Monahan v. Salvo ( 2014 )

 and awarded fees for work performed by her attorney. However, it
declined to award fees for work performed by Salvo's attorney's paralegal.
The district court also awarded costs to Salvo, including $4,875 for one
expert's fee.
After this appeal was filed and briefed, Monahan died and was
replaced by his estate as a party to this lawsuit. Monahan's estate now
appeals the orders regarding attorney fees and costs. Salvo cross-appeals
the district court's order denying her motion for attorney fees for her
attorney's paralegal's work.
The issues on appeal and cross-appeal are: (1) whether the
district court abused its discretion in awarding attorney fees to Salvo for
work performed by her attorney, (2) whether the district court abused its
discretion by refusing to award attorney fees to Salvo for work performed
by her attorney's paralegal, and (3) whether the district court abused its
discretion by awarding costs to Salvo. 1
The district court did not abuse its discretion by awarding attorney fees for
work performed by Salvo's attorney but abused its discretion by refusing to
award attorney fees for work performed by Salvo's attorney's paralegal
Monahan's estate argues that the district court abused its
discretion by awarding attorney fees to Salvo because Salvo did not
improve upon Monahan's offer of judgment. Alternatively, it contends
that the district court could not have awarded attorney fees to Salvo
because NRS 17.115 and NRCP 68 do not allow an offer of judgment in
1 Monahan's estate waived the issue of whether the district court
abused its discretion when it denied Monahan's motion for attorney fees
by not briefing that issue on appeal. Powell v. Liberty Mut. Fire Ins. Co.,
127 Nev. , n.3, 252 P.3d 668, 672 n.3 (2011) ("Issues not raised in
an appellant's opening brief are deemed waived.").
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cases involving demands for equitable relief. Monahan's estate also
argues that the district court erroneously found that NRS 116.4117
authorized the award of attorney fees to Salvo.
The decision "to award attorney's fees is within the sound
discretion of the trial court" and one which we review for an abuse of
discretion. Bergmann v. Boyce, 109 Nev, 670, 674, 856 P.2d 560, 563
(1993). When a district court "exercises its discretion in clear disregard of
the guiding legal principles, this action may constitute an abuse of
discretion." Id. Furthermore, "a court may not award attorney's fees
unless authorized by statute, rule or contract." State, Dep't of Human Res.
v. Fowler, 109 Nev. 782, 784, 858 P.2d 375, 376 (1993).
Salvo was a prevailing party who improved upon Monahan's offer of
judgment
A party prevails "if it succeeds on any significant issue in
litigation which achieves some of the benefit it sought in bringing the
suit." Hornwood v. Smith's Food King No. 1, 105 Nev. 188, 192, 772 P.2d
1284, 1287 (1989) (internal quotations omitted); see also Valley Elec. Ass'n
v. Overfield, 121 Nev. 7, 10, 106 P.3d 1198, 1200 (2005) (stating the same
when considering prevailing party status in the context of an award of
attorney fees under NRS 18.010). Here, Salvo obtained most of the
remedies she sought and received favorable verdicts on the causes of
action that were decided by the jury. Therefore, she was the prevailing
party.
NRS 17.115(1) and NRCP 68(a) each authorize a party in
litigation to make an offer of judgment to its adversary. If the offeree
rejects the offer and does not improve upon it, the offeree may not recover
costs or attorney fees and may be liable for the offeror's attorney fees and
costs for "the period from the date of service of the offer to the date of
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entry of the judgment." NRS 17.115(4); see also NRCP 68(f). However, if
the offeree improves upon the offer of judgment, then NRS 17.115 and
NRCP 68 do not limit its ability to recover attorney fees or costs. See NRS
17.115(4)(a)-(b); see also NRCP 88(f). Neither NRS 17.115 nor NRCP 68
prevents a party from making a monetary offer of judgment when a party
is seeking both legal and equitable relief. Since Monahan made a
monetary offer to resolve claims seeking both legal and equitable relief, he
made a valid offer of judgment.
Equitable relief can be both hard to appropriately appraise
and highly valuable. See, e.g., Domanski v. Funtime, Inc., 149 F.R.D. 556,
558 (N.D. Ohio 1993) (holding in a copyright infringement case that
"permanent injunctive relief [prohibiting the defendant's unauthorized use
of copyrighted material], though admittedly difficult to quantify, adds
considerable value to the judgment finally obtained by [the plaintiff] when
compared to the judgment offered" (internal quotations omitted)).
Therefore, it may not be readily apparent if a judgment that includes
equitable relief is more or less valuable than the monetary offer of
judgment.
When a monetary offer is made in a case involving equitable
relief, the offeror "bears the burden of showing that [an offer of judgment]
was more favorable than the judgment." Reiter v. MTA N.Y.C. Transit
Auth., 457 F.3d 224, 231 (2d Cir. 2006) (applying FRCP 68, a rule similar
to NRCP 68) 2; see also Greene v. Eighth Judicial Dist. Court, 115 Nev. 391,
2 Though they are mostly similar, FRCP 68 and NRCP 68 differ in
one key aspect: FRCP 68 only allows an offeror to recover post-offer costs,
while NRCP 68 allows an offeror to recover post-offer costs and attorney
fees.
