Popowitz v. B. A. Sundown

claimed that the first payment was due 30 days after it executed the note; and the Popowitzes claimed that the initial payment was due the same day Mountain Vista executed the note. The district court determined that Mountain Vista did not breach the note's terms and granted summary judgment in Mountain Vista's favor. Then, Mountain Vista filed a motion seeking attorney fees based on a provision in the note and seeking costs pursuant to NRS 18.020. After trial on the Popowitzes' claims against B.A. Sundown, the jury rendered a judgment in the Popowitzes' favor; however, the judgment was not greater than the amount in B.A. Sundown's offer of judgment. Thereafter, B.A. Sundown and the Popowitzes filed motions seeking fees and costs. The district court held a hearing on the parties' motions for attorney fees and costs. The court determined that B.A. Sundown's offer of judgment was valid, and because the Popowitzes failed to obtain a better judgment at trial, the court denied the Popowitzes' motion for fees and costs. After analyzing the Beattie and Brunzell factors, the district court granted B.A. Sundown's motion for fees and costs. See Beattie v. Thomas, 99 Nev. 579, 588-89, 668 P.2d 268, 274 (1983) (setting forth factors for the court to consider regarding allowance of fees and costs under NRCP 68); Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969) (presenting factors for a court to consider in determining the amount of an attorney fees award). Further, the court granted Mountain Vista attorney fees pursuant to the promissory note and costs pursuant to NRS 18.020. This appeal followed. This court generally reviews the district court's decision regarding attorney fees for an abuse of discretion. Gunderson v. D.R.

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Horton, Inc., 130 Nev. „ 319 P.3d 606, 615 (2014). Under NRCP 68, if an offeree rejects an offer of judgment and fails to obtain a more favorable judgment at trial, the offeree cannot recover attorney fees or costs and must pay the offeror's post-offer costs and fees. "An offer of judgment must be unconditional and for a definite amount" to be valid for the purposes of awarding attorney fees and costs under NRCP 68. Pombo v. Nev. Apartment Ass'n, 113 Nev. 559, 562, 938 P.2d 725, 727 (1997). Here, the Popowitzes assert that B.A. Sundown's offer of judgment was invalid because it contained four impermissible conditions: (1) accepting the offer would preclude the Popowitzes from seeking additional compensation for attorney fees, (2) acceptance would resolve all claims between the parties, (3) the offer was not an admission of liability, and (4) the offer was not an admission that the Popowitzes suffered any damages. We disagree. A condition is a future and uncertain event which triggers or negates an obligation. See Black's Law Dictionary 333 (9th ed. 2009). Therefore, an offer of judgment is conditional if the offer's effectiveness is dependent on anything other than the offeree accepting the offer. The provisions barring attorney fees and resolving all claims between the parties are not conditions, but consequences of accepting the offer. Further, the provisions regarding liability and damages are declarations of the offer's effect. Accordingly, the offer of judgment was valid. Consequently, under NRCP 68, the Popowitzes are precluded from recovering fees and costs from BA. Sundown, and because the Popowitzes failed to obtain a more favorable judgment at trial, B.A. Sundown is entitled to its reasonable post-offer fees and costs.

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This court defers to a district court's decision to grant fees and costs under NRCP 68 as long as the district court fully considers the Beanie factors. Wynn, v. Smith, 117 Nev. 6, 13-14, 16 P.3d 424, 428-29 (2001). Here, the district court considered the Beattie and Brunzell factors before awarding B.A. Sundown fees and costs pursuant to NRCP 68. Thus, in accordance with Wynn, we affirm the district court's award of fees and costs to B.A. Sundown. Additionally, after reviewing the promissory note between Marilyn and Mountain Vista, we determine that Marilyn was bound to pay Mountain Vista attorney fees. Further, as the prevailing party, Mountain Vista was entitled to costs pursuant to NRS 18.020. Therefore, the district court properly granted Mountain Vista fees and costs. Accordingly, after considering all of the parties' arguments on appeal, we ORDER the judgment of the district court AFFIRMED.

C.J. Gibbons

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Parraguirre

Saitta

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cc: Hon. Michelle Leavitt, District Judge Marquis Aurbach Coffing McDonald Carano Wilson LLP/Las Vegas McDonald Carano Wilson LLP/Reno Eighth District Court Clerk

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