IN THE SUPREME COURT OF THE STATE OF NEVADA
FORE STARS, LTD., A NEVADA No. 82338
LIMITED LIABILITY COMPANY; 180
LAND CO., LLC, A NEVADA LIMITED
LIABILITY COMPANY; AND SEVENTY
ACRES, LLC, A NEVADA LIMITED FILED
LIABILITY COMPANY,
Appellants, APR 2 9 2022
vs. cuat
ELTABETH A. BROWN
COURT
DANIEL OMERZA; DARREN BRESEE; wif
DEPUTY CLE,RK
AND STEVE CARIA,
Respondents.
FORE STARS, LTD., A NEVADA No. 82880
LIMITED LIABILITY COMPANY; 180
LAND CO., LLC, A NEVADA LIMITED
LIABILITY COMPANY; AND SEVENTY
ACRES, LLC, A NEVADA LIMITED
LIABILITY COMPANY,
Appellants,
vs.
DANIEL OMERZA; DARREN BRESEE;
AND STEVE CARIA,
Respondents.
ORDER AFFIRMING (DOCKET NO. 82338) AND
VACATING AND REMANDING (DOCKET NO. 82880)
These are consolidated appeals from district court orders
dismissing a tort complaint and awarding attorney fees. Eighth Judicial
District Court, Clark County; Richard Scotti, Judge (No. 82338) and Crystal
Eller, Judge (No. 82880).
Appellants are landowners planning to build residential
housing on former golf course land adjacent to a community in which
'Pursuant to NRAP 3401), we have determined that oral argument
is not warranted.
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respondents are homeowners. Appellants filed a complaint for damages
under various tort theories and for injunctive relief, generally alleging that
respondents signed a form declaration containing false statements to
present to the City of Las Vegas for the purpose of wrongly forestalling the
landowners plans, and that they circulated the form declaration in the
community for more signatures. Respondents filed an anti-SLAPP special
motion to dismiss, which the district court denied. On appeal, this court
vacated and remanded, concluding that respondents had met their burden
under step one of the anti-SLAPP analytical framework by showing that the
declarations were good faith communications in furtherance of their right
to petition or to free speech in direct connection with an issue of public
concern. On remand, the district court granted appellants' request for
limited discovery as to their step-two burden to show a reasonable
probability of prevailing on their claims. After briefing and a hearing, the
district court granted respondents' special motion to dismiss and their
motion for roughly $363,000 in attorney fees. These appeals followed.
Appellants first argue that the district court improperly limited
discovery, but the record shows that the court permitted discovery
consistent with NRS 41.660(4) and with appellants' discovery request as
briefed on remand. Thus, we perceive no reversible error based on the scope
of discovery allowed.2
2Appellants also argue that respondents provided inadequate
discovery responses, but appellants did not move for an order compelling
discovery. Thus, appellants argument in this regard does not warrant relief
on appeal. Cf. Valley Health Sys., LLC v. Eighth Judicial Dist. Court, 127
Nev. 167, 172, 252 P.3d 676, 679 (2011) (concluding that waiver applies
when a party fails to timely raise a discovery dispute with the discovery
commissioner and observing that one purpose of the waiver "rule is to allow
the lower tribunal the first opportunity to decide the issue").
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Appellants next argue that the district court erroneously
concluded that they failed to meet their step-two burden under NRS
41.660(3)(b) to demonstrate with prima facie evidence a probability of
prevailing on their conspiracy claim,3 and it thus erred in granting the
motion to dismiss. We disagree, as the record supports the district court's
conclusion that appellants did not show with prima facie evidence an
agreement to accomplish an unlawful objective for the purpose of harming
appellants, and that appellants suffered damages as a result, which are
necessary elements of their conspiracy claim.4 Smith v. Zilverberg, 137
Nev., Adv. Op. 7, 481 P.3d 1222, 1226 (2021) (reviewing de novo an order
resolving an anti-SLAPP special motion to dismiss); Abrams v. Sanson, 136
Nev. 83, 92, 458 P.3d 1062, 1070 (2020) (concluding that plaintiffs must
present prima facie evidence supporting the elements of their claims to
satisfy the minimal merit standard under the anti-SLAPP step-two
burden); Bikkina v. Mahadevan, 193 Cal. Rptr. 3d 499, 511 (Ct. App. 2015)
(recognizing that on the second step of the inquiry, the plaintiff must show
that "the complaint is both legally sufficient and supported by a sufficient
prima facie showing of facts to sustain a favorable judgment if plaintiffs
evidence is credited" (internal quotation marks omitted)); see Consolidated
3Appellants complaint asserted several other tort-based claims and
sought equitable and injunctive relief, but the record supports the district
court's conclusion that, in seeking limited discovery and briefing and
arguing against the special motion to dismiss on remand, appellants only
addressed the conspiracy claim and did not argue that they met their
burden on the remaining claims. We therefore do not address those claims.
