After a three-day jury trial at which the district court
permitted Burke to present evidence of the attorney fees that she incurred
and of her emotional distress, the jury awarded damages to Burke for
multiple types of harm, including emotional distress and incurred attorney
fees. The district court then denied Crowley and ALS's motion for
judgment as a matter of law. The district court awarded costs to Burke
and granted her motion for a judgment debtor's examination, of Crowley
and ALS but later vacated the examination.
Crowley and ALS now appeal and raise the following issues:
(1) whether the district court erred by refusing to grant Crowley and
ALS's motion to dismiss Burke's claims for lack of subject matter
jurisdiction, (2) whether the district court erred by denying Crowley and
ALS's renewed motion for judgment as a matter of law regarding the
award of attorney fees as consequential damages and emotional distress
damages, (3) whether the district court abused its discretion when making
evidentiary rulings, (4) whether the district court abused its discretion by
refusing to give Crowley and ALS's proposed jury instructions, (5) whether
the district court abused its discretion by improperly limiting Crowley's
closing argument, (6) whether Burke's attorney committed misconduct
during closing argument, and (7) whether the district court abused its
discretion when making a post-judgment award of costs and ordering a
judgment debtor's examination.'
'Crowley and ALS waived for consideration their appellate
arguments that the district court erred by submitting an improper jury
verdict form and by refusing to grant judgment as a matter of law on the
application of the Nevada State Bar's fee arbitration program rules by not
raising these issues before the district court. See Old Aztec Mine, Inc. v.
Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). Furthermore, Crowley
continued on next page...
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The district court had subject matter jurisdiction over Burke's claims
Crowley and ALS argue that the district court improperly
refused to dismiss Burke's claims because they were worth less than the
amount-in-controversy threshold for the district court's jurisdiction.
We review subject matter jurisdiction and a district court's
resolution of a motion to dismiss de novo. Ogawa v. Ogawa, 125 Nev. 660,
667, 221 P.3d 699, 704 (2009) (reviewing subject matter jurisdiction de
novo); Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227-28, 181
P.3d 670, 672 (2008) (reviewing the resolution of a motion to dismiss de
novo).
Burke alleged sufficient damages to meet the amount-in-controversy
threshold for the district court's jurisdiction
District courts have original jurisdiction in cases where the
amount of controversy exceeds $10,000. See generally Nev. Const. art. 6, §
6(1); 2013 Nev. Stat., ch. 172, § 2, at 597 (former NRS 4.370(1)(a)-(b)). A
claim for damages satisfies the jurisdictional amount in controversy
unless "it . . . appear[s] to a legal certainty that the [damages are] worth
less than the jurisdictional amount." Edwards v. Direct Access, LLC, 121
Nev. 929, 933, 124 P.3d 1158, 1160 (2005) (alteration in original) (internal
quotations omitted), abrogated on other grounds by Buzz Stew, 124 Nev. at
228 n.6, 181 P.3d at 672 n.6.
...continued
and ALS make no substantive argument addressing the district court's
denial of their motion for dismissal pursuant to NRCP 41(b). Therefore,
this issue is non-cogent and we need not address it. See Edwards v.
Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.M 1280, 1288 n.38
(2006) (refusing to address a non-cogent argument).
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In her complaint, Burke stated two claims for legal
malpractice against Crowley and ALS. For each claim, she sought
compensatory damages in excess of $10,000, attorney fees, and punitive
damages. Since Burke did not allege any facts to limit the value of the
compensatory damages that she sought, she alleged sufficient
compensatory damages to meet the legal certainty test. See id. Therefore,
the district court properly denied Crowley and ALS's motion to dismiss. 2
The district court erred by refusing to grant Crowley and ALS's renewed
motion for judgment as a matter of law with regard to the award of
attorney fees as consequential damages but properly denied their motion
with regard to emotional distress damages
Crowley and ALS argue that the district court erred by
denying their renewed motion for judgment as a matter of law with regard
to Burke's recovery of attorney fees as consequential damages and
emotional distress damages because these types of damages are not
recoverable in a legal malpractice action.
Burke argues that emotional distress damages and attorney
fees incurred when pursuing a legal malpractice claim are recoverable
because they are a foreseeable result of the malpractice.
