Docket No. 63942
In their summary judgment motions, the parties
acknowledged that no genuine issues of material fact existed, that the sole
legal issue for the district court to determine was whether Rosemere
Estates Property Owners Association needed unanimous consent from its
members to amend its CC&Rs, and that NRS 116.2117 did not dictate the
outcome of this legal issue. Based on this common ground, the district
court concluded that unanimous consent was required because, under
common-law principles, the original CC&Rs were reciprocal servitudes
that could not be amended absent unanimous consent from the affected
property owners.
We have considered the arguments in Rosemere's opening
brief and conclude that they do not call into question the basis for the
district court's summary judgment. Nor are we persuaded that
Rosemere's arguments otherwise warrant reversal of the summary
judgment. In particular, we are not persuaded by Rosemere's argument
regarding Section 37 of 1999 Senate Bill 451 because Rosemere has not
identified any provision in the original CC&Rs that did not conform to
NRS Chapter 116 and that would have required amendment.' As for
Rosemere's argument that the Lytles failed to include a sworn statement
in their complaint, this court has never held that NRS 38.330(5)'s sworn-
statement requirement is jurisdictional. Accordingly, we affirm the
district court's July 30, 2013, summary judgment in Docket No. 63942. 2
'Nor has Rosemere explained how its 2007 amendments complied
with Section 37's October 2000 deadline for making such amendments.
2 We have considered Rosemere's remaining arguments and conclude
that they either lack merit, have no bearing on the legal issue presented to
the district court, or both.
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Docket No. 65294
The Lytles challenge the district court's (1) order denying their
request for monetary damages and (2) order partially granting Rosemere's
motion to retax costs.
Monetary damages
The district court denied the Lytles' request for monetary
damages based on the conclusion that monetary damages are not
recoverable in a declaratory relief action. On appeal, the Lytles contend
that this conclusion was erroneous, as NRS 30.100 expressly authorizes
district courts to award monetary damages in declaratory relief actions.
We agree. 3 See Fred Ahlert Music Corp. u. Warner/Chappell Music, Inc.,
155 F.3d 17, 25 (2d Cir. 1998) (recognizing that district courts have
authority under NRS 30.100's federal counterpart to award monetary
damages as "further relief'). Accordingly, we vacate the district court's
March 11, 2014, order and remand for further proceedings consistent with
this order. 4
3 Rosemere contends that the Lytles did not rely on NRS 30.100 in
district court and should be prohibited from doing so for the first time on
appeal. Cf. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981,
983 (1981) ("A point not urged in trial court. . . is deemed to have been
waived and will not be considered on appeal."). Because the district court
sua sponte denied the Lytles' request for damages based on an erroneous
legal conclusion, Old Aztec's waiver rule is inapplicable.
4 Rosemere contends that the district court's order should be affirmed
on the alternative ground that the Lytles failed to provide admissible
evidence to support their requested monetary damages. Because the
record on appeal is unclear in this respect, we decline to do so. See Zugel
v. Miller, 99 Nev. 100, 101, 659 P.2d 296, 297 (1983) ("This court is not a
fact-finding tribunal. . . .").
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Costs
The Lytles contend that the district court abused its discretion
in partially granting Rosemere's motion to retax costs. Cadle Co. v. Woods
& Erickson, LLP, 131 Nev., Adv. Op. 15, 345 P.3d 1049, 1054 (2015)
(recognizing that district courts have wide discretion in determining
whether to award costs). In particular, the Lytles contend that they
provided sufficient documentation to demonstrate that they reasonably,
necessarily, and actually incurred costs relating to (1) photocopies and
telecopies, and (2) filing fees and e-filing charges. We disagree with the
Lytles' contention with respect to the first category, see id., but agree with
the Lytles' contention with respect to the second category, particularly in
light of Rosemere's failure to specifically address that issue. See Ozawa v.
Vision Airlines, Inc., 125 Nev. 556, 563, 216 P.3d 788, 793 (2009) (treating
the failure to respond to an argument as a confession of error).
Accordingly, we reverse the district court's February 13, 2014, order to the
extent that it denied the Lytles' request for costs relating to filing fees and
e-filing charges. All other aspects of that order are affirmed.
Docket No. 65721
The parties dispute whether the Lytles timely filed their
motion for attorney fees. We agree with the Lytles that their motion was
filed within 20 days from the notice of entry of the final judgment, which
rendered their motion timely. See Barbara Ann Hollier Trust v. Shack,
131 Nev., Adv. Op. 59, P.3d , (2015); see also Miltimore Sales,
Inc. v. Int'l Rectifier, Inc., 412 F.3d 685, 688 (6th Cir. 2005); Weyant v.
Okst, 198 F.3d 311, 314 (2d Cir. 1999).
The parties next dispute whether a statute, rule, or
contractual provision authorized the Lytles to recover attorney fees. Both
parties agree, however, that NRS 116.4117 authorizes attorney fees if the
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prevailing party suffers "actual damages." NRS 116.4117(1), (6). In light
of our determination in Docket No. 65294 that the Lytles may be entitled
to monetary damages, cf. Davis v. Beling, 128 Nev., Adv. Op. 28, 278 P.3d
501, 512 (2012) (equating "actual damages" with "compensatory
damages"), the district court's denial of attorney fees may have been
improper.° Accordingly, we vacate the district court's May 29, 2014, order
denying attorney fees and remand for further proceedings consistent with
this order.
