See NRAP 4(a)(4) ("If a party timely files in the district court any
[Rule 50(b), Rule 52(b), or Rule 591 motions under the Nevada Rules of
Civil Procedure, the time to file a notice of appeal runs for all parties from
entry of an order disposing of the last such remaining motion. ."); AA
Primo Builders, LLC v. Washington, 126 Nev. 578, 581-85, 245 P.3d 1190,
1192-95 (2010) (discussing those motions that qualify as a motion to alter
or amend under NRCP 59(e)). 2
2 In this opinion, we consider whether a post-judgment motion that
tolls the time frame in which to appeal from a final judgment, under
continued on next page . . .
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Further, as argued by the Shacks, the adoption of tolling
aligns with Nevada's policy interests. Nevada has an interest in
"promoting judicial economy by avoiding the specter of piecemeal appellate
review." Ginsburg, 110 Nev. at 444, 874 P.2d at 733; see also Winston
Prods. Co. v. DeBoer, 122 Nev. 517, 526, 134 P.3d 726, 732 (2006)
(expressing concern for judicial economy and avoiding piecemeal
litigation). These same considerations motivated the Second Circuit to
adopt tolling See Weyant, 198 F.3d at 314 (stating that there is "a
'historic federal policy against piecemeal appeals" (quoting Curtiss-Wright
Corp. v. Gen. Elec. Co., 446 U.S. 1, 8 (1980))). The Second Circuit
reasoned that "judicial efficiency is improved by postponing appellate
review of the judgment until the District Court has had an opportunity to
dispose of all motions that seek to amend or alter what otherwise might
appear to be a final judgment." Id. (internal quotations omitted). We
recognize that both approaches that the parties argue—tolling and no
tolling—are imperfect as to judicial economy. We conclude, nevertheless,
that tolling furthers our policy against piecemeal litigation more so than
the alternative.
While we recognize that the federal rule and the Nevada rule
differ due to Nevada's inclusion of the sentence, "[t]he time for filing the
motion may not be extended by the court after it has expired," NRCP
. . . continued
NRAP 4(a), also tolls NRCP 54(d)(2)(B)'s time frame for filing a motion for
attorney fees. Nothing in this opinion affects the time frame in which a
party may begin to enforce the judgment, or seek a stay of such
enforcement, under NRCP 62.
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54(d)(2)(B), we conclude that this extra sentence has no effect on tolling.
This extra sentence prevents a district court judge from granting a litigant
a second chance at filing a motion for attorney fees if the litigant missed
the filing deadline. But tolling moves the deadline for filing a motion for
attorney fees to 20 days after the resolution of the last post-judgment
tolling motion. For example, a district court would have no need to extend
the time to file a motion for attorney fees if the motion is filed 190 days
after judgment was entered, but only 18 days after an order deciding a
Rule 50(b) motion was entered, because the motion would have been filed
within the 20-day deadline with a couple days to spare. Once the 20-day
period expires, however, the extra sentence in Nevada's statute would
then prohibit any type of extension.
Finally, we disagree with Lawson that tolling is impractical.
Lawson essentially contends that a judgment is not final until it includes
the verdict and award of attorney fees and costs. Lawson argues that
implementing this rule would allow a party to move for attorney fees after
the 30-day notice of appeal deadline expires, rendering the opposing party
unable to appeal an award of attorney fees. Along with the fact that
tolling has apparently functioned in the four aforementioned federal
circuits, which have similar appellate rules, for many years without such
problems arising, an order awarding attorney fees is "[a] special order
entered after final judgment," NRAP 3A(b)(8), and is substantively
appealable on its own. See Winston Prods., 122 Nev. at 525, 134 P.3d at
731. Thus, Lawson may appeal an award of attorney fees even after the
deadline to file a notice of appeal from the final judgment has passed.
Consequently, due to the similarity between FRCP 54(d)(2)(B)
and NRCP 54(d)(2)(B), the persuasive and applicable reasoning of the
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Second, Sixth, Ninth, and Eleventh Circuits, and our policy against
piecemeal litigation, we hold that an NRCP 54(d)(2)(B) motion for attorney
fees is timely if filed no later than 20 days after the resolution of a post-
judgment tolling motion. 3 Therefore, we conclude that the district court
did not err in finding the Shacks' motion for attorney fees timely. With
this issue of first impression resolved, we turn to the remaining issues
presented on appeal.
