Harrison v. Ramparts, Inc.

137 Nev., Advance Opinion
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

VIVIA HARRISON, AN INDIVIDUAL, No. 80167-COA
Appellant,
vs.
RAMPARTS, INC., D/B/A LUXOR FILED
HOTEL & CASINO, A NEVADA
DOMESTIC CORPORATION,
Respondent.

Appeal from a post-judgment district court order awarding
attorney fees and costs, and directing that the award be paid from
settlement funds owed by a codefendant, in a personal injury matter.
Eighth Judicial District Court, Clark County; David M. Jones, Judge.
Affirmed in part, reversed in part, and remanded.

Claggett & Sykes Law Firm and Micah S. Echols and Scott E. Lundy, Las
Vegas; Moss Berg Injury Lawyers and Boyd B. Moss III, Las Vegas; H&P
Law, PLLC, and Matthew G. Pfau, Las Vegas,
for Appellant.

Lincoln Gustafson & Cercos and Loren S. Young and Mark B. Bailus, Las
Vegas,
for Respondent.

BEFORE THE COURT OF APPEALS, GIBBONS, C.J., TAO and BULLA,
JJ.

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OPINION

By the Court, BULLA, J.:
This appeal arises from a district court's award of attorney fees
and costs to respondent Ramparts, Inc., dba Luxor Hotel and Casino,
against appellant Vivia Harrison, pursuant to NRCP 68, after Harrison
rejected an offer of judgment and was unsuccessful at trial. The district
court ordered that the award be satisfied from the settlement funds
codefendant Desert Medical Equipment was obligated to pay Harrison
based on their high-low settlement agreement. The court's offset assured
that Luxor would receive its award of attorney fees and costs before
Harrison and her counsel received any of the settlement funds from Desert
Medical.
At issue in this appeal is whether the district court erred in
offsetting Harrison's settlement funds from a third party in favor of first
satisfying Luxor's judgment for attorney fees and costs. We conclude that
it did, and consequently, we reverse and remand as to this portion of the
judgment. Harrison also challenges the fees award, which we affirm.
I.
Harrison was operating a motorized scooter in a deli restaurant
located inside the Luxor Hotel and Casino. In order to make her way
through the restaurant, members of her party moved tables to create a
pathway. While negotiating the path cleared for her, one of the scooter's
back tires rolled over the base of a table, causing it to become unbalanced

1We originally resolved this appeal in an unpublished order affirming
in part, reversing in part, and remanding. Appellant subsequently filed a
motion to publish the order as an opinion. We grant the motion and replace
our earlier order with this opinion. See NRAP 36(0.

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and tip over. Harrison allegedly suffered serious personal injuries as a
result, including a fractured hip and stroke.
Subsequently, Harrison filed a complaint against Ramparts,
Inc. (Luxor) and Desert Medical, the entity that rented her the scooter.
Approximately seven months after Harrison filed her second amended
complaint, Luxor served Harrison with a $1,000 offer of judgment, which
Harrison rejected, and the matter proceeded to trial.
During trial, but before the jury reached its verdict, Harrison
and Desert Medical negotiated a high-low settlement agreement, under
which Desert Medical agreed to pay Harrison $150,000, even if the court
entered judgment in its favor. After a nine-day trial, the jury returned a
defense verdict for both Desert Medical and Luxor, finding that neither was
negligent or otherwise liable for Harrison's injuries. Before the district
court entered judgment in favor of Luxor and Desert Medical, Harrison's
attorneys gave notice to both parties that they had placed an attorney's lien
on the file.
After the district court entered judgment on the verdict, Luxor
moved for attorney fees and costs pursuant to NRS Chapter 18 and NRCP
68, which the court granted in part, reducing the overall expert costs and
attorney fees Luxor requested. Further, the district court offset Luxor's
award of fees and costs from the settlement funds Desert Medical owed
Harrison. The court concluded "that this total final judgment must first be
offset from other settlement funds received by [Harrison] and [Harrison's]
attorney as part of the trial judgment before any distribution and this total
final judgment in favor of Luxor takes priority over any other lien, including
an attorney's lien," citing to John W. Muije, Ltd. v. A North Las Vegas Cab
Co., 106 Nev. 664, 799 P.2d 559 (1990). Harrison filed a motion to

