Lewis v. Nalder C/W 81710

IN THE SUPREME COURT OF THE STATE OF NEVADA
GARY LEWIS, No,81510
Appellant,
vs. FILED
CHEYENNE NALDER; AND UNITED
AUTOMOBILE INSURANCE
COMPANY,
Res • ondents.
CHEYENNE NALDER,
Appellant,
vs.
GARY LEWIS; AND UNITED
AUTOMOBILE INSURANCE
COMPANY,
Res ondents.
ORDER OF AFFIRMANCE
These are consolidated appeals from district court orders
denying motions for attorney fees and costs in a torts action. Eighth
Judicial District Court, Clark County; Eric Johnson, Judge." Cheyenne
Nalder, through her guardian ad litem, obtained a default judgment against
Gary Lewis several years after Lewis insurance carrier, respondent United
Auto Insurance Company (UAIC), denied coverage for a traffic accident
Lewis caused. Here, Nalder and Lewis challenge the district court's denial
of their attorney fees motions after UAIC's attempt to intervene failed, and
Lewis also challenges the denial of his request for costs.
First, Nalder and Lewis argue that the district court erred by
denying their motions for attorney fees under NRS 12.130. "Although the
award of attorney fees is generally entrusted to the sound discretion of the
'Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted.
district court, when a party's eligibility for a fee award is a matter of
statutory interpretation, as is the case here, a question of law is presented,
which we review de novo." In re Estate & Living Tr. of Miller, 125 Nev. 550,
552-53, 216 P.3d 239, 241 (2009) (internal citation omitted).
NRS 12.130(1)(d) provides, in relevant part, that TN the claim
of the party intervening is not sustained, the party intervening shall pay all
costs incurred by the intervention." The statute's plain language provides
for recovery of costs but does not mention attorney fees. See Branch
Banking v. Windhaven & Tollway, LLC, 131 Nev. 155, 158, 347 P.3d 1038,
1040 (2015) (In interpreting a statute, this court looks to the plain
language of the statute and, if that language is clear, this court does not go
beyond it."). Had the Legislature intended to require a party to pay attorney
fees in addition to costs, "it could have expressly done so, as it has in other
statutes." Davis v. Eighth Judicial Dist. Court, 129 Nev. 116, 119, 294 P.3d
415, 418 (2013) (comparing a statute that did not require personal service
with other statutes that expressly did). Compare NRS 12.130(1)(d), with
NRS 108.237(1) (providing that the court "shall award to a prevailing lien
claimant . . . the cost of preparing and recording the notice of lien,
including, without limitation, attorney's fees"), and NRS 467.136(3)
(including attorney fees as "costs of the proceedings relating to the issuance
of . . . registration" of entities subject to the statute), and NRS 18.010
(explicitly providing for attorney fees whereas NRS 18.020 addresses costs).
Because the Legislature did not expressly provide for attorney fees in NRS
12.130, the district court properly denied the requests for fees under that
statute.
Nalder and Lewis next argue that the district court should have
awarded them attorney fees under NRS 18.010. We review for an abuse of
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discretion, see Bobby Berosini, Ltd. v. People for the Ethical Treatment of
Animals, 114 Nev. 1348, 1353-54, 971 P.2d 383, 386 (1998) (holding that a
district court's determination under NRS 18.010(2)(b) "will not be disturbed
absent a manifest abuse of discretion"), and disagree. As a threshold issue,
Nalder and Lewis's contention that the district court applied the incorrect
legal standard fails, as Nalder and Lewis did not argue below that UAIC
brought its claims to harass them, and the district court properly considered
whether UAIC maintained its claims "without reasonable ground."2 NRS
18.010(2)(b) (providing that the district court may make an allowance of
attorney fees where it "finds that the claim . . . or defense . . . of the
opposing party was brought or maintained without reasonable ground or to
harass the prevailing party"). And UAIC's arguments in support of
intervention were reasonable. The caselaw on intervention under the facts
of this case was not "free from doube and presented unresolved issues of
statewide importance, as evidenced by this court entertaining Nalder's and
Lewis petitions for writs of mandamus regarding UAIC's intervention.3 See
Nalder v. Eighth Judicial Dist. Court, 136 Nev. 200, 203, 462 P.3d 677, 682
(2020) (entertaining the writ petitions because they raised important legal
issues that warranted clarification); Key Bank of Alaska v. Donnels, 106
2 Whi1e we agree with Nalder and Lewis that whether a party acted in
bad faith is not a consideration under NRS 18.010, the district court's
finding that UAIC did not act in bad faith does not alter our conclusion.
3We also reject Lewis' argument that the district court erred by
denying his motion for costs, as he failed to provide sufficient justifying
evidence to the district court. See Cadle Co. v. Woods & Erickson, LLP, 131
Nev. 114, 120-21, 345 P.3d 1049, 1054 (2015) (holding that "a district court
must have before it evidence that the costs were reasonable, necessary, and
actually incurred," and further holding that a memorandum of cost is
insufficient evidence).
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Nev. 49, 53, 787 P.2d 382, 385 (1990) (rejecting the respondent's contention
that the appellant's claim below was brought without reasonable grounds
because "the law in this case was not free from doubt," as was evident from
the appellate court's conclusion that the district court erroneously applied
the relevant law); see also Pub. Emps. Ret. Sys. of Nev. v. Gitter, 133 Nev.
126, 136, 393 P.3d 673, 682 (2017) (holding that whether a claim or defense
ultimately succeeds is not dispositive of whether it was brought or
maintained without reasonable grounds). Accordingly, we
ORDER the judgments of the district court AFFIRMED.4
, C.J.
Parraguirre
J. Sr.J.
.0414;./sL-0
Stiglich
cc: Hon. Eric Johnson, District Judge
Paul M. Haire, Settlement Judge
Stephens Law Offices
E. Breen Arntz, Chtd.
Christensen Law Offices, LLC
Lewis Roca Rothgerber Christie LLP/Las Vegas
Winner Booze & Zarcone
Eighth District Court Clerk
4The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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