LePome v. Berkson

216 P.3d 239, 125 Nev. 550, 125 Nev. Adv. Rep. 42, 2009 Nev. LEXIS 65
CourtNevada Supreme Court
DecidedSeptember 24, 2009
DocketNo. 51891
StatusPublished
Cited by31 cases

This text of 216 P.3d 239 (LePome v. Berkson) is published on Counsel Stack Legal Research, covering Nevada Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
LePome v. Berkson, 216 P.3d 239, 125 Nev. 550, 125 Nev. Adv. Rep. 42, 2009 Nev. LEXIS 65 (Neb. 2009).

Opinion

[552]*552OPINION

By the Court,

Pickering, J.:

This appeal presents three narrow but previously undecided issues concerning offer of judgment practice under NRCP 68 and NRS 17.115. Reversing, we hold that (1) a judgment obtained on or after appeal can qualify as a “more favorable judgment” for purposes of the fee-shifting provisions of NRCP 68 and NRS 17.115, (2) appellate fees are recoverable, and (3) an unrepresented party who serves an offer of judgment may recover fees later paid to a lawyer hired to prosecute or defend the case.

FACTS AND PROCEDURAL BACKGROUND

The underlying dispute involves a contest over the distribution of Rose Miller’s estate. Shortly before her death, Miller amended her estate plan to name appellant/cross-respondent Barbara LePome as her main beneficiary. Before this amendment, respondents/cross-appellants Marilyn Berkson and Gertrude Malacky had been Miller’s primary beneficiaries.

Alleging that LePome had exercised undue influence, Berkson and Malacky sued to invalidate Miller’s estate plan revision. Proceeding without a lawyer, LePome made separate $12,500 offers of judgment to each of them. When her offers of judgment were rejected, LePome turned the defense of the suit over to counsel.

The jury favored Berkson and Malacky with a unanimous verdict. On appeal, however, this court reversed and ruled that because substantial evidence did not support the verdict, LePome deserved judgment as a matter of law. As a result, Berkson and Malacky ultimately failed to receive more favorable judgments than LePome had offered.

After the remittitur issued on our judgment of reversal, LePome moved the district court for attorney fees and costs pursuant to NRCP 68 and NRS 17.115. The district court initially determined that LePome’s offers of judgment entitled her to $28,730.25 in costs and $100,000 in attorney fees. Upon reconsideration, the district court reversed its decision and held as a matter of law that the offer of judgment rules do not apply to judgments won by appellate reversal. In the district court’s view, the Nevada Supreme Court settlement conference program is the appropriate mechanism for facilitating settlements on appeal, see NRAP 16, not the fee-shifting offer of judgment rules.

DISCUSSION

Although the award of attorney fees is generally entrusted to the sound discretion of the district court, Bergmann v. Boyce, 109 Nev. [553]*553670, 674, 856 P.2d 560, 563 (1993), when a party’s eligibility for a fee award is a matter of statutory interpretation, as is the case here, a question of law is presented, which we review de novo. See, e.g., Barney v. Mt. Rose Heating & Air, 124 Nev. 821, 825, 192 P.3d 730, 733 (2008).

Berkson and Malacky first argue that a judgment rendered as the result of appellate reversal cannot serve as the predicate for an award of attorney fees and costs under Nevada’s offer of judgment rules. In their view, the district court and appellate results are separate. Since the judgment they originally obtained in the district court was more favorable than the $12,500 judgments LePome had offered, they argue that the fee-shifting provisions should not apply. Thus, despite our reversal and despite the judgment in favor of LePome that resulted from the prior appeal, they urge us to focus solely on the initial district court result.

Berkson and Malacky attempt to support their argument with the language of NRCP 68 and NRS 17.115. Neither the rule nor the statute uses the word “final” in referring to “judgment.” Rather, under NRCP 68(f), fee-shifting penalties are assessed against an offeree who “rejects an offer and fails to obtain a more favorable judgment.” The language of NRS 17.115 is substantially similar. See NRS 17.115(4).

We conclude that the word “judgment” in this context connotes a final judgment. The trial and appellate stages are naturally related, and if an appeal is taken, the final outcome may change depending on the outcome on appeal. When this court reverses a judgment on a jury verdict for insufficient evidence and declares the appellant entitled to judgment as a matter of law, the reversal and remittitur comprise the judgment by which the parties and the district court are thereafter bound. See NRS 17.160 (making reference to the “judgment of appellate court” in defining the district court’s docket); NRAP 36(a) (noting that this court’s opinion is its judgment). Absent some language in NRCP 68 or NRS 17.115 that signifies a different interpretation of “judgment,” we conclude that the policy of promoting settlement does not end in district court but continues until the case is resolved.

Although the procedural inverse of this case, Tipton v. Heeren, 109 Nev. 920, 924-25, 859 P.2d 465, 467 (1993), supports our conclusion. In Tipton, we held that, “[i]n view of our decision reversing the district court’s judgment, attorney’s fees are not available pursuant to NRCP 68 and NRS 17.115 because on remand Tipton will obtain a judgment more favorable than Heerens’ pre-trial settlement offer.” Id. at 925, 859 P.2d at 467. The appellate reversal in Tipton resulted in the offeree obtaining a more favorable judgment [554]*554than had been offered, and this defeated an award of attorney fees and costs. Id. In contrast, the appellate reversal on the prior appeal in this case produced a less favorable judgment for the offerees, resulting in a judgment that qualified the offeror for an award of attorney fees and costs. Despite being procedurally opposite, the basic principle of Tipton applies: The judgment looked to in determining whether the judgment obtained is more or less favorable than that which was offered is the final judgment in the case, which may or may not be the initial judgment entered by the district court. See Uniroyal Goodrich Tire v. Mercer, 111 Nev. 318, 322, 890 P.2d 785, 788 (1995) (“When there is a pretrial offer of judgment that the offeree refuses and the final judgment results in an outcome less favorable to the offeree, NRCP 68 and NRS 17.115

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Bluebook (online)
216 P.3d 239, 125 Nev. 550, 125 Nev. Adv. Rep. 42, 2009 Nev. LEXIS 65, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lepome-v-berkson-nev-2009.