3
reconsider, arguing that the issue of offset was never properly before the
court because Luxor failed to request offset in its motion for attorney fees
and costs, only mentioning the issue in its reply brief, and that neither the
court nor the parties addressed offset at the initial hearing. Therefore,
Harrison argued, she did not have the opportunity to challenge whether
offset was appropriate under the facts and circumstances of this case. The
district court denied Harrison's motion to reconsider.2
Because both Harrison and Luxor were attempting to collect the
settlement funds of $150,000 from Desert Medical, Desert Medical filed a
motion to interplead the funds. The district court granted the motion, which
was unopposed, and Desert Medical deposited the settlement funds with the
court. Ultimately, the district court ordered the interpleaded funds
distributed first to the Luxor to satisfy its judgment, with any remaining
funds to be distributed to Harrison and her attorneys. This appeal followed.
On appeal, Harrison does not challenge the verdict in favor of
Luxor. Rather, Harrison appeals from the order awarding attorney fees and
costs to Luxor, including the priority status given to Luxor to obtain
payment of its fees and costs from the settlement funds interpleaded by
Desert Medical. Specifically, Harrison argues that the district court erred
in offsetting the settlement funds in favor of Luxor and abused its discretion
in awarding attorney fees as well as the amount of fees it awarded.
With respect to offset, Luxor asserts that it was proper under
Muije, and therefore, the district court did not err when it ordered Luxor's
award of fees and costs to be offset from the Desert Medical settlement

2We note that although District Judge Nancy Allf signed the order
denying reconsideration, District Judge David M. Jones heard and orally
ruled on the matter and presided over the underlying proceedings.

4
funds. Luxor further argues that the court did not abuse its discretion in
its attorney fees award.

We first address whether the offset of the settlement funds, in
reliance on Muije, was proper. "The 'legal operation and effect of a
judgment is a question of law subject to de novo review." Barbara Ann
Hollier Tr. v. Shack, 131 Nev. 582, 592, 356 P.3d 1085, 1091 (2015) (internal
citation omitted) (quoting Ormachea v. Ormachea, 67 Nev. 273, 291, 217
P.2d 355, 364 (1950)).
In Muije, the plaintiff prevailed at trial, but the jury award in
plaintiffs favor was less than the defendanes offer of judgment. 106 Nev.
at 665, 799 P.2d at 559-60. Accordingly, the district court awarded the
defendant attorney fees and costs, resulting in each party having a
judgment against the other. Id. The district court determined that it would
offset the amount of plaintiffs judgment from the amount she owed the
defendant in attorney fees and costs, extinguishing plaintiffs recovery. Id.
The plaintiffs attorney appealed, claiming that his attorney lien, which
predated the award of fees and costs, was superior to that of the defendanes
judgment and that the court should not have offset the two. Id.
On appeal, the supreme court concluded that an equitable offset
"is a means by which a debtor may satisfy in whole or in part a judgment or
claim held against him out of a judgment or claim which he has
subsequently acquired against his judgment creditor." Id. at 666-67, 799
P.2d at 560 (internal quotation omitted); see also Pennington v. Campanella,
180 So. 2d 882, 887 (La. Ct. App. 1965) (providing that parties "cannot
offset . . . debts which are not mutually owed and mutually demandable).
Thus, because the parties each had a judgment against the other, the Muije

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court affirmed the equitable offset in favor of the defendant, concluding that
the attorney's lien attached to the net judgment, not the gross amount,
which, after the offset, was zero. Muije, 106 Nev. at 666-67, 799 P.2d at
560-61.
Here, relying on Muije, the district court ordered that Luxor's
judgment for attorney fees and costs "must first be offset from other
settlement funds received by [Harrison] and [Harrison's] attorney" and that
Luxor's judgment "takes priority over any other lien, including an attorney's
lien." But, unlike in Muije, there are not competing judgments between
Harrison and Luxor that are mutually owed and mutually demandable.
Equitable offsets are only applicable where a debtor obtains a subsequent
judgment against one of his or her creditors. Muije, 106 Nev. at 666, 799
P.2d at 560. Although Luxor had a collectable judgment against Harrison,
Harrison did not have a collectable judgment against Luxor. Thus, there
were no mutually owed judgments to offset.
Moreover, the Desert Medical settlement funds were part of a
settlement agreement between Harrison and Desert Medical, not Luxor, and
the district court did not reduce the settlement to judgment in favor of
Harrison. Thus, Luxor was not entitled to make a claim against the
settlement funds to satisfy its judgment before distribution, as the funds
from the high-low settlement were not a judgment subject to offset, but
instead were funds owed pursuant to a contract between the signatories,
Harrison and Desert Medical. Cf. Cunha v. Shapiro, 837 N.Y.S.2d 160, 163
(App. Div. 2007) (collecting cases and noting that "cases are legion wherein
courts have treated high-low agreements as settlements"); see also Power
Co. v. Henry, 130 Nev. 182, 189, 321 P.3d 858, 863 (2014) ("A settlement
agreement is a contract governed by general principles of contract law.").

