Electronically Filed
`Apr 16 2025 03:33 PM
`Elizabeth A. Brown
`Clerk of Supreme Court
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`IN THE SUPREME COURT OF
`THE STATE OF NEVADA
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`_____________________________
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`DEBRA S. STEWART
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`Appellant,
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`v.
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`MARY VALLINE
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`Respondent.
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`SUPREME COURT CASE NO. 88999
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`Appeal from the Judgment
`Civil Case No. CV21-00915
`Second Judicial District Court of the State of Nevada, Washoe County
`Honorable Tammy M. Riggs, District Judge
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`RESPONDENT’S ANSWERING BRIEF
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`McCormick, Barstow, Sheppard,
`Wayte & Carruth LLP
`Michael A. Pintar
`Nevada Bar No. 3789
`201 W. Liberty Street, Suite 320
`Reno, Nevada 89501
`Telephone: (775) 333-0400
`Facsimile: (775) 333-0412
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`ATTORNEY FOR APPELLANT
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`Law Office of Stephen H. Osborne, Ltd.
`Stephen H. Osborne
`323 Court Street
`Reno, Nevada 89501
`Telephone: (775) 789-4944
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`ATTORNEY FOR RESPONDENT
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`Docket 88999 Document 2025-17187
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`I.
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`NRAP 26.1 DISCLOSURE
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`The undersigned counsel of record certifies that the following are person and
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`entities as described in NRAP 26.1(a) and must be disclosed pursuant to that rule.
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`These representations are made so that the Justice of the Court may evaluate any
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`potential conflicts warranting disqualification or recusal.
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`1. Appellant: Mary Valline, a natural person
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`2. Attorney of Record for Appellant: Stephen H. Osborne, Esq.
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`3. Publicly held Companies Associated: None
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`4. Law Firm appearing in the Court(s) below: Law Office of Stephen H.
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`Osborne, Ltd.
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`DATED this 16th day of April, 2025.
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`By: .
`Law Office of Stephen H. Osborne, Ltd.
`Stephen H. Osborne
`Nevada State Bar No. 4721
`323 Court Street
`Reno, Nevada 89501
`Telephone: (775) 789-4944
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`Counsel for Respondent, Mary Valline
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`i
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`TABLE OF CONTENTS
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`I. NRAP 26.1 DISCLOSURE…………………………………..……
`II. STATEMENT OF THE ISSUES…………………………..……...
`III. STATEMENT OF THE CASE……………………………….…...
`IV. STATEMENT OF THE FACTS…………………………………..
`V. SUMMARY OF THE ARGUMENT…………………………...….
`VI. STANDARD OF REVIEW…………………………………………
`VII. ARGUMENT………………………………………………………
`A. The district court properly determined Valline was the prevailing
`party …………………………………………..…………………………..
`B. The district court did not abuse its discretion in awarding
`Valline her attorney fees pursuant to NRS Chapter 18……………
`C. There was no interplay between NRCP 68 and NRS 18.010
`in reference to the district court’s order granting Valline’s
`motion for attorney fees because NRCP 68 was irrelevant
`to the district court’s determination…………………………………..
`D. The district court was within its discretion to determine
`the attorney fees amount it awarded to Valline……………………..
`E. The district court’s decision to use the “lodestar” method
` for calculating the attorney fees award to Valline was
`within its discretion………………………………………………………
`VIII. CONCLUSION…………………………………………………….
`CERTIFICATE OF COMPLIANCE…………………………………...
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`i
`v
`1
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`5
`5
`6
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`6
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`10
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`12
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`15
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`19
`21
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`TABLE OF AUTHORITIES
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`Federal Cases
`Bevard v. Farmers Ins. Exch.,
`127 F.3d 1147 (9th Cir. 1997)……………………....
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`Nevada Cases
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`Bowyer v. Taack,
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`107 Nev. 625, 817 P.2d 1176 (1991)………………...
`Brunzell v. Golden Gate Nat. Bank,
`85 Nev. 345, 455 P.2d 31 (1969)……………………
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`Cormier v. Manke,
`108 Nev. 316, 830 P.2d 1327 (1992)………………..