4The record does not support appellants' argument that the district
court applied an incorrect standard on remand in analyzing the motion to
dismiss and determining whether appellants met their step-two burden.
3
L. .
Generator-Nev., Inc. v. Cummins Engine Co., 114 Nev. 1304, 1311, 971 P.2d
1251, 1256 (1998) (describing the elements of "[a]n actionable civil
conspiracy claim"); Aldabe v. Adams, 81 Nev. 280, 286, 402 P.2d 34, 37
(1965) ("The damage for which recovery may be had in a civil action is not
the conspiracy itself but the injury to the plaintiff produced by specific overt
acts." (internal quotation marks omitted)), overruled on other grounds by
Siragusa v. Brown, 114 Nev. 1384 (1998).
As to the damages element, although appellants assert that "it
is public knowledge that [they] have lost economic opportunities to develop
the Land and that it remains undeveloped today," and ask that we consider
this assertion as a "matter[ ] of public record," they do not point to any
evidence in the record or a public record supporting that statement. Even
if we credited the statement as true, appellants did not present evidence
that respondents actions that are challenged in this case caused any such
damages, and appellants acknowledge that they prevailed in litigation in
which other parties challenged the City's approval of appellants' land use
applications. Thus, the district court properly determined that appellants
failed to meet their step-two burden of demonstrating with prima facie
evidence a probability of prevailing on their claims.5
Appellants lastly challenge the district court's attorney fee
award as unsupported and excessive. As to that issue, the district court's
order does not include an express analysis of the four factors listed in
Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349, 455 P.2d 31, 33
(1969) (requiring that the district court consider (1) the attorney's
professional qualities and experience, (2) the complexity and nature of the
5In light of this conclusion, we need not address the district court's
alternative basis for dismissing appellants' complaint.
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litigation, (3) the work performed by the attorney, and (4) the result), and
it is not clear from the record that the district court meaningfully considered
all the factors in granting the full amount of fees respondents requested.°
See Logan v. Abe, 131 Nev. 260, 266-67, 350 P.3d 1139, 1143 (2015)
(observing that when the "district court demonstrate[s] that it considered
the [relevant] factors, its award of attorney fees will be upheld if it is
supported by substantial evidence). While the district court has discretion
in determining a reasonable award of attorney fees, it did not make the
required findings to support the amount awarded here. Id. at 266, 350 P.3d
at 1143 (reviewing an attorney fee award for an abuse of discretion); Miller
v. Wilfong, 121 Nev. 619, 623, 119 P.3d 727, 730 (2005) (providing that "the
court must evaluate the factors set forth in Brunzelr when exercising its
discretion to determine a reasonable amount of attorney fees to award
under a statute); see also Beattie v. Thomas, 99 Nev. 579, 589, 668 P.2d 268,
274 (1983) (concluding that a district court abuses its discretion if it awards
the full amount of attorney fees requested without making "findings based
on evidence that the attorney's fees sought are reasonable and justified").
Thus, we agree with appellants that the district court abused its discretion
by awarding attorney fees without making the required findings.
Consistent with the foregoing, we affirm the district court's
order granting respondents special motion to dismiss in Docket No. 82338,
and we vacate the order awarding attorney fees in Docket No. 82880, and
°The district court awarded the full amount of fees requested except
for fee enhancements respondents sought.
5
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remand for the court to consider the Brunzell factors and make the
necessary findings to support the fee amount awarded.7
It is so ORDERED.8
4:24m#
Parraguirre *
6.PK, Sr.J.
Cadish
cc: Chief Judge, Eighth Judicial District Court
Department 2, Eighth Judicial District Court
Department 19, Eighth Judicial District Court
Paul M. Haire, Settlement Judge
EHB Companies, LLC
The Law Office of Kristina Wildeveld & Associates
Brownstein Hyatt Farber Schreck, LLP/Las Vegas
Eighth District Court Clerk
7We have considered appellant& remaining arguments on appeal and
conclude that they were either not raised in district court, Old Aztec Mine,
Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981), or do not warrant
additional relief.
8The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
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