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393, 990 P.2d 184, 185 (1999) (holding that federal caselaw interpreting
federal rules that are analogous to Nevada rules is persuasive authority);
Danow v. Law Office of David E. Borack, P.A., 367 F. App'x 22, 24 (11th
Cir. 2010) (holding that because an offeror "failed to show how [an
offeree's] ultimate recovery... . was not more favorable than the [o]ffer of
bludgment," the offeree was eligible to recover attorney fees (internal
quotations omitted)). Thus, Monahan had the burden of showing that
Salvo did not improve upon his offer of judgment.
In his briefing before the district court, Monahan provided no
analysis to demonstrate that Salvo failed to improve upon the offer of
judgment. The district court then found that Salvo improved upon
Monahan's offer of judgment because the actual judgment included
significant equitable relief not included in the offer that protected Salvo
from "recurring problems caused by [Monahan's] trees." Thus, the district
court did not abuse its discretion by finding that Salvo improved upon the
offer of judgment. Accordingly, the penalties for rejecting an offer of
judgment are inapplicable.
NRS 116.4117 authorizes the award of attorney fees to Salvo
NRS 116.4117(2) authorizes an individual or entity that is
part of a common-interest community to bring "a civil action for damages
or other appropriate relief for a failure or refusal to comply with any
provision of [NRS Chapter 116] or the governing documents of [the
community]," including the community's CC&Rs, against another
individual or entity affiliated with the community. NRS 116.4117(6)
provides that in a CC&R-based action, "[Ole [district] court may award
reasonable attorney's fees to the prevailing party." Since the verb "may"
in this statute is permissive, see State of Nev. Emps. Ass'n, Inc. v. Daines,
108 Nev. 15, 19, 824 P.2d 276, 278 (1992) (providing that the use of the
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verb "may" in a statute is generally permissive), NRS 116.4117(6)
authorizes the district court to award attorney fees to a party who prevails
in a CC&R-based lawsuit.
Because Salvo was the prevailing party, she could recover
attorney fees if her lawsuit sought "damages or other appropriate relief for
a failure or refusal to comply with" the common-interest community's
CC&Rs. NRS 116.4117(2); see also NRS 116.4117(6). In relevant part, the
community's CC&Rs provide that "[n]o Owner shall permit or suffer
anything to be done or kept in any Lot or any portion of the Common Area
which will obstruct or interfere with the rights of other occupants, or
annoy them by unreasonable noise or otherwise." Thus, Salvo's
allegations of nuisance and trespass constituted CC&R-based claims
brought pursuant to NRS 116.4117(2). Since Salvo prevailed upon these
claims, NRS 116.4117(6) authorized Salvo's recovery of attorney fees.
The district court did not abuse its discretion in awarding attorney
fees to Salvo for the work performed by her attorney
In its order awarding attorney fees, the district court stated
that it "considered the record in its entirety, and [found that Salvo]
demonstrated that she brought an action pursuant to NRS 116.4117
alleging a violation of the common-interest community's 'governing
documents,' pursuant to which she [was] entitled to attorney's fees." The
district court reviewed the attorney fee factors set out in Brunzell v.
Golden Gate National Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969), and
stated that it considered the documentation of attorney fees that Salvo
submitted. It then awarded what it found to be reasonable attorney fees. 3
3 Monahan's estate's challenge to the district court's use of the term
"entitled" in its order awarding attorney fees is without merit. The use of
continued on next page...
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Since the district court identified the legally appropriate factors that it
considered in awarding attorney fees and relied upon the documentation
in the record, it did not abuse its discretion and we affirm this portion of
the district court's order.
The district court abused its discretion by refusing to award attorney
fees to Salvo for the work performed by her attorney's paralegal
Recoverable attorney fees can "include [ ] charges for [work
performed by] persons such as paralegals and law clerks" so long as that
work was "billed at a lower rate" than the rate charged for the attorney's
work. Las Vegas Metro. Police Dep't v. Yeghiazarian, 129 Nev. ,
312 P.3d 503, 510 (2013). This type of work may be recoverable when it
helps reduce litigation costs by having a non-attorney perform work that
the attorney would otherwise perform and do so at a lower cost. Id. Thus,
attorney fees may be awarded for a paralegal's work.
In its order, the district court did not analyze whether the
work performed by Salvo's attorney's paralegal was actually unrecoverable
work when it refused to award attorney fees for this work. Because the
district court did not apply Yeghiazarian when determining if the
paralegal's work in this case was recoverable, it abused its discretion with
regard to Salvo's motion for attorney fees related to this work. Therefore,
we reverse the district court's denial of Salvo's motion for attorney fees
and remand this issue for further consideration by the district court.
...continued
this term does not show that the district court believed an award of
attorney fees was mandatory. Instead, it denotes that the district court
found that Salvo was eligible to recover attorney fees.