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`Leavitt v. Siems,
`130 Nev. 503, 330 P.3d 1 (2004)……………………
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`McCrary v. Bianco,
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`122 Nev. 102, 131 P.3d 573 (2006)…………………
`Miller v. Wilfong,
`121 Nev. 619, 119 P.3d 727 (2005)………
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`O’Connell v. Wynn Las Vegas,
`134 Nev. 550, 429 P.3d 664 (Ct.App. 2018)………..
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`Palace Station Hotel & Casino v. Jones,
`115 Nev. 162, 978 P.2d 323 (1999)…………………
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`Parodi v. Budetti,
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`115 Nev. 236, 984 P.2d 172 (1999)…………………
`Semenza v. Caughlin Crafted Homes,
`111 Nev. 1089, 901 P.2d 684 (1995)……………….
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`Shuette v. Beazer Homes Holdings Corp.,
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`121 Nev. 837, 864, 124 P.3d 530, 549 (2005)……...
`Smith v. Crown Financial Service of America,
`111 Nev. 277, 890 P.2d 769 (1995)………………...
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`14
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`7, 12, 13
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` 15, 16, 17, 18, 19
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`6, 7, 8, 9
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`6
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`7
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`5
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`17, 18
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`13, 15
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`9
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`6
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`19
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`10, 11, 12
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`Thomas v. City of N. Las Vegas, 1
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`22 Nev. 82, 127 P.3d 1057 (2006)………………….
`U.S. Design & Const. Corp. v. Int’l Bhd. Of Elec.
`Workers,
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`118 Nev. 458, 464, 50 P.3d 170, 174 (2002)………..
`Valley Elec. Ass’n v. Overfield,
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`121 Nev. 7, 106 P.3d 1198 (2005)..………………....
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`Rules and Statutes
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`1951 Nev.Stat., ch. 54, § 1………………………………….
`1957 Nev.Stats. ch. 91 § 1………………………………….
`1977 Nev.Stats. ch. 401, § 4………………………………..
`NRAP 26.1…………………………………………………
`NRCP 68…………………………………………………...
`NRCP 68(f)………………………………………………...
`NRCP 68(f)(1)…………………………………...………...
`NRS 17.130………………………………………………...
`NRS 18.010………………………………………………...
`NRS 18.010(2)……………………………………………..
`NRS 18.010(2)(a)………………………………………….
`NRS 18.020………………………………………………...
`NRS Chapter 18……………………………………………
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`Other
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`Merriam-Webster.com Legal Dictionary…………………..
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`6
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`9
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`8
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`11
`11
`11
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`5, 7, 12, 13, 14, 15
`8
`14
`3
`3, 5,10, 11, 12
`11
`v, 8, 10, 11, 12
`3
`1, 10
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`14
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`II.
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`STATEMENT OF THE ISSUES
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`A. Whether the district court properly determined that Respondent Mary
`Valline was the prevailing party when a jury verdict was rendered in her
`favor for monetary damages on the sole cause of action.
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`B. Whether the district court was within its discretion to award to
`Respondent Mary Valline, as the prevailing party in the underlying case
`who obtained a verdict in her favor in the amount of $15,367, her
`attorney fees pursuant to NRS 18.010(2)(a).
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`C. Whether the district court was within its discretion in determining the
`amount of fees it awarded to Respondent Mary Valline and the basis on
`which it made that determination.
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`III. STATEMENT OF THE CASE
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`Mary Valline (“Valline”) was stopped at an intersection and was rear-ended
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`by Appellant Mary Stewart (“Stewart”) on May 19, 2019, which caused injuries and
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`damages to Valline. On March 22, 2024, a jury verdict was rendered for $15,367.00
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`in damages for injuries she sustained. On June 21, 2024, a Judgement was entered
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`that included $163,050.00 in attorney fees and $56,533.86 in costs as Valline was
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`the prevailing party.
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`Stewart appeals the district court’s Judgment based upon the district court’s
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`determination that Valline was the prevailing party as it concerns its attorney fees
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`and costs award. In so doing, Stewart challenges the district court’s refusal to
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`consider Stewart’s non-statutory settlement offer to Valline and its analysis of NRS
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`Chapter 18 as the basis for the award, and asserts that the district court abused its
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`discretion by awarding Valline her attorney fees and costs. For the reasons more
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`fully addressed below, Stewart’s appeal is without merit.