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Therefore, we decline to extend Muije to include the facts and
circumstances presented here and conclude that the district court erred in
granting an offset where Luxor and Harrison did not have mutually owed
judgments that could be subject to offset. Accordingly, we reverse the
district court's order in part as to the offset.3 As to the Desert Medical
settlement funds, we remand this matter to the district court in order to
release the interpleaded funds to Harrison and her attorneys.4
IIL
Next, we address whether the district court abused its
discretion in awarding Luxor its fees.5 Harrison argues that the district
court abused its discretion in awarding Luxor its attorney fees as well as
the amount it awarded pursuant to NRCP 68, by pointing out

31n doing so, we recognize that there are competing public policy
considerations at issue, such as encouraging settlement versus not
rewarding a party for pursuing a frivolous claim. Nevertheless, we cannot
agree that a settlement agreement is the same as a judgment for the
purposes of offset, even in light of the public policy considerations
enunciated in Muije. This is particularly so in this case, where Luxor was
not a signatory to the settlement agreement.
4We need not reach the issue of whether Harrison's attorneys have
perfected their liens, as this likely will be considered upon distribution.
Further, we recognize that any future contested distribution may well
have to be made through a separately filed interpleader action with all
creditors properly served. However, we believe that the burden to ensure a
fair and ethical distribution of the funds is properly placed on Harrison's
counsel, including the filing of a separate interpleader action if necessary.
See RPC 1.15(d) (providing that "a lawyer shall promptly deliver to the
client or third person any funds or other property that the client or third
person is entitled to receive (emphasis added)).
5We note that Harrison does not challenge Luxor's award of costs.

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inconsistencies between the district court's statements at the hearing and
those contained in its order. Luxor, on the other hand, argues that the
district court considered each of the required Beattie6 factors in making its
determination and therefore did not abuse its discretion in awarding
attorney fees or in determining the amount awarded.
An award of attorney fees is generally reviewed for an abuse of
discretion. Gunderson v. D.R. Horton, Inc., 130 Nev. 67, 80, 319 P.3d 606,
615 (2014). When deciding whether to award attorney fees under NRCP 68,
the district court must weigh four factors in determining whether attorney
fees are warranted. These factors include the following four things:
(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, 99 Nev. at 588-89, 668 P.2d at 274. Although it is preferable,
express factual findings on each factor are not necessary for a court to
properly exercise its discretion; rather, "the district court need only
demonstrate that it considered the required factors, and the award must be
supported by substantial evidence." Logan v. Abe, 131 Nev. 260, 266, 350
P.3d 1139, 1143 (2015). While all of these factors must be considered, not
one is outcome determinative, "and thus, each should be given appropriate
consideration." Frazier v. Drake, 131 Nev. 632, 642, 357 P.3d 365, 372 (Ct.
App. 2015).

6Beattie v. Thomas, 99 Nev. 579, 588-89, 668 P.2d 268, 274 (1983).

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The district court made express findings pursuant to Beattie,
including applying the Brunzell7 factors, and determined that overall the
Beattie factors weighed in favor of awarding attorney fees, although the
district court ultimately reduced the total amount of fees awarded. The
record demonstrates that the final amount of fees the district court awarded
is supported by substantial evidence. Based on this record, we conclude
that the district court did not abuse its discretion in analyzing and
considering the Beattie factors as required, including in determining the
amount of fees to award.8 Therefore, the attorney fees award is affirmed.8
IV.
In conclusion, a party cannot make a claim for attorney fees and
costs—and thus the district court cannot offset—against settlement funds
from a third party that have not been reduced to a judgment. We reaffirm
that for an equitable offset to apply, there must be competing judgments

7Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31,
33 (1969).

