Lee v. Patin

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TON VINH LEE, AN INDIVIDUAL, Appellant/Cross-Respondent, v. INGRID PATIN, AN INDIVIDUAL, Respondent/Cross-Appellant, and PATIN LAW GROUP, PLLC, A NEVADA PROFESSIONAL, PLLC, Respondent.

No. 83213

Supreme Court of Nevada

January 22, 2024

UNPUBLISHED OPINION

Gordon Rees Scully Mansukhani LLP/Las Vegas

Resnick & Louis, P.C./Las Vegas

Claggett & Sykes Law Firm

Christian Morris Trial Attorneys

Doyle Law Office, PLLC

ORDER OF AFFIRMANCE

Cadish, C.J.

This is an appeal from a district court order granting in part and denying in part a motion for attorney fees and costs. Eighth Judicial District Court, Clark County; Gloria Sturman, Judge.

This case began when appellant, dentist Dr. Ton Vinh Lee, sued respondents, attorney Ingrid Patin and her law firm Patin Law Group, PLLC (collectively "Patin"), for defamation per se. Motion practice ensued. Relevant here, Patin made a special motion to dismiss under the anti-SLAPP statute. The district court denied the anti-SLAPP motion, and Patin appealed. Patin Law Group obtained appellate counsel, Micah Echols, for the appeal. We affirmed the district court's denial of the anti-SLAPP motion to dismiss. In 2017, during the pendency of that appeal, Ingrid Patin and Patin Law Group each conveyed $1,000 offers of judgment to Lee under NRCP 68. Lee allowed the offers to expire without accepting them.

Later, the district court granted summary judgment in Patin's favor. Patin then sought costs and attorney fees, citing NRCP 68. The district court ultimately awarded costs and fees for Ingrid Patin and Patin Law Group's trial counsel, Christian Morris and Kerry Doyle, but denied costs and fees for Patin Law Group's appellate counsel, Micah Echols. In denying Echols's fees, the district court relied on the unsuccessful outcome of the anti-SLAPP appeal, despite finding that the remaining Brunzell factors favored an award. Both parties appeal; Lee challenges the award of costs and attorney fees under NRCP 68 and the Beattie factors, while Patin Law Group challenges the denial of attorney fees for Echols's work under the Brunzell factors.^[1]

Standard of review

We review awards of attorney fees and costs for an abuse of discretion. Gunderson v. D.R. Morton, Inc., 130 Nev. 67, 80, 319 P.3d 606, 615 (2014); Logan v. Abe, 131 Nev. 260, 266, 267, 350 P.3d 1139, 1143, 1144 (2015). An abuse of discretion exists where the district court's decision is "arbitrary or capricious or if it exceeds the bounds of law or reason." In re Eric A.L., 123 Nev. 26, 33, 153 P.3d 32, 36-37 (2007). Nevertheless, we will review the district court's application of the law governing those awards de novo. See Logan, 131 Nev. at 264, 350 P.3d at 1141.

The district court did not err in awarding fees and, costs under NRCP 68 for Morris and Doyle

Lee maintains that the offers of judgment-totaling $2,000- were effectively "in the negative" or invalid once his "well over $10,000 in attorney fees"-incurred by the time Patin conveyed these offers-was factored into the value of the offers. Based on this interpretation of the offers, Lee argues that he actually beat the $0 judgment obtained upon summary judgment and that Patin is therefore not entitled to fees or costs under NRCP 68(g). We disagree.

Generally, Rule 68 allows the offeror of the offer of judgment to seek a penalty of attorney fees and costs from the offeree if the offeree rejected the offer and failed to obtain a better result. 12 Charles Alan Wright & Arthur R. Miller, Federal Practice & Procedure § 3001 (3d ed. 2023). The dispute here centers on this comparison: whether "the offeree failed to obtain a more favorable judgment'' as compared to the offer. NRCP 68(g). Where an offer precludes a separate award of costs, fees, and interest, the current version of NRCP 68 directs courts to factor in pre-offer costs, fees, and interest to determine whether the offeree beat an offer. See NRCP 68(g) (2019). This comparison between an inclusive offer and the judgment differed under the prior version of NRCP 68, which directed courts to factor in only pre-offer costs. NRCP 68(g) (1998). That prior version of NRCP 68 applies to the 2017 offers of judgment here. See In re Creating a Comm. to Update & Revise the Nev. Rules of Civil Procedure, ADKT 0522 (Order Amending the Rules of Civil Procedure, the Rules of Appellate Procedure, and the Nevada Electronic Filing and Conversion Rules, December 31. 2018). But Lee has failed to cite or evidence any pre-offer costs incurred. He references only his pre-offer attorney fees. Therefore, Lee's negative- or invalid-offer theory falls short for failure to evidence those costs.