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`IV. STATEMENT OF FACTS
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`On May 19, 2019, Stewart caused a rear-end motor vehicle collision with
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`Mary Valline. ROA Vol. I, 1-3. Valline sought recovery for her injuries and the
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`effects of the injuries on her. Id. On March 22, 2024, following a jury trial in this
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`case, a verdict was entered in Plaintiff Mary Valline’s (“Valline”) favor in the
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`amount of $15,367.00. ROA Vol. 1, 214-215. That verdict states:
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`We, the jury in the above-entitled action, find in favor of MARY
`VALLINE and assess the amount of damages as follows: …
`$15,367.00.”
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`Id. (emphasis added). The jury rendered its verdict on the only claim that was made
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`in this case – Valline’s claim against Stewart for negligence – and assessed money
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`damages in Valline’s favor and against Stewart. Id.; ROA Vol I at 1-3.
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`Following the verdict, Valline and Stewart, both claiming to be the prevailing
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`party, filed a competing memoranda of costs, motions to retax costs, and motions
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`for attorney fees and costs. ROA Vol. II at 216-335 (Stewart’s Memorandum of
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`Costs), Vol. II at 336-386 (Valline’s Memorandum of Costs), Vol. II at 387-396
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`(Valline’s Motion to Retax Costs), Vol. II at 397-409 (Valline’s Motion for Attorney
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`fees and Costs), Vol. II at 410-431 (Stewart’s Motion to Retax Costs), and Vol. III
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`at 513-520 (Stewart’s Motion for Attorney Fees and Costs). After the parties
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`completed their respective opposing and supporting responses to the various motions
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`(ROA Vol. II at 446-461, Vol. III at 462-472, Vol. III at 473-477, Vol. III at 478-
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`485, Vol. 488, 496, Vol. III at 499-505, Vol. III at 508-512, Vol. III at 585-599, Vol.
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`III at 600-612), the district court granted Valline’s Motion to Retax Costs and
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`Motion for Attorney Fees and Costs (ROA Vol. III at 534-537 (Order granting
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`Valline’s Motion to Retax Costs) and 538-551 (Order granting Valline’s Motion for
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`Attorney Fees and Costs)), and denied Stewart’s Motion for Attorney Fees (ROA
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`Vol. III at 616-618). The district court awarded Valline her attorney fees and costs
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`pursuant to NRS 18.010, 18.020, and 17.130 based on its determination that she was
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`the prevailing party in the underlying case. ROA Vol. III at 538-551.
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`In response to the district court’s order, Stewart sought leave to file a motion
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`for reconsideration of the district court’s order awarding Valline her attorney fees
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`and costs. ROA Vol. III, 619-636. In her proposed motion for reconsideration,
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`Stewart asserted that Valline was not entitled to recover her attorney fees and costs
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`because, in relevant part, (1) the district court should have considered Stewart’s non-
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`statutory, oral offer of settlement in considering Valline’s motion for attorney fees
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`and costs; (2) it was Stewart, not Valline, who was the prevailing party; and (3) the
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`attorney fees and costs awarded to Valline were not proportional to the judgment.
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`ROA Vol. III, 625-636. In opposing Stewart’s motion for leave to seek
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`reconsideration, Valline asserted that Stewart’s motion did not qualify for
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`reconsideration because: (1) Stewart did not raise any new issues of fact or law; (2)
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`Stewart misrepresented and misstated the authority on which she relied in
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`challenging the district court’s attorney fees and cost award to Valline; (3) Stewart
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`was not the prevailing party in the case before the district court; and (4) Stewart
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`should have made her challenge to the legal basis for the amount the district court
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`awarded in opposing Valline’s motion for attorney fees and costs and not on a
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`request for reconsideration. ROA Vol. III, 637-645.
