IN THE SUPREME COURT OF THE STATE OF NEVADA
WYETH RANCH COMMUNITY No. 83069
ASSOCIATION,
Appellant,
vs.
MARCHAI B.T., A NEVADA BUSINESS
TRUST,
Res s ondent.
FILED
APR 2 9 2022
ORDER OF AFFIRMANCE
This is an appeal from a post-judgment order denying a request
for attorney fees. Eighth Judicial District Court, Clark County; Elizabeth
Goff Gonzalez, Judge.1
Appellant requested attorney fees under NRCP 68, which the
district court denied. In doing so, the district court found that respondent
brought its claims against appellant in good faith; that appellant's offer of
judgment was not reasonable in its amount given the potentially preclusive
effect of that offer with respect to respondent's claims against nonparty SFR
Investments; and that respondent reasonably rejected the offer given the
offer's potentially preclusive effect. See Beattie v. Thomas, 99 Nev. 579, 588-
89, 668 P.2d 268, 274 (1983) ("In exercising its discretion regarding the
allowance of fees and costs under NRCP 68, the trial court must carefully
1Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
evaluate the following factors: (1) whether the plaintiffs claim was brought
in good faith; (2) whether the defendants offer of judgment was reasonable
and in good faith in both its timing and amount; (3) whether the plaintiffs
decision to reject the offer and proceed to trial was grossly unreasonable or
in bad faith; and (4) whether the fees sought by the offeror are reasonable
and justified in amount.").
Appellant contends that the district court erred in declining to
award fees because respondent's claims were maintained in bad faith
following this court's reversal and remand of a previous appeal, and that
appellant's offer of judgment would not have preclusive effect with respect
to respondent's claims against SFR. We are not persuaded that the district
court abused its discretion.2 See Watson Rounds, P.C. v. Eighth Judicial
Dist, Court, 131 Nev. 783, 787, 358 P.3d 228, 231 (2015) (reviewing a district
court's decision regarding whether to award attorney fees for an abuse of
discretion); MB Am., Inc. v. Alaska Pac. Leasing Co., 132 Nev. 78, 88, 367
P.3d 1286, 1292 (2016) ("An abuse of discretion can occur when the district
court bases its decision on a clearly erroneous factual determination or it
disregards controlling law."). In particular, the district court denied
appellant's motion for summary judgment against respondent after this
court's remand, which indicates the district court still found respondent's
claims against appellant to be potentially meritorious.3
2We also are not persuaded by appellant's argument that a de novo
standard of review should apply.
3Thedistrict court also denied appellant's motion for reconsideration,
clarifying that the claims remained potentially meritorious because
2
Moreover, while we question whether accepting appellant's
offer of judgment would have had preclusive effect on respondent's claims
against SFR, appellant did not provide the district court with any authority
indicating that the offer would not have a preclusive effect.4 See MB Arn.,
Inc., 132 Nev. at 88, 367 P.3d at 1292 ("An abuse of discretion can occur
when the district court bases its decision on a clearly erroneous factual
determination or it disregards controlling law."); see also United States v.
Irey, 612 F.3d 1160, 1189 (11th Cir. 2010) (stating that the relevant inquiry
when reviewing for an abuse of discretion is not whether the appellate court
would come to the same conclusion, but "whether the district court's
decision was tenable" (internal quotation marks omitted)).
respondent had sufficiently alleged that it was entitled to excess proceeds
from appellant if the foreclosure sale extinguished appellant's deed of trust.
Appellant observes on appeal that the district court's judgment following
the bench trial contained certain findings that contradicted its earlier
clarification, but appellant did not coherently bring that contradiction to the
district court's attention when explaining why the Beattie v. Thomas factors
justified an award of attorney fees, and we decline to consider the potential
significance of this contradiction for the first time on appeal. Old Aztec
Mine, Inc. v. Brown, 97 Nev. 49, 52, 623, P.2d 981, 983 (1981).
40n appeal, appellant has cited to Nationstar Mortgage LLC v. Curti
Ranch Two Maintenance Assn, Inc., No. 3:17-cv-00699-LRH-CLB, 2019 WL
6877552, at *7 (D. Nev. Dec. 16, 2019), which held that a deed of trust
beneficiary's settlement with an HOA does not preclude a quiet title claim
against the HOA sale purchaser. Appellant has also cited to Bocanegra v.
Aetna Life Insurance Co., 605 S.W.2d 848, 853 (Tex. 1980), which observed
that "[o]ne may also receive something by way of settlement, even of
substantial value, under an uncertain claim without making an election
which bars recovery against another person." Appellant, however, did not
provide either of these authorities to the district court.
SUPREME COURT
of
NEVADA
3
(0) 1947A .4a0
Accordingly, we conclude that the district court was within its
discretion in finding that the Beattie v. Thomas factors did not weigh in
favor of awarding appellant attorney fees. We therefore
ORDER the judgment of the district court AFFIRMED.5
Parraguirre
J. Sr.J.
Cadish
cc: Chief Judge, Eighth Judicial District Court
Department 11, Eighth Judicial District Court
Thomas J. Tanksley, Settlement Judge
Lipson Neilson P.C.
David J. Merrill, P.C.
Eighth District Court Clerk
5The Honorable Mark Gibbons, Senior Justice, participated in the
decision of this matter under a general order of assignment.
4