2 To the extent that the district court incorrectly relied on Burke's
claims for attorney fees when finding that her complaint satisfied the
jurisdictional threshold, see Royal Ins. v. Eagle Valley Constr., Inc., 110
Nev. 119, 120, 867 P.2d 1146, 1147 (1994) (holding that attorney fees and
costs incurred in bringing a case cannot be relied upon to satisfy the
jurisdictional threshold), its denial of Crowley and ALS's motion to dismiss
was proper because it reached the correct result, albeit for the wrong
reason. See Holcomb v. Ga. Pac., LLC, 128 Nev., Adv. Op. 56, 289 P.3d
188, 200 (2012).
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We review de novo the denial of a renewed motion for
judgment as a matter of law and a party's eligibility to recover a particular
type of damages. Rd. & Highway Builders, LLC v. N. Nev. Rebar, Inc.,
128 Nev., Adv. Op. 36, 284 P.3d 377, 380 (2012) (reviewing de novo the
resolution of a renewed motion for judgment as a matter of law);
Dynalectric Co. of Nev., Inc. v. Clark & Sullivan Constructors, Inc., 127
Nev. 480, 483, 255 P.3d 286, 288 (2011) (reviewing de novo a party's
eligibility to recover a type of damages).
After a party has presented its case-in-chief, the district court
may enter a "judgment as a matter of law against that party with respect
to a claim or defense that cannot under the controlling law be maintained
or defeated without a favorable finding on that issue." NRCP 50(a)(1).
This standard applies to renewed motions for judgment as a matter of law.
Nelson v. Heer, 123 Nev. 217, 223, 163 P.3d 420, 424 (2007); see also NRCP
50(b).
The district court erred by denying Crowley and ALS's motion with
regard to the award of attorney fees as consequential damages
Generally, "the district court may not award attorney fees
absent authority under a statute, rule, or contract." Albios v. Horizon
Cmtys., Inc., 122 Nev. 409, 417, 132 P.3d 1022, 1028 (2006). Burke
identifies no statute or rule authorizing her to recover attorney fees as
consequential damages in the present case. Nor does the record suggest
that she had a contractual right to such damages. Thus, Burke cannot
recover attorney fees as consequential damages unless an exception to the
general rule applies.
"[Ns an exception to the general rule, attorney fees may be
awarded as special damages in limited circumstances." Liu v. Christopher
Homes, LLC, 130 Nev., Adv. Op. 17, 321 P.3d 875, 878 (2014) (internal
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quotations omitted). Here, the record does not suggest that any of the
limited circumstances identified in Nevada caselaw apply. 3 See id.
Therefore, the district court erred by not granting judgment as a matter of
law against the award of attorney fees as consequential damages.
The district court did not err when denying Crowley and ALS's
motion regarding the award of emotional distress damages
Generally, "a claim of negligent infliction of emotional distress
is inappropriate in the context of a legal malpractice suit when the harm
resulted from pecuniary damages, even if the plaintiffs demonstrated
physical symptoms." Kahn v. Morse & Mowbray, 121 Nev. 464, 478, 117
P.3d 227, 237 (2005). However, "this court [has] recognized the rule that,
in special cases involving peculiarly personal subject matters, mental
anguish may be a foreseeable damage resulting from breach of contract."
Selsnick v. Horton, 96 Nev. 944, 946, 620 P.2d 1256, 1257 (1980); see also
Burrus v. Nev.-Cal.-Or. Ry., 38 Nev. 156, 162, 145 P. 926, 929 (1915)
(stating that "[r]ecovery for mental suffering should be limited to special
cases"). Thus, Nevada law does not preclude the recovery of emotional
distress damages for a special case, such as when harm arises from legal
malpractice in a highly personal representation advancing a non-
pecuniary interest.
3 Tothe extent that Burke contends that we should adopt a new
exception that applies to the facts of the present case, she has failed to
provide a compelling reason for us to diverge from established caselaw.
See Miller v. Burk, 124 Nev. 579, 597, 188 P.3d 1112, 1124 (2008)
("[U]nder the doctrine of stare decisis, [this court] will not overturn
[precedent] absent compelling reasons for so doing. Mere disagreement
does not suffice." (citations omitted)). Thus, this argument is without
merit.