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`The district court denied Stewart’s motion for leave to seek reconsideration of
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`its order awarding Valline her attorney fees and costs. ROA Vol. III at 655-664. In
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`so doing, the district court first noted that Stewart raised several points that she did
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`not include in opposing Valline’s motion for attorney fees, costs, and post-judgment
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`interest, but that it would nevertheless address them. Id. The district court went on
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`to explain the fallacies in Stewart’s analyses regarding Valline’s offer of judgment
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`and Stewart’s inadmissible, non-statutory settlement offer both generally and as they
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`related to Valline being the prevailing party in the case before it. Id. Finally, the
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`district court defended its determination on the amount it awarded to Valline for
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`attorney fees under the “lodestar” method pursuant to the on-point authority it cited.
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`Id.
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`On June 21, 2024, the district court entered its judgment in Valline’s favor in
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`the total amount of $234,950.86 (representing the jury verdict of $15,367.00,
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`attorney fees in the amount of $163,050.00, and $56,533.86 in costs) and interest
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`forward at the statutory rate. ROA Vol. III, 679-680. Notice of entry of the
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`Judgment was filed on June 24, 2024. ROA Vol. III, 681-686. Stewart has appealed
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`the district court’s May and June 2024 rulings on various post-trial motions, as well
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`as the district court’s June 21, 2024, Judgment, which was inherently based on its
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`post-trial motions rulings. On February 13, 2025, Stewart filed her Opening brief,
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`to which Valline’s Answer Brief responds.
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`V.
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`SUMMARY OF THE ARGUMENT
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`The district court properly determined that Valline, who prevailed on the most
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`significant issues in this litigation by obtaining a jury verdict in her favor on the sole
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`cause of action and receiving a monetary award in the amount of $15,367.00, was
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`the prevailing party in the case before it. On that basis, the district court’s order
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`granting Valline’s motion for attorney fees pursuant to NRS 18.010(a)(2), which
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`permits the district court to award attorney fees to the prevailing party when the
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`prevailing party has not recovered more than $20,000, was well within its discretion.
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`There was no interplay between NRCP 68 and NRS 18.010 for the district court to
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`consider in reference to its order granting Valline’s motion for attorney fees because
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`there was not a qualifying offer of judgment to consider, rendering NRCP 68
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`irrelevant to the district court’s determination. Finally, the district court was within
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`its discretion to determine the amount it awarded in attorney fees to Valline, and to
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`use the “lodestar” method for calculating that amount. Thus, Valline is entitled to
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`an Order affirming the district court’s June 21, 2024, Judgment and the May and
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`June 2024 orders on the various post-trial motions on which it was based.
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`VI. STANDARD OF REVIEW
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`Attorney fees are recoverable when they are allowed by agreement or when
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`authorized by a statute or rule. Miller v. Wilfong, 121 Nev. 619, 623, 119 P.3d 727,
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`730 (2005). This Court generally reviews a district court’s decision awarding
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`attorney fees for a manifest abuse of discretion. Thomas v. City of N. Las Vegas,
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`122 Nev. 82, 90, 127 P.3d 1057, 1063 (2006). An abuse of discretion occurs when
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`no reasonable judge could reach a similar conclusion under the same circumstances.
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`Leavitt v. Siems, 130 Nev. 503, 509, 330 P.3d 1, 5 (2004). In determining whether
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`the district court abused its discretion in awarding attorney fees to an eligible party,
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`this Court will affirm those decisions if they are supported by the evidence in the
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`record. Semenza v. Caughlin Crafted Homes, 111 Nev. 1089, 1095, 901 P.2d 684,
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`687 (1995). However, if an attorney fees issue implicates a question of law, the
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`proper review is de novo. Thomas, supra.
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`VII. ARGUMENT
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`A. The district court properly determined Valline was the prevailing party.
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`Stewart first contends that Valline was not the prevailing party in the case
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`before the district court because the jury’s award to Valline was a small percentage
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`of what she sought to recover and because it was less than Stewart’s “pre-litigation,
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`non-statutory settlement offer” to Valline. According to Stewart, the district court
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`failed to consider Valline’s pre-litigation, non-statutory settlement offer, and that is
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`what she places at issue in reference to the district court’s determination that Valline
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`was the prevailing party. In support of her contention, Stewart cites to Cormier v.