8To the extent that Harrison argues the differences between the
district court findings and its order, the order ultimately controls. See Rust
v. Clark Cty. Sch. Dist., 103 Nev. 686, 689, 747 P.2d 1380, 1382 (1987)
(explaining that oral pronouncements from the bench are ineffective and
only a written judgment has legal effect). Accordingly, differences between
oral findings and the written findings do not render the written order
invalid, as only the written order has legal effect. See id. Therefore, because
the order demonstrates that the court considered each factor and its
decision is otherwise supported by substantial evidence, we conclude that
the district court did not abuse its discretion in awarding Luxor its attorney
fees. See Logan, 131 Nev. at 266-67, 350 P.3d at 1143.

8Insofar as the parties raise arguments that are not specifically
addressed herein, we have considered the same and conclude that they
either do not present a basis for relief or need not be reached given the
disposition of this appeal.

9
between the parties that are mutually owed and mutually demandable.
Thus, while we affirm the award for attorney fees, we reverse the district
court's order as to the offset and remand this matter to the district court for
the release of the interpleaded funds.

ittono•°"""---
o

Bulla

I concur:

Tao

10
GIBBONS, C.J., concurring in part and dissenting in part:
This case presents the issue of whether a district court can
accurately and fairly enter a large judgment for attorney fees against a
losing party when the court makes unsupported or incomplete findings as
to the factors identified in Beattie v. Thomas, 99 Nev. 579, 588-89, 668 P.2d
268, 274 (1983). I conclude that the district court's order is not legally
sufficient. Therefore, I would vacate the attorney fees award and remand
for the district court to engage in the correct process and follow the well-
established procedures. Accordingly, the entirety of the district court order
should be vacated because there is not a valid underlying basis to award
attorney fees to respondent. Regardless, I agree with the majority as to the
remaining issues and concur with the portion of the opinion reversing in
part and remanding to correct the offset.
Vivia Harrison was injured in the Luxor Hotel & Casino while
operating a motorized scooter. In February 2016, Harrison filed a complaint
against Ramparts, Inc. (Luxor) and Desert Medical Equipment (Desert
Medical) asserting claims, as relevant here, for negligence. In March 2017,
Luxor served an offer of judgment for $1,000 on Harrison, which was not
accepted, and the case proceeded to trial in December 2018. During trial,
Desert Medical offered Harrison a "high low" settlement offer of $150,000
to $750,000, depending on the ultimate verdict, which was accepted. The
jury returned verdicts in favor of both defendants; therefore, Desert Medical
owed $150,000 under the settlement agreement.
Luxor brought a motion for attorney fees and costs, seeking
$255,558 as the prevailing party under NRCP 68. Luxor requested a total
of $202,398 in attorney fees and $53,160 in costs. The district court granted

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the motion for attorney fees and costs in part and awarded $109,285.28,
apportioning $39,597.28 for costs and $69,688 for attorney fees.1
The district court summarily concluded in the written order
that the $1,000 offer was reasonable. The court, however, did not apply or
misstated the actual factors from Beattie. The court did not address if the
case was brought in good faith; rather, it stated that the facts and
allegations in the complaint were contrary to Harrison's own witnesses'
testimony. The court did not specifically address if the offer was reasonable
and in good faith as to timing and amount, or if it was grossly unreasonable
or in bad faith for Harrison to reject the $1,000 offer. The court did not
balance the Beattie factors but still determined that a partial award of
attorney fees was proper. Further, the court summarily denied Harrison's
motion for reconsideration.
On appeal, Harrison argues that the district court abused its
discretion by incorrectly applying all four factors set forth in Beattie.
Additionally, Harrison argues that the district court misapplied the factors
in Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349, 455 P.2d 31,
33 (1969), and that the amount of the awarded fees was unreasonable. I
agree that the district court failed to correctly apply the first, second, and
third Beattie factors, failed to balance them against each other, and thus
misapplied Beattie. Further, the court failed to make adequate findings as
to all three Beattie factors. Therefore, the district court's judgment as to
attorney fees should be vacated and the case remanded for the district court

'While Luxor requested attorney fees as a prevailing party pursuant
to both NRS 18.010(2)(b) and NRCP 68, the district court made none of the
required findings under NRS 18.010(2)(b) and did not use this statute as
the basis for its decision. The court instead only awarded attorney fees
pursuant to NRCP 68.

