Rosemere Estates Property Owners Assoc. v. Lytle C/W 65294/65721 ( 2015 )


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  •                   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
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    Document Vt.   r-   201
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    Document NH r" Her - 31751
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    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
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    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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