Wagasky v. Miller ( 2013 )

 expenses was inadequate. Miller accepted the additur and appellants
appealed.'
On appeal, appellants contend that the district court abused
its discretion when it presented an inadequate additur given the evidence
presented at trial. Miller asserts that appellants should not be able to
appeal from a judgment in their favor and yet seek to retract the condition
upon which it was obtained. Miller also challenges the reviewability of the
additur award when the record lacks the requisite hearing transcript.
While we conclude that appellants may appeal from the grant of their
motion, we further conclude that the additur award is not reviewable in
this instance as the record is devoid of the hearing transcript explaining
why the amount of additur was awarded.
Appealability
Appellants argue that this court must remedy the manifest
injustice caused by the inadequate additur. Miller contends that
appellants have cited no authority that would allow them to continue
litigating in this court after having successfully sought additur. Here,
Miller elected to accept the additur rather than undergo a new trial.
Because appellants never acquiesced to the adjusted award, we conclude
that they are not barred from claiming that the district court abused its
discretion in the amount of the adjustment. Cf. Woodworth v.
Chesbrough, 244 U.S. 79, 80-82 (1917) (dismissing a case filed by
appellant, who voluntarily remitted part of the award and subsequently
appealed the award, as he "is in the somewhat anomalous position of
"The parties are familiar with the facts and we do not recount them
further except as is necessary for our disposition.
SUPREME COURT
OF
NEVADA
2
(0) I947A
having secured a judgment. . . and yet seeking to retract the condition
upon which it was obtained"); B.C. Ricketts, Annotation, Party's
Acceptance of Remittitur in Lower Court as Affecting His Right to
Complain in Appellate Court as to Amount of Damages for Personal
Injury, 16 A.L.R.3d 1327, 1329 § 2 (1967) (stating that "a party who
accepts a remittitur of a portion of a jury verdict deemed excessive by the
trial judge, in lieu of being obliged to undergo the expense and risks of a
new trial, has made an election and is thereby precluded on appeal from
complaining of the amount of the judgment awarded him"); see also
Lucini/Parish Insurance v. Lucas, 105 Nev. 171, 172, 772 P.2d 317,
318 (1989) (permitting a challenge to remittitur on cross-appeal by a
prevailing party that did not accept the reduced award). Just as
remittitur is appealable by the non-consenting party, we conclude that
additur is appealable under these circumstances as well. See Drummond
v. Mid-West Growers, 91 Nev. 698, 712, 542 P.2d 198, 208 (1975) ("There
is no essential difference between the procedures appropriate for
remittitur and additur.").
Sufficiency of the record
Appellants argue that the district court properly granted their
motion for a new trial based upon the attorney misconduct but then
abused its discretion by granting the inadequate additur. Miller contends
that appellants failed to satisfy the mandate of NRAP 28(e) to provide a
record on which to base the appeal. In arguing why additur was granted
by the district court, appellants relied solely on an affidavit of counsel
attached to the opening brief and failed to attach the transcripts of the
additur hearing. Because of the deficiencies in the record, this court can
only speculate as to exactly how and why the court reached its decision.
Consequently, due to the deference owed to the district court concerning
SUPREME COURT
OF
NEVADA
3
(0) 1947A
an award of additur, we affirm the district court's decision. See Lee v.
Ball, 121 Nev. 391, 394, 116 P.3d 64, 66 (2005) ("The district court has
broad discretion in determining motions for additur, and we will not
disturb the court's determination unless that discretion has been
abused."); Harris v. Zee, 87 Nev. 309, 311, 486 P.2d 490, 491-92 (1971)
(affording great deference to the trial judge "since he [or she] had the
opportunity to weigh evidence and evaluate the credibility of witnesses—
an opportunity foreclosed to this court.").
Accordingly, we 2
ORDER the judgment of the district court AFFIRMED.
Hardesty
Parraguirre
cc: William F. Buchanan, Settlement Judge
Cliff W. Marcek
Roger Steggerda & Associates, LLC
Atkin Winner & Sherrod
Eighth District Court Clerk
2 Because the parties did not raise the question of whether a party
requesting the additur should be able to reject the additur if it is deemed
insufficient, this court does not address this issue.
4