Dyrhauge v. Black

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HELGA DYRHAUGE, INDIVIDUALLY, Appellant, v. ROBERT RANDOLPH BLACK, JR., AN INDIVIDUAL, Respondent.

No. 87196

Supreme Court of Nevada

November 14, 2024

UNPUBLISHED OPINION

ORDER AFFIRMING IN PART, REVERSING IN PART AND REMANDING

Appeal from an amended judgment upon jury verdict awarding fees and costs in a tort case. Eighth Judicial District Court, Clark County; Eric Johnson, Judge.

Appellant Helga Dyrhauge sued respondent Robert Randolph Black, Jr. after an automobile accident. Dyrhauge rejected Black's NRCP 68 offer of judgment, and after a jury trial, failed to obtain a more favorable verdict. Black later moved for attorney fees and costs, which the district court granted in two separate orders. The district court later entered an amended judgment upon jury verdict awarding Black $176,970.73 in attorney fees and costs. Dyrhauge now appeals.

Dyrhauge argues the district court improperly awarded Black attorney fees under NRCP 68, despite finding that Dyrhauge's rejection of Black's offer was not grossly unreasonable or made in bad faith. Reviewing for an abuse of discretion we disagree. See Las Vegas Metro. Police Dep't v Blackjack Bonding, Inc., 131 Nev. 80, 89, 343 P.3d 608 614 (2015) ("We review a district court's decision regarding an award of attorney fees . . . for an abuse of discretion"). When an offeree rejects a settlement offer under NRCP 68 "and fails to obtain a more favorable judgment[,] the offeree must pay the offeror's post-offer costs and expenses, . . . applicable interest on the judgment from the time of the offer to the time of entry of the judgment, and reasonable attorney fees . . . actually incurred from the time of the offer." NRCP 68(f)(1)(B). In determining the attorney fees to award, the district court must weigh four factors:

(1) whether the plaintiffs claim was brought in good faith; (2) whether the defendants' offer of judgment was reasonable and in good faith in both its timing and amount; (3) whether the plaintiffs decision to reject the offer and proceed to trial was grossly unreasonable or in bad faith; and (4) whether the fees sought by the offeror are reasonable and justified in amount.

Beattie v. Thomas, 99 Nev. 579, 588-89, 668 P.2d 268, 274 (1983).

The parties do not dispute the first or fourth Beattie factors. As to the second factor, Black's offer of judgment of $150,000 was served approximately two years into the proceedings, at which point sufficient discovery had taken place for Dyrhauge to know Black's theory of the case and the material evidence supporting Black's theory. At that point, both parties' depositions had occurred; Black had access to Dyrhauge's medical records; and Dyrhauge had access to Black's expert reports, which rebutted Dyrhauge's causation claims and damages. Given Dyrhauge's conflicting statements about when she experienced pain after the accident, her continued work as a stage performer for six months after the accident before experiencing "suddenly worse" pain, Black's expert witness' testimony rebutting causation, and Black's expert witness testimony about the mild impact Dyrhauge would have suffered in the accident, we conclude that substantial evidence supports the district court's finding that Black's offer was reasonable as to the timing and amount.

As to the third factor, Dyrhauge argues that factor weighed in her favor. To the extent that Dyrhauge argues that the district court used an improper standard to analyze the third factor, we disagree. While the district court observed that Dyrhauge's decision to reject the offer was arguably not grossly unreasonable considering the medical costs incurred, the court ultimately found that decision was unreasonable given the weakness of...