from a district court judgment in a breach of contract action
and post-judgment orders regarding attorney fees and costs.
Eighth Judicial District Court, Clark County; Kerry Louise
McDonald Carano LLP and Pat Lundvall and Rory T. Kay, Las
Vegas, for Appellant.
Jimmerson Law Firm, P.C., and James M. Jimmerson and James J.
Jimmerson, Las Vegas, for Respondents.
HARDESTY, STIGLICH and SILVER, JJ.
adheres to the American Rule of attorney fees- attorney fees
may not be awarded unless there is a statute, rule, or
providing for such an award. This court, however, has
recognized a narrow and limited exception for attorney fees
as special damages. We have outlined certain requirements for
pleading and proving attorney fees as special damages, and we
have recognized scenarios that may warrant such fees. We take
this opportunity to clarify that attorney fees incurred by a
plaintiff in bringing a two-party breach-of-contract claim
against a defendant do not constitute special damages under
the narrow and limited exceptions recognized by this court.
Because the attorney fees at issue here do not fall into any
of the narrow and limited exceptions that permit attorney
fees as special damages, we reverse the portion of the
district court's judgment awarding attorney fees as
special damages. We affirm the portion of the district
court's award of attorney fees that was based on the
parties' contractual prevailing party provision and
remand the matter because the prevailing parties may be
entitled to additional attorney fees in light of this
1990s, Coyote Springs Investment, LLC (CSI), began planning a
development project called "Coyote Springs," to be
located over thousands of acres of undeveloped land in
Lincoln and Clark Counties of Nevada. Real estate brokers
James Wolfram and Walter Wilkes introduced appellant Pardee Homes
of Nevada (Pardee) to CSI to initiate Pardee's purchase
of portions of Coyote Springs. Pardee and CSI subsequently
entered into an agreement (Option Agreement) wherein Pardee
agreed to purchase from CSI certain lands designated for the
development of single-family residences. Pardee's
purchase was to be paid in installments. Additionally, the
agreement gave Pardee a 40-year option to purchase other
compensate Wolfram and Wilkes for procuring Pardee's
purchase of real property from CSI, Pardee agreed to pay the
brokers specified commissions for purchases made pursuant to
Pardee and CSFs Option Agreement (Commission Agreement).
Additionally, Pardee agreed to keep the brokers reasonably
apprised of all matters related to their commission payments
and to provide the brokers with documentation corresponding
to Pardee's purchases under the Option Agreement. Wolfram
and Wilkes received commissions from March 2005 through March
2009 totaling $2, 632, 000.
and CSI amended the Option Agreement several times after its
inception. Wolfram and Wilkes received the first two
amendments I to the Option Agreement as well as the Amended
and Restated Option Agreement (AROA), but they did not
receive any further amendments to the AROA before they filed
the underlying lawsuit. When Wolfram and Wilkes requested
information to verify the types of property Pardee was
purchasing from CSI and to confirm that its commission
payments were accurate, Pardee provided some information
concerning its acquisition of property for single-family
residences but not all of the requested information. Wolfram
and Wilkes continued to ask Pardee for additional information
regarding land acquisitions and designations, requested the
same from the title companies processing the payments, and
attempted to obtain it themselves by searching public
records. Wolfram and Wilkes also retained an attorney to seek
the requested information.
Wolfram and Wilkes were unable to obtain the sought-after
information, they filed suit against Pardee. In the
complaint, they alleged three causes of action pertaining to
Pardee's obligations under the Commission Agreement: (1)
breach of contract, (2) breach of the implied covenant of
good faith and fair dealing, and (3) an accounting.
Subsequently the district court, despite Pardee's
opposition, granted leave for Wolfram and Wilkes to file an
amended complaint to plead attorney fees as special damages.
Pardee raised a counterclaim of breach of the implied
covenant of good faith and fair dealing against Wolfram and
bench trial, the district court found in favor of Wolfram and
Wilkes on their causes of action and against Pardee on its
counterclaim. Specifically, the district court held Pardee
breached the Commission Agreement and the implied covenant of
good faith and fair dealing by failing to keep Wolfram and
Wilkes reasonably informed per the terms of the contract and
by refusing to provide Wolfram and Wilkes with the requested
documentation. The district court concluded there was a
special relationship between Pardee and the brokers insofar
as the respondents had to rely upon Pardee to keep them
reasonably informed of any developments at Coyote Springs
that could impact their commission payments.
district court ordered an accounting, demanding that Pardee
provide Wolfram and Wilkes-and their successors or
assigns-all future amendments made to the AROA and to
continue to keep the respondents reasonably informed under
the Commission Agreement. Additionally, the district court
awarded Wolfram and Wilkes attorney fees on two grounds: (1)
$135, 500 as special damages, concluding that Wolfram and
Wilkes were forced to file suit against Pardee in order to
get the information to which they were entitled pursuant to