IN THE SUPREME COURT OF THE STATE OF NEVADA
PARKS! AMERICA, INC.; AND PARKS No. 66949
STAFFING SERVICES, LLC,
Appellants/Cross-Respondents,
vs.
FILED
STANLEY HARPER; AND COMPUTER JUL 2 8 2016
CONTACT SERVICES, INC., TRACIE K. LINDEMAN
Respondents/Cross-Appellants. CLERK OF SUPREME COURT
DEPUTY CLERK
ORDER AFFIRMING IN PART AND REVERSING IN PART
AND DISMISSING GROSS-APPEAL
This is an appeal from district court summary judgments
certified as final under NRCP 54(b) and an appeal and cross-appeal from
an order awarding attorney fees and costs in a tort and contract action.
Eighth Judicial District Court, Clark County; Susan Scann, Judge.
Appellants brought claims against respondents for fraud, civil
conspiracy to commit fraud, breach of fiduciary duty, and aiding and
abetting breach of fiduciary duty based on an allegedly fraudulent scheme
related to the sale and reconveyance of an employment services agency.
Respondents counterclaimed for breach of the reconveyance agreement.
On respondents' motions, the district court granted summary judgment on
all claims and counterclaims. The district court thereafter granted in part
respondents' motion for attorney fees and costs under a prevailing party
provision contained in the reconveyance agreement.
Summary judgments
Having reviewed the parties' briefs and appendices, we
conclude that summary judgment was proper as to all of appellants'
claims. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029
(2005) (reviewing de novo a district court summary judgment). Appellants
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failed to present evidence to support their theory that respondents entered
into a scheme to defrahd appellants by making false representations and
omissions, thereby inducing appellants to purchase and then reconvey the
employment services business at unfair prices or that they were damaged
as a result. Barmettler, 114 Nev. at 446-47, 956 P.2d at 1386 (recognizing
that plaintiff bears the burden of proving each element of its fraud claim
by clear and convincing evidence); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 254 (1986) ("[I]n ruling on a motion for summary judgment, the
judge must view the evidence presented through the prism of the
substantive evidentiary burden."); Barmettler v. Reno Air, Inc., 114 Nev.
441, 447, 956 P.2d 1382, 1386 (1998) (reciting the required elements for a
viable fraud claim, which include a defendant's false representation to the
plaintiff and damage to the plaintiff as a result of plaintiffs justifiable
reliance on that false representation). Thus, appellants failed to meet
their burden to show that any genuine issues of material fact remained in
dispute regarding their fraud claim. Wood, 121 Nev. at 729, 121 P.3d at
1029. Because appellants' civil conspiracy to commit fraud, breach of
fiduciary duty, and aiding and abetting breach of fiduciary duty claims
were predicated on the same alleged misrepresentations regarding the
value and actual purchase price of the business as set forth in the various
agreements, the district court also properly granted summary judgment
on those claims. 1 Wood, 121 Nev. at 729, 121 P.3d at 1029.
As to respondents' counterclaim for breach of the reconveyance
agreement, the district court properly determined that the agreement's
1 The district court alternatively granted summary judgment based
on the expiration of the statutes of limitation. In light of this order, we
need not reach this issue.
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release provision was lear on its face and thus should be enforced as
written. State ex rel. Masto v. Second Judicial Dig. Court, 125 Nev. 37,
44, 199 P.3d 828, 832 (2009); see Chwialkowski v. Sachs, 108 Nev. 404,
406-07, 834 P.2d 405, 406 (1992) (holding that summary judgment was
proper based on an unambiguous release provision in a contract).
Although appellants argued that the reconveyance agreement was
procured through fraud and was thus unenforceable, the evidence showed
that appellants' board members were aware that the agreement would
contain a release provigon, and no board member objected to the inclusion
of a mutual release of claims. While appellants also argue that they were
not aware of their claims at the time the agreement was approved and
signed, the agreement released all claims related to the purchase and sale
of the employment services agency "whether known or unknown." The
district court therefore correctly determined as a matter of law that
appellants breached the reconveyance agreement when they filed their
amended complaint asserting claims against respondents. Chwialkowski,
108 Nev. at 406-07, 834 P.2d at 406. Thus, we affirm the district court's
summary judgment on respondents' counterclaim.