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Here, the record demonstrates that Burke retained Crowley
and ALS for a highly personal representation to achieve a non-pecuniary
goal: her then-husband's adoption of her son. Thus, Burke was eligible to
recover emotional distress damages in the present case. Therefore, the
district court properly denied Crowley and ALS's motion for judgment as a
matter of law with regard to this issue.
The district court did not commit reversible error when making its
evidentiary rulings
Crowley and ALS argue that the district court improperly
allowed Burke to present evidence of her emotional distress because it had
previously dismissed her emotional distress claim. 4 They also contend
that the district court improperly allowed Burke to present evidence of the
attorney fees that she incurred. Finally, Crowley and ALS argue that the
district court improperly prohibited Crowley from impeaching Burke
during cross-examination.
"We review a district court's decision to admit or exclude
evidence for abuse of discretion, and we will not interfere with the district
court's exercise of its discretion absent a showing of palpable abuse." M. C.
Multi-Family Dev., L.L.C. v. Crestdale Assocs., Ltd., 124 Nev. 901, 913,
193 P.3d 536, 544 (2008).
`Crowley and ALS's related argument that the law of the case
doctrine precludes a district court from reversing its prior ruling is
without merit because the law of the case doctrine only applies to
appellate decisions and not prior district court orders. See Dictor v.
Creative Mgmt. Servs., LLC, 126 Nev. 41, 44, 223 P.3d 332, 334 (2010).
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The district court did not abuse its discretion by allowing evidence of
Burke's emotional distress
Evidence that has a tendency to make a material fact more or
less probable is relevant and generally admissible. NRS 48.015; NRS
48.025(1). "A district court may reconsider a previously decided issue if
substantially different evidence is subsequently introduced or the decision
is clearly erroneous." Masonry & Tile Contractors Ass'n of S. Nev. v.
Jolley, Urga & Wirth, Ltd., 113 Nev. 737, 741, 941 P.2d 486, 489 (1997).
In its pretrial order, the district court found that Burke failed
to state an emotional distress cause of action because she did not allege
any physical injury as a symptom of emotional distress. In making this
finding, the district court applied the elements of the tort of intentional
infliction of emotional distress. It is unclear from the record whether the
district court dismissed Burke's demands for emotional distress damages
from her legal malpractice claims or dismissed a stand-alone emotional
distress claim.
A legal malpractice claim does not require that the elements of
intentional infliction of emotional distress be satisfied or that a plaintiff
suffer physical symptoms to be eligible to recover for emotional distress.
See Day v. Zubel, 112 Nev. 972, 976, 922 P.2d 536, 538 (1996) (stating the
elements for a legal malpractice claim without identifying intentional
infliction of emotional distress or requiring physical symptoms of harm).
Thus, the district court applied an erroneous standard of law if its order
dismissed Burke's claim for emotional distress damages from her legal
malpractice claims. Therefore, if the prior order dismissed claims for
emotional distress damages from Burke's legal malpractice claims, the
district court properly reconsidered the prior order when it allowed
evidence of emotional distress damages.
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If the prior order dismissed a stand-alone emotional distress
claim and not emotional distress damages from Burke's legal malpractice
claims, then evidence of her emotional distress would have remained
relevant to the damage elements of her legal malpractice claims and thus
admissible. Therefore, the district court did not abuse its discretion by
admitting evidence of Burke's emotional distress that was relevant to her
properly reinstated claim.
The district court abused its discretion by admitting evidence of the
attorney fees that Burke incurred
Attorney fees are not recoverable as consequential damages in
the present case because they are not authorized as such by statute, rule,
contract, or caselaw. See Liu, 130 Nev., Adv. Op. 17, 321 P.3d at 878;
Albios, 122 Nev. at 417, 132 P.3d at 1028. Thus, evidence that is only
relevant to the issue of the attorney fees that Burke incurred in pursuing
her legal malpractice claim is irrelevant and thus inadmissible. See NRS
48.015; NRS 48.025(2). Therefore, the district court abused its discretion
by admitting this evidence.
To demonstrate that an error is not harmless and warrants
reversal, a party "must show that the error affects the party's substantial
rights so that, but for the alleged error, a different result might reasonably
have been reached." Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765,
778 (2010); see also NRCP 61. Here, Crowley and ALS fail to show that
the admission of this inadmissible evidence amounted to more than
harmless error because they provide no analysis to suggest that this
evidence impacted any valid claim, defense, or recoverable element of
damages. Therefore, the improper admission of this evidence was
harmless error and does not warrant reversal.