The district court partially erred in denying Lawson's motion for
prejudgment and post-judgment interest
The "legal operation and effect of a judgment" is a question of
law, Ormachea v. Ormachea, 67 Nev. 273, 291, 217 P.2d 355, 364 (1950),
subject to de nova review. Argentena Consol, Mining Co. v. Jolley Urga
Wirth Woodbury & Standish, 125 Nev. 527, 531, 216 P.3d 779, 782 (2009)
("Questions of law are subject to de novo review.").
The district court found that the $100,000 offset "was wholly
reversed and remanded by the Supreme Court of Nevada." We conclude,
however, that because we never explicitly addressed the $100,000 offset in
this court's March 9, 2011, and May 11, 2011, orders, the $100,000 offset
remains intact. We also conclude that the Shacks' argument that Lawson
somehow waived her right to the $100,000 offset fails. See Edwards v.
Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38
(2006) (stating that this court need not consider claims that are not
cogently argued nor supported by relevant authority).
3 Thescope of our holding includes post-judgment motions made
under NRCP 50(b), 52(b), and 59. See Bailey v. Cnty. of Riverside, 414
F.3d 1023, 1025 (9th Cir. 2005); see also NRAP 4(a)(4); AA Primo
Builders, 126 Nev. at 581-85, 245 P.3d at 1192-95.
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We further conclude that the $100,000 offset did not accrue
prejudgment or post-judgment interest. Under these facts, the sua sponte
offset was merely a $100,000 reduction of the Shacks' original verdict.
Consequently, we reverse the district court and instruct it to enter a new
judgment in which the Shacks' second verdict is reduced by this $100,000
offset without interest.
The district court partially abused its discretion in its award of attorney
fees to the Shacks
We review a district court's award of attorney fees for an
abuse of discretion. Bobby Berosini, Ltd. v. PETA, 114 Nev. 1348, 1354,
971 P.2d 383, 386 (1998). The Shacks moved for and were awarded
attorney fees under the terms of the lease. See Thomas v. City of N. Las
Vegas, 122 Nev. 82, 94, 127 P.3d 1057, 1065 (2006) (stating that attorney
fees may be provided for by statute, rule, or contract). The attorney fees
provision of the lease reads:
If either party brings an action to enforce the
terms hereof or declare rights hereunder, the
prevailing party in any such action, trial or appeal
thereon, shall be entitled to his reasonable
attorneys' fees to be paid by the losing party as
fixed by the court in the same or separate suit,
and whether or not such action is pursued to
decision or judgment.
Lawson contests the award of attorney fees on many grounds.
We agree with it on one. The district court found that Barbara Lawson
individually, the Barbara Ann Hollier Trust, and Acadian Realty, Inc.,
were all liable for the attorney fees. We conclude, however, that only
Acadian Realty, Inc., is liable for attorney fees under the lease.
Contract interpretation, "[fin the absence of ambiguity or
other factual complexities, . . . presents a question of law," which is subject
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to de novo review. Galardi ii. Naples Polaris, LLC, 129 Nev., Adv. Op. 33,
301 P.3d 364, 366 (2013) (internal quotations omitted). "The objective in
interpreting an attorney fees provision, as with all contracts, is to discern
the intent of the contracting parties." Davis v. Beling, 128 Nev., Adv. Op.
28, 278 P.3d 501, 515 (2012) (internal quotations omitted). "Traditional
rules of contract interpretation are employed to accomplish that result."
Id. (internal quotations omitted). "Therefore, the initial focus is on
whether the language of the contract is clear and unambiguous; if it is, the
contract will be enforced as written." Id.
We conclude that the lease clearly states that only a party to
the lease can be held responsible for attorney fees in an action to enforce
the lease. It is uncontested that only Acadian Realty, Inc., was a party to
the lease, and Barbara and the trust were not. Therefore, we reverse the
district court's finding that all three parties were liable for attorney fees
but affirm the attorney fees award against Acadian Realty, Inc. 4
In conclusion, along with establishing the tolling properties of
certain post-judgment motions upon NRCP 54(d)(2)(B), we affirm the
judgment of the district court in all respects with two exceptions. First,
we conclude that the $100,000 offset awarded to Lawson in the first trial
remains intact. Second, we conclude that, per the terms of the lease,
Barbara Lawson and the Barbara Ann Hollier Trust are not liable to the
4 Furthermore, we affirm the district court's denial of Lawson's
NRCP 50(b) motion for judgment as a matter of law, NRCP 59 motion for
a new trial, and NRCP 60(b) motion for relief from the judgments reached
in the first trial. We also affirm the district court's award of costs to the
Shacks.
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Shacks for the attorney fees award. Accordingly, we reverse the district
court's judgment on these two issues.
We concur:
Saitta
%IC J.
Pickering
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