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Logan v. Abe

Supreme Court of Nevada

June 4, 2015

ROBERT LOGAN AND JAMIE LOGAN, HUSBAND AND WIFE, Appellants,
v.
CALVIN J. ABE, AN INDIVIDUAL; RON MARTINSON, AN INDIVIDUAL; AND ABE PACIFIC HEIGHTS PROPERTIES, LLC, A FOREIGN LIMITED LIABILITY COMPANY, Respondents

Appeal from a post-judgment award of attorney fees and costs in a personal injury action. Second Judicial District Court, Washoe County; David A. Hardy, Judge.

Wm. Patterson Cashill, Ltd., and Wm. Patterson Cashill, Reno; Bradley, Drendel & Jeanney and William C. Jeanney, Reno, for Appellants.

LeVangie Law Group and Jeffery C. Long, Jason A. Rose, and Michael J. LeVangie, Carson City, for Respondents.

BEFORE SAITTA, GIBBONS and PICKERING, JJ.

OPINION

Page 1140

SAITTA, J.

A party who makes an unimproved-upon offer of judgment-- an offer that is more favorable to the opposing party than the judgment ultimately rendered by the district court--is entitled to recover costs and reasonable attorney fees incurred after making the offer of judgment. NRS 17.115(4); NRCP 68(f)(2). At issue here is (1) whether a party can recover these expenses if they were paid by a third party on the party's behalf, (2) whether the district court abused its discretion in the present case by awarding attorney fees, and (3) whether the district court abused its discretion in the present case by awarding costs in excess of $1,500 for the fees of an expert witness that did not testify and was not deposed.

Because a party incurs an expense at the time the expense is paid or the party " become[s] legally obligated to pay it," United Services Auto Ass'n v. Schlang, 111 Nev. 486, 490, 894 P.2d 967, 969 (1995) (internal quotations omitted), the party need not actually pay the expense to have incurred it. Therefore, we hold that a party can incur an expense even if a third party pays the expense

Page 1141

on the party's behalf, as long as the party would otherwise be legally obligated to pay the expense. Thus, costs and reasonable attorney fees that a third party paid on behalf of a litigant can be recovered under NRS 17.115(4) and NRCP 68(f)(2). In addition, we conclude that in the present case the district court did not abuse its discretion in awarding expert witness fees in excess of $1,500 for an expert who did not testify at trial and was not deposed.

FACTUAL AND PROCEDURAL HISTORY

Appellants Robert and Jamie Logan sued respondents Calvin J. Abe, Abe Pacific Heights Properties, LLC (Abe Properties), and Ron Martinson for personal injuries that Robert Logan suffered when he was shot by an employee of a hotel. The Logans alleged that Abe Properties owned the hotel, Abe operated the hotel, and Martinson was the hotel's general manager.

Before trial, Abe, Abe Properties, and Martinson made an offer of judgment to the Logans in which they offered to pay $55,000 to settle the Logans' claims. The record does not show that the Logans accepted this offer, and the case proceeded to a jury trial.

After the jury returned a verdict in their favor, Abe, Abe Properties, and Martinson made a motion for attorney fees and costs, which had been paid by their insurer. The Logans opposed the motion. Reasoning that Abe, Abe Properties, and Martinson were entitled to attorney fees and costs under NRS 17.115 and NRCP 68 because the Logans failed to improve upon their offer of judgment, the district court awarded $71,907.50 in attorney fees and $24,812.60 in costs, including $7,290 for the fees of an expert witness who did not testify. The Logans now appeal the award of attorney fees and costs.

DISCUSSION

Abe, Abe Properties, and Martinson have standing to seek ...


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