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The district court did not abuse its discretion by limiting Crowley's
cross-examination of Burke
Before a witness may be impeached with prior inconsistent
statements, "a foundation must be laid by interrogating the witness
himself as to whether he has ever made such statements." Mattox v.
United States, 156 U.S. 237, 245 (1895), quoted with approval in Reno Mill
& Lumber Co. v. Westerfield, 26 Nev. 332, 337, 67 P. 961, 962, rev'd on
other grounds, 26 Nev. 332, 346, 69 P. 899, 900 (1902).
When cross-examining Burke about her prior trial testimony,
Crowley attempted to impeach Burke with an inconsistent, but
unspecified, comment that someone had purportedly made at Burke's
deposition. Crowley did not identify the statement or ask Burke if she
made it. Thus, Crowley failed to lay a proper foundation for his
impeachment of Burke, and the district court did not abuse its discretion
by refusing to allow Crowley's cross-examination on this issue. 5
The district court did not abuse its discretion by refusing to give Crowley
and ALS's proposed jury instructions
Crowley and ALS argue that the district court improperly
refused to give seven of their proposed jury instructions. We review a
district court's decision regarding jury instructions for abuse of discretion
or judicial error. Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev.
1430, 1435, 148 P.3d 710, 714 (2006).
°To the extent that Crowley and ALS contend that the district court
improperly limited the cross-examination of Burke at a bench conference,
their argument is without merit because their failure to include a
transcript of the bench conference in the appellate record requires us to
presume that the district court acted properly. See Cuzze v. Univ. & Cmty.
Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007).
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A jury instruction need not be given where its substance is
adequately covered in other instructions. See S. Pac. Co. v. Watkins, 83
Nev. 471, 493, 435 P.2d 498, 512 (1967). Here, Crowley and ALS omitted
the jury instructions that the district court gave from the appellate record.
We must presume that the given jury instructions adequately covered the
content of their jury instructions that the district court refused to give.
See Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d
131, 135 (2007) (observing that "we necessarily presume that the missing
portion supports the district court's decision"). Additionally, it is appellant
who "bears the responsibility of ensuring an accurate and complete record
on appeal." Id. at 603, 172 P.3d at 135. Therefore, we conclude that the
district court did not abuse its discretion by refusing to give Crowley and
ALS's proposed jury instructions.
The district court did not abuse its discretion by limiting Crowley and
ALS's closing argument
Crowley and ALS argue that the district court improperly
prevented Crowley from addressing the application of the bylaws of the
Nevada State Bar's fee arbitration program in closing argument.
We review a district court's regulation of closing arguments for
an abuse of discretion, see Manley v. State, 115 Nev. 114, 125, 979 P.2d
703, 709-10 (1999), and observe that the district court has the authority to
prevent an attorney from misstating the applicable law during closing
argument. See Scott v. State, 92 Nev. 552, 556, 554 P.2d 735, 738 (1976).
Here, the district court instructed Crowley not to misstate the applicable
law and did not prohibit him from discussing the fee arbitration program's
bylaws. Therefore, it did not abuse its discretion.
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Burke's attorney did not commit misconduct in closing argument
Crowley and ALS argue that Burke's attorney committed
misconduct by making multiple improper comments during closing
argument. Specifically, Burke's attorney told jurors that "[they] are the
voice of the community. Those are my words. I'm going to ask you to do
the right thing. It's what you took the oath to do. No more lawyer jokes,
you can go downtown now and say, hey look, I told at least one lawyer to
clean up." However, they did not object to these comments.
We review de novo "[w[hether an attorney's comments are
misconduct" and will only reverse a judgment for unobjected-to
misconduct when it constitutes "irreparable and fundamental
error ... that results in a substantial impairment of justice or denial of
fundamental rights such that, but for the misconduct, the verdict would
have been different." Lioce v. Cohen, 124 Nev. 1, 19-20, 174 P.3d 970, 982
(2008). The complaining party has the burden to demonstrate that
reversal is warranted. Id. at 19, 174 P.3d at 982.