Lee's argument fails even if the court factored in attorney fees as permitted under the current version of NRCP 68. Courts applying this 2019 Rule import only those attorney fees that the offeree would be entitled to at the end of litigation, i.e., those authorized by "law or contract,'' into the comparison. See NRCP 68(g) (2019) (providing that the court would only factor in those attorney fees "permitted by law or contract" when comparing inclusive offers to the amount of the judgment); see also U.S. Design & Const. Corp. v. Int'l Bhd. of Elec. Workers, 118 Nev. 458, 462, 50 P.3d 170, 173 (2002) (providing generally that litigants in Nevada can only obtain those attorney fees authorized by "statute, rule, or contract"). Otherwise, the court is not comparing "apples to apples" as required in evaluating inclusive offers against the judgment obtained. See In the Matter of the Repeal of Nevada Rule of Civil Procedure 68, ADKT No. 0151 (Committee Notes to Proposed Rule, Mar. 25, 1998) (stating that the prior version of NRCP 68 permitted unfair comparison of "apples and oranges" when evaluating inclusive offers against judgments obtained). Lee points to no underlying contract or statute supporting his argument that his fees should have been considered, and even conceded at oral argument that the anti-SLAPP statutes did not authorize an attorney fee award here.

Accordingly, we conclude that the district court properly applied NRCP 68's penalty provision. The facts here indicate that Lee could have accepted the offers, ended litigation, and left with an extra $2,000. He chose to forego that option at the risk of obtaining a less favorable outcome. Because Lee has failed to evidence his costs or provide legal argument or support for his attorney fees, we have no basis to conclude that his choice played out in his favor. Thus, he did not obtain a more favorable judgment under NRCP 68.^[2]

The district court did not err in applying the Beattie factors for Morris and, Doyle

Lee argues that the district court committed reversible error in applying the Beattie factors. He specifically challenges the district court's conclusion that the offers of judgment were reasonable and made in good faith with respect to their timing and amount, pointing to (1) the district court's failure to make a specific finding that the amount of the offers were made in good faith, (2) his negative-offer theory, (3) the fact that the offers were made two years into the case after many unsuccessful dispositive motions, and (4) the district court's recognition that the offers "signaled" Patin's intent "to vigorously litigate the legal issues." This final point, according to Lee, reveals that Patin's offers were improperly designed to force him to forego a legitimate claim. Again, we disagree.

In determining whether to exercise its discretion to award attorney fees under NRCP 68, the district court must evaluate the four Beattie factors. Wynn v. Smith, 117 Nev. 6, 13, 16 P.3d 424, 428 (2001). These factors include (1) "whether the plaintiffs claim was brought in good faith"; (2) "whether the defendant's 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). We consistently defer to the district court's "discretion concerning the propriety of granting attorney fees," if "the record clearly reflects that the district court properly considered the Beattie factors.'' See N. Las Vegas Infrastructure Inv. & Constr., LLC v. City of N. Las Vegas, 139 Nev., Adv. Op. 5, 525 P.3d 836, 842 (2023) (quoting Wynn, 117 Nev. at 13, 16 P.3d at 428-29) (internal quotation marks omitted).

The district court's application of Beattie belies Lee's contentions. First, Lee's objection to the district court's failure to make a specific finding that the offers were made in good faith fails, as he does not dispute that the district court addressed each of the Beattie factors. Our caselaw does not require a written finding on each factor where, as here, the record clearly shows that the district court considered each factor. See id. Second, as discussed above, his argument that the offers lacked good faith or reasonableness because they were negative or invalid is both unsupported and unpersuasive. Third, we cannot say that the district court's finding as to the timing of the offers was erroneous, as they were made during the pendency of an appeal that could have ended the case. Finally, while any intent to "vigorously litigate" the case might amount to the alleged bad faith, this observation can also indicate that Patin felt strongly about their case and were willing to pay $2,000 to end litigation that they intended to vigorously litigate otherwise. Under our deferential review, we thus cannot say that the district court abused its discretion in applying this Beattie factor. We therefore affirm the district...