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`Manke, 108 Nev. 316, 317-18, 830 P.2d 1327 (1992) (Nevada Supreme Court’s
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`remand of the district court’s decision, addressing consideration of a non-statutory
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`settlement offer) as applicable to this case because the district court did “precisely
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`the same thing” in this case. Stewart’s analysis of Cormier, supra, in the context of
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`this case, however, is entirely misplaced and misrepresents the district court’s
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`reasoning in determining that Valline was the prevailing party in the underlying case.
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`In its order denying Stewart’s motion for leave to request reconsideration
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`(ROA Vol. III at 655-664), the district court initially addressed Stewart’s contention
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`that consideration of her inadmissible and non-statutory settlement offer is
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`determinative to the prevailing party analysis:
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`“Irrespective of the admissibility of statutory offers of judgment, the
`pre-litigation settlement offer extended by Defendant’s insurer has no
`bearing on the prevailing party analysis.[1] While it is true that the
`Court must decline to award fees and costs where the moving party has
`rejected an NRCP 68 offer of judgment that was superior to the amount
`of recovery, see, e.g., McCrary v. Bianco, 122 Nev. 102, 131 P.3d 573,
`577 (2006) (citing NRCP 68(f)); Bowyer v. Taack, 107 Nev. 625, 817
`P.2d 1176 (1991) (same), no authority requires the Court to refuse to
`award fees and costs where a party declines a non-statutory settlement
`offer. Nor is there any authority suggesting that the rejection of such an
`offer alters the principal consideration of the “prevailing party”
`analysis, which is whether a party “succeeds on any significant issue in
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`1 In her Opening Brief (at page 9), Stewart quotes the district court as saying
`that the “non-statutory offer had ‘no bearing on her prevailing party analysis’”,
`generally citing to the district court’s order denying Stewart’s request for leave to
`file a motion for reconsideration in its entirety. ROA Vol. III at 655-664. There is
`no such quote in the district court’s order. Id. The sentence that precedes this
`footnote is what the district court stated in reference to a pre-litigation settlement
`offer having no bearing on a prevailing party analysis. To that end, and as more
`fully addressed in the quotations from the district court’s order that follow in this
`portion of Valline’s argument, Stewart’s quotation is a blatant misrepresentation of
`what the district court stated in its analysis and reasoning.
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`litigation which achieves some of the benefit it sought in bringing suit,”
`Valley Elec. Ass’n v. Overfield, 121 Nev. 7, 10, 106 P.3d 1198, 1200
`(2005). Here, it is evident that [Valline] prevailed on the most
`significant issues in this litigation by obtaining a jury verdict in her
`favor and receiving a monetary award in the amount of $15,367.00.
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`ROA Vol. III at 358-359 (emphasis added). The district court went on to address
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`Stewart’s challenge pursuant to Cormier, supra, in which the Nevada Supreme Court
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`considered whether a non-statutory offer of judgment affected the offeree’s ability
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`to recover attorney fees.2 In so doing, the district court quoted the language from
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`Cormier, supra, that states that the district court must consider the reasonableness
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`of the rejection of a non-statutory offer and identified the factors that go to the
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`reasonableness consideration, including whether the offeree recovered more than the
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`rejected offer and whether the offeree’s rejection unreasonably delayed the litigation
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`with no hope of greater recovery. ROA Vol. III at 659, quoting Cormier, supra, 108
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`Nev. at 317, 318, 830 P.2d at 1328. The district court then explained:
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`The court in Cormier required the district court to consider the
`reasonableness of the plaintiff’s rejection of the non-statutory offer
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`2 The facts on which the Court undertook that consideration was in the context
`facts that were different than those in this case. First, the parties in Cormier, supra,
`had initially made competing offers of judgment, which is not at issue in this case.
`Moreover, the defendant in Cormier, supra, subsequently made a non-statutory
`settlement offer that was more than his offer of judgment after the settlement master
`of a settlement conference indicated a value of the case that was more than the
`defendant’s offer of judgment (which is also not present in this case). Finally, the
`district court’s order on appeal in Cormier, supra, denied the plaintiff’s NRS
`18.010(2)(a) motion for attorney fees. Cormier, supra, 108 Nev. at 317-319, 830
`P.2d at 1327-1328.