Attorney fees and costs
Appellants argue that because their claims were grounded on
fraud and conspiracy rather than a dispute over the reconveyance
agreement, the district court abused its discretion by awarding fees under
the prevailing party provision in the reconveyance agreement. We
disagree. Appellants I alleged that respondents' misrepresentations led
them to reconvey the employment services agency at a below-market price
and that they were entitled to damages as a result. The reconveyance
agreement broadly provides for an award of attorney fees and costs to the
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prevailing party based ion "any dispute or disagreement arising out of or in
connection with" the I agreement. As appellants' complaint directly
implicated the reconveyance agreement, respondents' attorney fees were
recoverable under that agreement's prevailing party provision. Davis V.
Beling, 128 Nev. 3012, 321, 278 P.3d 501, 515 (2012) (noting that attorney
fees are recoverable when authorized by contract and whether a contract
authorizes a fee award' is a question of law that is reviewed de novo). And
although appellants also argue that the award was excessive based on the
amount of work done and the unreasonableness of the hourly rates
charged by respondents' attorneys and paralegals, the district court
considered the necessary factors, including the quality of the advocacy and
the favorable result obtained, in granting in part respondents' motion for
attorney fees and awarding them $90,000 less than they requested. Kahn
v. Morse & Mowbray, 121 Nev. 464, 479, 117 P.3d 227, 238 (2005) ("The
decision to award attorney fees is within the sound discretion of the
district court and will not be overturned absent a manifest abuse of
discretion." (quotations omitted)); Brunzell v. Golden Gate Nat'l Bank, 85
Nev. 345, 349-50, 455 P.2d 31, 33 (1969). We perceive no abuse of
discretion in that determination, and we affirm the district court's award
of attorney fees.
As to the costs award, we agree with appellants that
respondents failed to show that certain expenses were actually incurred in
the litigation and thus should not have been included in the costs award.
Cadle Co. v. Woods & Erickson, LLP, 131 Nev., Adv. Op. 15, 345 P.3d
1049, 1054 (2015) (holding that district courts are given "wide, but not
unlimited, discretion to award costs to prevailing parties"); see also NRS
18.020 and NRS 18.050. In particular, the $12,633.79 awarded for in-
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house litigation costs was based on respondents' estimate, arrived at by
calculating 2.5% of inVoiced attorney fees. "[P]arties may not simply
estimate a reasonable ainount of costs," but must show that the costs were
actually incurred. Cadle Co., 131 Nev., Adv. Op. 15, 345 P.3d at 1054; see
GibeRini v. Klindt, 110 Nev. 1201, 1205-06, 885 P.2d 540, 543 (1994). As
respondents failed to show that $12,633.79 was actually incurred as in-
house litigation costs, we reverse the district court's award of these costs.
For the same reason, we reverse the district court's award of $426 in "per
diem" travel costs, as respondents did not show that they actually incurred
the $426 in costs. Cadle Co., 131 Nev., Adv. Op. 15, 345 P.3d at 1054. As
the remainder of the costs were supported by a memorandum of costs and
documentation showing they were actually incurred, we perceive no abuse
of discretion in the district court's decision to award the remaining costs,
and therefore affirm the remainder of the district court's costs award.
Respondents' cross-appeal
In their cross-appeal, respondents argue that the district court
erred by rejecting their alternative arguments that they were entitled to
attorney fees and costs as special damages or based on their offer of
judgment. Respondents do not argue that they were entitled to fees
beyond those awarded by the district court under the prevailing party
provision of the reconveyance agreement. Respondents therefore lack
standing to appeal as they prevailed on their request for fees and costs
and were not aggrieved by the district court's order. NRAP 3A(a); Ford v.
Showboat Operating Co., 110 Nev. 752, 755, 877 P.2d 546, 548 (1994). We
therefore dismiss respondents' cross-appeal.
In sum, and consistent with the foregoing, we affirm the
district court's summary judgments, affirm in part the attorney fees and
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costs award and reverse in part to the extent that it included costs not
supported by documentation showing that the costs were actually
incurred, and dismiss the cross-appeal.
It is so ORDERED.
N vVvv —NJ J.
Gibbons
cc: Hon. Susan Scann., District Judge
Ara H. Shirinian; Settlement Judge
Howard & Howard Attorneys PLLC
Brownstein Hyatt Farber Schreck, LLP/Las Vegas
Eighth District Court Clerk
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Parks! America, Inc. v. Harper
Combined Opinion