It is so ORDERED.
Saitta
Gibboris Pickering
P debt (iv J.
cc: Hon. Michelle Leavitt, District Judge
Sterling Law, LLC
Gibbs Giden Locher Turner Senet & Wittbrodt LLP
Leach Johnson Song & Gruchow
The Williamson Law Office, PLLC
Eighth District Court Clerk
°In light of our determination in this respect, we decline to consider
the parties' arguments regarding whether the original CC&Rs or the
amended CC&Rs authorized attorney fees. We likewise decline to
consider the parties' arguments regarding whether the Lytles' requested
fees were reasonable.
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DocketNunlIF - 65970
II I I I 1 1 1 1
Document Vt. r- 201
I I 210 I 1 1
Document NH r" Her - 31751
I 111 I II I I
MI
IN THE SUPREME COURT OF THE STATE OF NEVADA
MARION COLLINS, No. 65970
Appellant/Cross-Respondent,
vs.
OCEAN WEST NEVADA CORP.,
FILED
Respondent/Cross-Appellant. OCT 1 9 2015
TRACE K. UNDEMAN
CLERK OF.ALJPREME COURT
BY r 771
DEPUT9I-C4-LAEHI-rlY
ORDER AFFIRMING IN PART,
REVERSING IN PART AND REMANDING
This is an appeal and cross-appeal from a district court
judgment in a breach of contract action. Eighth Judicial District Court,
Clark County; Stefany Miley, Judge.
The parties entered into a contract for respondent to make
improvements to appellant's home to make it handicap accessible. The
improvements would be paid for through a grant appellant received from
the Department of Veteran Affairs (VA). Respondent substantially
completed the improvements, but then appellant denied respondent access
to the home to finish the work. Both parties sued and the matter went to
arbitration where respondent was awarded $16,893.87. Appellant filed a
request for a trial de novo and after a short trial, a judgment was entered
wherein respondent received an additional $1,500 and appellant received
$1,500. The district court also awarded respondent its costs but denied
respondent's request for attorney fees. This appeal and cross-appeal
followed.
As an initial matter, appellant argues that the district court
lacked subject matter jurisdiction because respondent failed to exhaust its
administrative remedies that were available under the escrow agreement.
Because respondent's action is based on the building contract, not the
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escrow agreement, and exhaustion of administrative remedies was not
(0) 19(17A
i,5 -3115
statutorily mandated, the district court had subject matter jurisdiction.'
See Eluska v. Andrus, 587 F.2d 996, 999 (9th Cir. 1978) (explaining that
when exhaustion is statutorily mandated, the exhaustion requirement is
jurisdictional but when it is not, the court has discretion to dismiss the
action). Similarly, because the VA was not a party to the building contract
that was the basis for respondent's breach of contract action and the VA
was merely the escrowee of appellant's grant funds, appellant's argument
that the VA was a necessary party is without merit. See NRCP 19(a)
(defining necessary parties).
Further, we conclude that the district court did not err in
awarding respondent damages for appellant's breach of the building
contract because respondent was properly licensed to complete the work,
appellant failed to pay respondent through the funds supplied by his VA
grant or otherwise, and the timeframe for completing the project was
extended. 2 Whitemaine v. Aniskovich, 124 Nev. 302, 308, 183 P.3d 137,
141 (2008) (providing that this court reviews contract interpretation de
novo and the district court's findings of facts for• substantial evidence).
Also, the district court did not abuse its discretion in awarding respondent
its costs as the prevailing party because the district court's order indicates
'We note that nothing in the record indicates that appellant
presented this argument to the district court and requested dismissal.
2 Inregard to appellant's argument that the district court should
have compelled arbitration between respondent and its subcontractor, who
is not a party on appeal, because appellant was not a party to the
arbitration agreement between respondent and the subcontractor,
appellant did not have standing to compel arbitration between the two
parties. See generally Truck Ins. Exch. v. Palmer J. Swanson, Inc., 124
Nev. 629, 633-34, 189 P.3d 656, 659(2008) (explaining that if one does not
have an agreement to arbitrate with a party, then one cannot force that
party to arbitrate).
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that the $1,500 award to respondent was in addition to the $16,893.87
that respondent had already received from the arbitrator. Parodi v.
Budetti, 115 Nev. 236, 240, 984 P.2d 172, 174 (1999) (explaining that this
court reviews an award of costs and fees for an abuse of discretion).
We conclude, however, that the district court abused its
discretion in denying respondent's request for its attorney fees. Id. NAR
20(B)(2)(a) provides that if a party requests a trial de novo after an
arbitration award of less than $20,000 and does not reduce the judgment
by at least twenty percent, the non-requesting party is entitled to its fees
incurred in the trial de novo. Because appellant failed to reduce
respondent's award by at least twenty percent, the district court should
have awarded respondent its attorney fees incurred in the trial de novo.
Therefore, while we affirm the district court's judgment and award of
costs, we reverse the court's denial of respondent's request for attorney
fees and remand this matter for proceedings consistent with this order.
It is so ORDERED.
Saitta
J.
Gibboris Pickering
cc: Hon. Stefany Miley, District Judge
Thomas J. Tanksley, Settlement Judge
Michael R. Pontoni
Jolley Urga Wirth Woodbury & Little
Eighth District Court Clerk
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Rosemere Estates Property Owners Assoc. v. Lytle C/W 65294/65721
Combined Opinion