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`where the district court had declined to award any of the plaintiff’s
`requested attorney’s fees. Id. at 317–18, 830 P.2d at 1327–28. Thus,
`given that the plaintiff’s recovery was greater than the non-statutory
`offer, the wholesale rejection of an award of fees was deemed to be
`reversible error. See id. at 318, 830 P.2d at 1328. By contrast, this
`Court’s discretionary determination that the $29,933 pre-litigation
`settlement offer did not impact the reasonableness of Plaintiff’s
`requested fees is not, as Defendant suggests, reversible error under
`Cormier.[] Neither does Cormier affect the “prevailing party” analysis
`or require the district court to foreclose a plaintiff from recovering
`attorney’s fees where the principal amount of the judgment does not
`exceed the non-statutory offer. Cf. Parodi v. Budetti, 115 Nev. 236, 242
`n.2, 984 P.2d 172, 176 n.2 (1999) (“The district court may consider the
`oral offers of settlement in determining whether discretionary fees
`should be awarded under the statute or the amount of fees.”) (emphasis
`added).
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`ROA Vol. III at 659-660 (emphasis added). In the footnote it included in that
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`reasoning, the district court aptly addressed its consideration of the Cormier, supra,
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`reasonableness factor, stating:
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`The Court is, and was, satisfied that the rejection of the pre-
`litigation offer of settlement was reasonable by reference to the
`factors set forth in Cormier. It is certainly not the case that
`Plaintiff’s recovery was hopeless when Defendant admitted liability
`and a veritable “battle of the experts” occurred at trial, during
`which experienced medical professionals offered conflicting, but
`nonetheless valid, opinions regarding the cause and extent of
`Plaintiff’s injuries. These considerations were implicit in the
`Court’s evaluation of the Brunzell factors in its Order, wherein the
`Court commented on the complexity of the issues of medical causation
`in this case and made note of the breadth of the work performed by Mr.
`Osborne in preparation for bringing forth his client’s best case at trial.
`See Order, at 7:1-26. The Court did not commit reversible error when
`it declined to offset the fee award by reference to the pre-litigation
`settlement offer. See U.S. Design & Const. Corp. v. Int'l Bhd. Of Elec.
`Workers, 118 Nev. 458, 464, 50 P.3d 170, 174 (2002) (upholding award
`of fees to the prevailing party where the district court implicitly
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`considered the reasonableness of the plaintiff’s conduct throughout the
`course of the litigation and the rejection of non-statutory offer made by
`the defendant).
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`ROA Vol. III at 660, fn. 2 (emphasis added). Thus, notwithstanding that there is no
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`authority that requires consideration of a non-statutory settlement offer in a district
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`court’s prevailing party determination, Stewart’s conclusory assertion regarding the
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`pre-litigation non-statutory settlement offer having no bearing on the district court’s
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`decision is entirely belied by the district court’s decision itself wherein the Court
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`clearly considered the reasonableness of the rejection of the of the pre-litigation
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`offer. As a result, the district court properly determined that Valline was the
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`prevailing party pursuant to NRS 18.010 in awarding Valline her costs and attorney
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`fees.
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`B.
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`The district court did not abuse its discretion in awarding Valline her
`attorney fees pursuant to NRS Chapter 18.
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`Stewart contends that the district court abused its discretion by relying on NRS
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`18.010(2)(a) to award Valline her attorney fees because, pursuant to Smith v. Crown
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`Financial Service of America, 111 Nev. 277, 890 P.2d 769 (1995), that statute was
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`intended to apply only to plaintiffs who sought relatively small recoveries, such as
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`recoveries of less than $20,000.00. Stewart asserts that Valline did not seek a small
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`recovery in this case, and that her rejection of Stewart’s non-statutory settlement
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`offer of $29,933.00 precluded the district court from relying on NRS 18.010(2) in
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`awarding Valine her attorney fees. Stewart’s representation of Smith, supra,
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`however, is incomplete and misleading.
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`Indeed, the early versions NRS 18.010 permitted the district court to award
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`attorney fees to the prevailing party where the plaintiff did not seek recovery in
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`excess of a certain amount. Smith, supra, 111 Nev. at 281, 890 P.2d at 772. Those
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`amounts were $1,000 in the 1951 version of the statute and $3,000 in the 1957
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`amended version. Id., citing 1951 Nev.Stat., ch. 54, § 1 at 59 and 1957 Nev.Stats.