Crowley and ALS offer no meaningful analysis and cite no
controlling or persuasive legal authority to support their contention that
Burke's attorney's comments amounted to misconduct. Therefore, this
issue is non-cogent and we need not address it. See Edwards v. Emperor's
Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006)
(refusing to address a non-cogent argument).
The district court abused its discretion when awarding costs to Burke and
scheduling a debtor's examination, but these abuses were harmless error
Crowley and ALS argue that the district court improperly
awarded costs to Burke and ordered a judgment debtor's examination of
Crowley and ALS before they had an opportunity to file a motion to retax
costs or to oppose the judgment debtor's examination.
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We review an award of costs for an abuse of discretion. Vill.
Builders 96, L.P. u. U.S. Labs., Inc., 121 Nev. 261, 276, 112 P.3d 1082,
1092 (2005). Since a judgment debtor's examination is a proceeding upon
which a judgment debtor provides information about his or her assets,
NRS 21.270(1), it is a discovery issue whose resolution we review for an
abuse of discretion. See Club Vista Fin. Servs., L.L.C. v. Eighth Judicial
Dist. Court, 128 Nev., Adv. Op. 21, 276 P.3d 246, 249 (2012). An abuse of
discretion can occur when a district court disregards controlling law.
Bergmann v. Boyce, 109 Nev. 670, 674, 856 P.2d 560, 563 (1993).
The district court abused its discretion by prematurely awarding
costs, but this was harmless error
A party has three days to file a motion to retax after it has
been served with a motion for costs. NRS 18.110(4). Before the time
expired for Crowley and ALS to file their motion to retax costs, the district
court awarded costs to Burke. However, the district court revised its
award of costs after Crowley and ALS filed their motion.
Since it awarded costs to Burke before Crowley and ALS's
time to respond had expired, the district court abused its discretion by
disregarding NRS 18.110(4). However, this was harmless error because
the district court reduced its award in response to Crowley and ALS's
subsequent motion to retax costs. See NRCP 61.
The district court abused its discretion by ordering a judgment
debtor's examination, but this was harmless error
Except as otherwise provided for by court rules, a party in the
Tenth Judicial District Court has ten days after being served with a
motion to file an opposition. 10 JDCR 15(9). Here, the district court
issued an order scheduling a judgment debtor's examination less than ten
days after Burke served a copy of the motion for a judgment debtor's
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examination on Crowley and ALS. Therefore, the district court abused its
discretion by granting this motion before Crowley and ALS's time to
respond had expired. See 10 JDCR 15(9); see also Bergmann, 109 Nev. at
674, 856 P.2d at 563. However, this abuse was harmless because the
district court vacated its order• scheduling the judgment debtor's
examination before the examination was held. See NRCP 61.
Conclusion
The district court properly denied Crowley and ALS's motion
to dismiss because it had subject matter jurisdiction over Burke's claims.
However, it erred by refusing to grant judgment as a matter of law against
the award of attorney fees as consequential damages but properly refused
to grant judgment as a• matter of law against the award of emotional
distress damages. While the district court properly admitted evidence of
Burke's emotional distress and limited Crowley's cross-examination of
Burke, it abused its discretion by admitting evidence of the attorney fees
that Burke incurred. However, this abuse was harmless error.
The district court also properly refused to give Crowley's
proposed jury instructions and did not abuse its discretion by instructing
Crowley not to make misstatements of law. Burke's attorney did not
commit misconduct in closing argument because he did not improperly
appeal to the jury's emotions or urge it to ignore the evidence. Finally, the
district court abused its discretion by awarding costs to Burke and
scheduling a judgment debtor's examination of Crowley and ALS before
their time to respond expired. However, these abuses were harmless
because the district court subsequently modified its award of costs and
vacated the order scheduling the judgment debtor's examination. Thus,
the district court's judgment is proper except for the award of attorney
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fees as consequential damages, which is unsupported by our governing
law. 6 Therefore, we
ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART.
J.
Pickering
cc: Chief Judge, Tenth Judicial District Court
Hon. Robert E. Estes, Senior Judge
Carolyn Worrell, Settlement Judge
American Legal Services
Martin G. Crowley
Bradley Drendel & Jeanney
Churchill County Clerk
°We have considered the parties' remaining arguments and conclude
that they are without merit.
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