Dane v. Geico General Ins. Co. ( 2015 )

 the district court entered judgment and granted Dane certain costs, but
the court denied his request for attorney fees. Dane appealed.'
This court reviews de novo the district court's grant of
summary judgment on the bad faith claim. Wood v. Safeway, Inc., 121
Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Insurance "[Mad faith involves
an actual or implied awareness of the absence of a reasonable basis for
denying benefits of the policy." Am. Excess Ins. Co. v. MGM Grand Hotels,
Inc., 102 Nev. 601, 605, 729 P.2d 1352, 1354-55 (1986); see also Noble v.
Nat'l Am. Life Ins. Co., 624 P.2d 866, 868 (Ariz. 1981) (applying an
objective standard). In this case, while Dane attacks GEICO's
investigations of the van's oil filter, an oil spill, the transponder key, and
the ignition lock tumblers, Dane did not challenge the other evidence
GEICO presented, which showed discrepancies revealed by its
investigation of the theft of Dane's vehicle. Based on this evidence, we
conclude that the district court did not err in granting summary judgment
to GEICO.
'Dane's joint appendix does not comply with NRAP 30(c)(1), which
requires that "[e]ach page of the appendix shall be numbered
consecutively in the lower right corner of the document." Although a joint
appendix that exceeds 250 pages must be arranged in volumes that
contain no more than 250 pages, the per-volume page limit does not alter
the requirement that the pages of the appendix as a whole must be
numbered consecutively. Here, each of the joint appendix's twelve
volumes starts at page 1, which causes unnecessary confusion. We
caution counsel that parties that do not comply with the rules concerning
briefs and appendices risk sanctions, including having their appeal
dismissed for non-compliance. Huckabay Props., Inc. v. NC Auto Parts,
LLC, 130 Nev., Adv. Op. 23, 322 P.3d 429, 434-36 (2014) (dismissal);
Thomas v. City of N. Las Vegas, 122 Nev. 82, 95-96, 127 P.3d 1057, 1066-
67 (2006) (monetary sanctions).
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As to the expert witness and discovery issues, Dane prevailed
at trial and does not argue that, had these issues been decided in his
favor, he would have received a greater recovery. Thus, because the bad
faith claim was properly decided, the issues are moot, see Personhood Nev.
v. Bristol, 126 Nev. 599, 602, 245 P.3d 572, 574 (2010), and we thus
decline to disturb these orders.
Turning to costs, costs must be reasonable, actually incurred,
and supported by receipts or other evidence. NRS 18.005; Bobby Berosini,
Ltd. v. PETA, 114 Nev. 1348, 1352-53, 971 P.2d 383,385-86 (1998). We
review a district court's award of costs for an abuse of discretion. Id. at
1352, 971 P.2d at 385. The district court awarded Dane $8,789.37 in costs,
which constitutes only a portion of his requested costs. Except for Scott
Kimbrough's expert witness deposition fee, we affirm the district court's
disposition of the cost items because Dane either did not provide receipts,
provided receipts for a lesser amount than claimed, provided only a
summary receipt, or did not prove that the costs were authorized or
reasonable and necessary under NRS 18.005. Regarding Scott
Kimbrough's expert witness fee, Kimbrough was designated as an expert
witness by GEICO and Dane incurred the fee when deposing Kimbrough.
Taking an opposing expert witness's deposition is reasonable, even when
the expert witness is not used in a later trial. See Bergmann v. Boyce, 109
Nev. 670, 679-80, 856 P.2d 560, 566 (1993). Thus, the district court
abused its discretion when it did not award Kimbrough's $975 deposition
fee. Id. Accordingly, we reverse the portion of the district court's order
concerning Kimbrough's deposition fee; Dane is entitled to an additional
$975 for Kimbrough's deposition fee, for a total costs award of $9,764.37.
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Finally, regarding attorney fees, under NRS 18.010(2)(a), a
prevailing party may be awarded attorney fees when he "has not recovered
more than $20,000." NRS 18.010(2)(a) does not contain any language
limiting the fees to those successful claims or portions of a case which an
attorney presented. 2 Thus, while a pro se party is not entitled to attorney
fees for his time, Sellers v. Fourth Judicial Dist. Court, 119 Nev. 256, 259,
71 P.3d 495, 498 (2003), a party who represented himself for a portion of
the litigation and retained an attorney for another portion is, where a
basis exists for an award, entitled to an award of the reasonable attorney
fees that he incurred. See In re Estate & Living Trust of Miller, 125 Nev.
550, 555-56, 216 P.3d 239, 243 (2009) ("An unrepresented party who
serves an offer of judgment may recover post-offer fees incurred and paid
to a lawyer who thereafter appears in the case on the offering party's
behalf."). Here, Dane prevailed on his contract claim and recovered less
than $20,000. He is therefore entitled to an award of reasonable attorney
fees. NRS 18.010(2)(a); Thomas v. City of N. Las Vegas, 122 Nev. 82,94,
127 P.3d 1057, 1065-66 (2006). Accordingly, we reverse the portion of the
district court's order denying Dane's request for attorney fees for Hansen
2 1n this regard, respondent cites to the Brunzell v. Golden Gate
National Bank factors as support for its argument that a party is not
entitled to attorney fees when the party employed an attorney part time
and the attorney did not prevail on any significant issue. 85 Nev. 345,
349, 455 P.2d 31, 33 (1969). This argument is misplaced. While it may be
germane when determining the reasonableness of attorney fees under the
Brunzell factors, see id. (indicating that one factor is the result obtained),
the Brunzell factors do not govern the initial inquiry of whether a party is
entitled to an attorney fees award. Nothing in this order is intended to
suggest that Dane's former attorneys' fees were or were not reasonable;
that is for the district court to consider in the first instance on remand.
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Rasmussen, L.L.C. and remand this matter to the district court for the
court to consider the Brunzell factors and determine what reasonable
amount of attorney fees should be awarded to Dane. 3
Accordingly, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.
ctA
Parraguirre
Douglas Cherry
cc: Hon. Joanna Kishner, District Judge
Salvatore C. Gugino, Settlement Judge
David L. Mann
Georgeson Angaran, Chtd.
Eighth District Court Clerk
3 While Dane is entitled to reasonable attorney fees paid to Hansen
Rasmussen, L.L.C. incurred in the district court action, he is not entitled
to an award of attorney fees paid for any writ petitions filed, because writs
are original and separate legal proceedings, see NRS 34.160; NRS 34.330;
Pan v. Eighth Judicial Dist. Court, 120 Nev. 222, 229, 88 P.3d 840, 844
(2004) ("A petition for writ relief invokes th[e] [petitioned] court's original
jurisdiction."), or for attorney fees on appeal, because NRS 18.010(2) does
not authorize an award of appellate attorney fees. Bd. of Gallery of
History, Inc. v. Datecs Corp., 116 Nev. 286, 288, 994 P.2d 1149, 1150
(2000) (holding that NRS 18.010(2) does not provide for an award of
attorney fees on appeal); Bobby Berosini, 114 Nev. at 1356-57, 971 P.2d at
388 (same).
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