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`ch. 91 § 1 at 129. However, in 1977, the legislature amended NRS 18.010 to shift
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`the focus from the amount the prevailing plaintiff sought to the amount the
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`prevailing plaintiff recovered. Smith, supra, 111 Nev. at 282, 890 P.2d at 772. With
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`that amendment, NRS 18.010(2) permitted an award of attorney fees when the
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`prevailing plaintiff did not recover more than $10,000. Id., citing 1977 Nev.Stats.
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`ch. 401, § 4 at 774.
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`“Evidently, the legislature considered the amount actually recovered
`to be a better measure of the size of a civil suit than the amount
`sought.”
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`Smith, supra, 111 Nev. at 282, 890 P.2d at 772 (emphasis added).
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`The district court’s attorney fee award in this case is governed by the current
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`version of NRS 18.010(2)(a), which states: “…the court may make an allowance of
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`attorney’s fees to a prevailing party: (a) When the prevailing party has not
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`recovered more than $20,000.” (emphasis added). Because the jury awarded
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`$15,367 to Valline in the underlying case, that is the measure of the size of the case
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`that was before the district court for purposes of NRS 18.010(2)(a). Smith, supra,
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`111 Nev. at 282, 890 P.2d at 772. Thus, because the district court’s decision to
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`award Valline her attorney fees was made well within the guiding legal principles
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`and the legislative considerations as they concern the contemporary version of NRS
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`18.010(2)(a), it did not abuse its discretion in awarding attorney fees to Valline, the
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`prevailing party in the underlying case.
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`C. There was no interplay between NRCP 68 and NRS 18.010 in reference
`to the district court’s order granting Valline’s motion for attorney fees
`because NRCP 68 was irrelevant to the district court’s determination.
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`Stewart also challenges the district court’s attorney fee award to Valline
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`because it failed to address the interplay between NRCP 68 and NRS 18.010 in its
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`Order granting Valline’s motion for attorney fees. ROA Vol. III at 538-551. In so
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`doing, Stewart repeats the argument she made in her proposed motion for leave to
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`file a motion for reconsideration (ROA Vol. III at 625-636), which the Court fully
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`addressed in its Order denying that motion (ROA Vol. III at 655-664). Indeed,
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`Stewart never raised any argument regarding NRCP 68 and NRS 18.010 in its 1½
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`page opposition to Valline’s motion for attorney fees and costs (ROA Vol. III at 463-
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`464). Be that as it may, it is an assertion that is entirely without merit.
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`Stewart cites to Bowyer v. Taack, 107 Nev. 625, 817 P.2d 1176 (1991) as
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`precluding this Court’s May 15, 2024, order awarding Valline her attorney fees and
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`costs based upon Valline (the plaintiff) having made an offer of judgment in this case
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`and not obtaining a judgment that was better than her offer of judgment. As just
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`noted, this is the same argument that Stewart made in her Motion to leave to file a
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`motion for reconsideration (ROA Vol. III at 625-636). Bowyer, supra, however, did
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`not concern an offer of judgment that the plaintiff made that was more than the
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`judgment. By Stewart’s own citation to Bowyer, supra, and a review of the case
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`itself, the offer of judgment analysis was based upon the plaintiff not obtaining
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`judgment that was better than the defendant’s offer of judgment. See Opening Brief
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`at 12; see also, ROA Vol. III at 627: 1-3 (Stewart’s citation to Bowyer, supra and
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`Palace Station Hotel & Casino v. Jones, 115 Nev. 162, 978 P.2d 323 (1999) as
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`stating “…a party who recovers less than a defendant’s offer of judgment is not
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`entitled to recover attorney’s fees or costs as a prevailing party”). Indeed, the district
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`court similarly and fully addressed Stewart’s NRCP 68 argument in its Order
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`denying Stewart’s motion for leave to file a motion for reconsideration, as follows:
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`First, Defendant argues that the Court “erroneously” stated in its Order
`that “Defendant does not assert that there was a NRCP 68 offer of
`judgement in this case, and indeed, no such offer was made.” (Prop.