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The district court abused its discretion by awarding costs for Salvo's expert
witness
Monahan's estate argues that the district court improperly
awarded costs to Salvo because NRS 18.020 does not authorize an award
of costs in cases involving equitable claims. Monahan's estate also
contends that the district court's award of costs for Salvo's expert was
excessive. It does not challenge the reasonableness of any other costs
awarded to Salvo.
Though we review a district court's award of costs for an abuse
of discretion, Village Builders .96, L.P. v. U.S. Laboratories, Inc., 121 Nev.
261, 276, 112 P.3d 1082, 1092 (2005), we review its interpretation of a
statute de novo. Washoe Med. Ctr. v. Second Judicial Dist. Court, 122
Nev. 1298, 1302, 148 P.3d 790, 792 (2006).
NRS 18.020 authorized the district court to award costs in this case
NRS 18.020(3) authorizes a district court to award costs to a
party who prevails in a civil action "where the plaintiff seeks to recover
more than $2,500." NRS 18.020 does not identify damages as the sole
relief that must be sought in order for NRS 18.020(3) to apply. Nor does
this statute preclude the award of costs when a party seeks both legal and
equitable relief. Thus, NRS 18.020(3) authorizes the award of costs to a
prevailing party where the plaintiff sought at least $2,500 without regard
to whether the plaintiff also sought equitable relief.
Since Salvo sought over $10,000 in compensatory damages,
NRS 18.020(3) allowed her to recover costs. Therefore, the district court
did not err in finding that Salvo was eligible to recover costs.
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The district court abused its discretion by awarding Salvo's expert's
costs
NRS 18.005(5) allows an award of costs to include
"[r]easonable fees . . . in an amount of not more than $1,500 for each
[expert] witness, unless the court allows a larger fee after determining
that the circumstances surrounding the expert's testimony were of such
necessity as to require the larger fee." Therefore, this statute authorized
the district court to include expert witness fees in excess of $1,500 per
expert when awarding costs. 4
To be recoverable, costs "must be actual and reasonable."
Bobby Berosini, Ltd. v. People for the Ethical Treatment of Animals, 114
Nev. 1348, 1352, 971 P.2d 383, 385 (1998). A party must provide
documentation to demonstrate that a cost was actually incurred. 1/ill.
Builders 96, 121 Nev. at 277-78, 112 P.3d at 1093; see also Gibellini v.
Klindt, 110 Nev. . 1201, 1206, 885 P.2d 540, 543 (1994) (reversing part of an
order awarding costs because the party failed to document its actual
costs). Detailed documentation, such as itemization, may be necessary to
demonstrate the reasonableness of costs. See Bobby Berosini, Ltd., 114
Nev. at 1353, 971 P.2d at 386.
Though the district court concluded that Salvo "ha [d]
demonstrated [that] she reasonably and necessarily incurred expert
4 Monahan's argument that a district court should be required to
preapprove expert witness fees that are in excess of $1,500 is without
merit because it would require us to deviate from NRS 18.005's plain
meaning by reading additional language into this statute. See Williams v.
United Parcel Servs., 129 Nev. „ 302 P.3d 1144, 1147 (2013)
(refusing to deviate from the plain meaning of a statute and rejecting
arguments that would require reading additional language into a statute).
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witness fees in the amount of $4,875," its order did not state that it
considered any documentation of the expert's fees. While Salvo's
memorandum of costs presented the amount of her expert's fees and
stated that the expert's invoices were attached to it, the invoices were not
included in the appellate record. Nor does the appellate record
demonstrate that the invoices were actually provided to the district court.
Even if the expert witness's invoices were submitted to the
district court, neither the district court's order nor the record on appeal
show that they contained sufficient detail to demonstrate the
reasonableness or necessity of the expert's fees. Therefore, the district
court abused its discretion by not demonstrating that it considered
adequate documentation of Salvo's expert witness fees when awarding this
cost. Thus, we reverse and remand this award of costs for further
consideration and a determination of whether it is supported by adequate
documentation.
Conclusion
Salvo prevailed in a lawsuit based on a community
association's CC&Rs. Monahan's estate did not demonstrate that Salvo
failed to improve upon Monahan's offer of judgment. Therefore, Salvo was
entitled to recover attorney fees pursuant to NRS 116.4117(6). Though
the district court did not abuse its discretion when awarding attorney fees
for Salvo's attorney's work, it abused its discretion by not determining if
the attorney fees relating to the paralegal's work were recoverable before
denying them. While NRS 18.020(3) authorized the district court to award
costs in this case because Salvo sought more than $2,500, the district court
abused its discretion by awarding costs for Salvo's expert since the record
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does not demonstrate that they were adequately documented. 5 Therefore
we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for consideration of Salvo's motion for attorney fees for her
attorney's paralegal's work and a determination of whether adequate
documentation supports an award of costs for Salvo's expert's fees.
Pickering
fTh
aAlree--cp-
Parraguirre
, J.
Saitta
cc: Hon. Janet J. Berry, District Judge
David Wasick, Settlement Judge
Upson Smith/Reno
Carole Pope
Washoe District Court Clerk
5We have considered the parties' remaining arguments and conclude
that they are without merit.
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