`Mot., 2:13-15) [ROA Vol. III at 626] (quoting Order, 2:24-25) [ROA
`Vol. III at 539]. Defendant notes that “Plaintiff did, in fact, make a
`NRCP Rule 68 Offer of Judgment to Defendant in the amount of
`$500,000 on December 13, 2022,” and argues that Plaintiff is precluded
`from obtaining fees under NRCP 68 because the jury’s damages award
`was lower than the amount offered by Plaintiff. (Id. at 2:15- 27; 3:18-
`4:6) [ROA Vol. III at 626, 627-628]. Defendant misconstrues the
`relevance of an NRCP 68 offer of judgment. The Court noted the lack
`of NRCP 68 offer of judgment when it rejected Defendant citation to
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`Bevard v. Farmers Ins. Exch., 127 F.3d 1147 (9th Cir. 1997), which
`was cited in support Defendant’s claim that “a party who is awarded
`less, after trial, than the amount for which the insurer offered to settle
`claims was not entitled to attorney’s fees.” See Order, 2:16-27 [ROA
`Vol. III at 539]. At issue in Bevard was an NRCP 68 offer of judgment,
`not a non-statutory settlement offer. Moreover, the court in Bevard
`specifically referenced the penalty provision of former NRCP 68,
`which at the time stated that “[i]f the judgment finally obtained by the
`offeree is not more favorable than the offer, the offeree shall not recover
`costs, nor attorneys’ fees. . . .” Bevard, 127 F.3d 1147, 1148 (9th Cir.
`1997) (emphasis added). The current penalty provision in NRCP
`68(f)(1) similarly states that “[i]f the offeree rejects an offer and fails
`to obtain a more favorable judgment: . . . the offeree cannot recover any
`costs, expenses, or attorney fees and may not recover interest for the
`period after the service of the offer and before the judgment.” There is
`no genuine dispute in this case that Plaintiff was not an “offeree” of
`an NRCP 68 offer of judgment made by Defendant.[] Thus, Plaintiff’s
`NRCP 68 offer of judgment bears no relevance to the penalty provision
`of NRCP 68.
`
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`ROA Vol. III at 657-658 (emphasis added). The district court also noted Stewart’s
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`strained interpretation of NRCP 68 in footnote 1 of its order:
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`Defendant suggests that “[u]nder NRCP 68, if an offeree makes and
`betters its offer of judgment at trial, the offeree is entitled to recover its
`fees and costs. If the offeree does not better its offer of judgment, the
`offeree is not entitled to recover its fees and costs.” (Reply, 2:28-3:2
`[ROA Vol. III at 647-648]). Defendant’s strained interpretation of
`NRCP 68 is belied by the universally accepted definition of “offeree”,
`which is “one to whom an offer is made.” “Offeree.” Merriam-
`Webster.com
`Legal
`Dictionary,
`Merriam-Webster,
`https://www.merriam-webster.com/legal/offeree. Thus, in order for the
`penalty provision of NRCP 68(f)(1) to apply, the person to whom an
`offer is made (the “offeree”) must have declined the NRCP 68 offer and
`failed to obtain a more favorable judgment. Plaintiff is not an “offeree,”
`making NRCP 68, and the cases cited by Defendant which rely on this
`rule, inapplicable.
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`ROA Vol. III at 658, fn. 1. Thus, because Stewart did not make an offer of judgment
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`in this case that would render Valline an “offeree” for purposes of NRCP 68, neither
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`Bowyer, supra, nor Palace Station, supra, are applicable, and NRCP 68 has no
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`bearing on the district court’s order awarding Valline her attorney fees.
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`D. The district court was within its discretion to determine the attorney fees
`amount it awarded to Valline.
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`Stewart goes on to challenge the amount of attorney fees that the district court
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`awarded to Valline as not proportional to the jury’s award. According to Stewart,
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`the attorney fee award was not rationally designed to calculate a reasonable amount
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`in accordance with the factors stated in Brunzell v. Golden Gate Nat. Bank, 85 Nev.
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`345, 455 P.2d 31 (1969), and especially the fourth Brunzell factor, because the case
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`was not a complex case, Valline did not immediately seek medical treatment, and
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`the jury award to Valline was much less than Stewart’s non-statutory settlement
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`offer. Stewart also concludes her argumen