2
to analyze all of the factors and make proper findings. Then it must engage
in a balancing of the first three factors against each other, as well as the
fourth factor, to determine if attorney fees should be awarded under the
facts of this case. While the district court did correctly apply the fourth
Beattie factor using Brunzell to determine the reasonable amount of
attorney fees, such fact is not relevant when deciding if the first three
factors of Beattie were satisfied. Therefore, I only address the first three
factors.
Under NRCP 68, a party may recover attorney fees and costs if
the other party rejects an offer of judgment and fails to obtain a more
favorable outcome. In 1983, the Nevada Supreme Court established four
factors in Beattie v. Thomas that must be considered when determining
whether it can award attorney fees under NRCP 68:
(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.
99 Nev. at 588-89, 668 P.2d at 274.
This court considered the application of the Beattie factors in
Frazier v. Drake, 131 Nev. 632, 357 P.3d 365 (Ct. App. 2015), and O'Connell
v. Wynn Las Vegas, LLC, 134 Nev. 550, 429 P.3d 664 (Ct. App. 2018). In
Frazier, we noted that
the first three factors all relate to the parties'
motives in making or rejecting the offer and
continuing the litigation, whereas the fourth factor
relates to the amount of fees requested. . . .
[But] [n]one of these factors are outcome

3
determinative . . . and thus, each should be given
appropriate consideration,
131 Nev. at 642, 357 P.3d at 372 (internal citations omitted). Further, as it
relates to the first three factors, we pointed out that the supreme court has
recognized that, "[i]f the good faith of either party in litigating liability
and/or damage issues is not taken into account, offers would have the effect
of unfairly forcing litigants to forego legitimate claims." Id. at 643, 357 P.3d
at 372 (alteration in original) (quoting Yamaha Motor Co., U.S.A. v. Arnoult,
114 Nev. 233, 252, 955 P.2d 661, 673 (1998)). In addition to noting the
public policy supporting the consideration of all of the Beattie factors, we
recognized in Frazier that "where . . . the district court determines that the
three good-faith Beattie factors weigh in favor of the party that rejected the
offer of judgment, the reasonableness of the fees requested by the offeror
[the fourth Beattie factor] becomes irrelevant, and cannot, by itself, support
a decision to award attorney fees to the offeror." ld. at 644, 357 P.3d at 373.
A district court's application of the Beattie factors is reviewed
for an abuse of discretion. LaForge v. State, Univ. & Cmty. Coll. Sys. of
Nev., 116 Nev. 415, 423, 997 P.2d 130, 136 (2000). "Such an abuse occurs
when the court's evaluation of the Beattie factors is arbitrary or capricious."
Frazier, 131 Nev. at 642, 357 P.3d at 372. "Claims for attorney fees
under. . . NRCP 68 are fact intensive," and "5U the record clearly reflects
that the district court properly considered the Beattie factors, we will defer
to its discretion." Wynn v. Smith, 117 Nev. 6, 13, 16 P.3d 424, 428-29 (2001).
"[T]he district court's failure to make explicit findings is not a per se abuse
of discretion." Id. at 13, 16 P.3d at 428.
I conclude that the district court abused its discretion when
awarding attorney fees under NRCP 68, as the record does not clearly
reflect that the district court properly considered the first three Beattie
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factors. Although the district court enunciated the factors in its order, it
only summarily found that an award of attorney fees and costs was
appropriate pursuant to the factors articulated in Beattie and Brunzell. The
order itself fails to address the actual elements of the first three factors.
Further, despite this being a fact-intensive inquiry, the court made no
findings that the case was brought in bad faith, that the $1,000 offer was
reasonable and in good faith in both timing and amount, or that it was
grossly unreasonable or in bad faith for Harrison to reject the offer. Without
specific findings as to the elements of the first three Beattie factors, it is
impossible on the face of the order to understand how the court could have
balanced all of the factors. The record on appeal should provide support to
show that the district court properly considered and balanced these factors;
here it does not. See Wynn, 117 Nev. at 13, 16 P.3d at 428-29 ("If the record
clearly reflects that the district court properly considered the Beattie
factors, we will defer to its discretion."); cf. Willard v. Berry-Hinckley Indus.,
136 Nev. 467, 471, 469 P.3d 176, 180 (2020) (holding that district courts
must issue explicit and detailed findings for NRCP 60(b)(1)
determinations).
Specifically, as to the first factor, the court focused on evidence
that was provided for the first time in discovery or at trial, not when
Harrison filed suit, which is how good faith under this factor is assessed.
As to the second factor, the court noted that discovery had not been
completed and made no finding that the offer was reasonable and in good
faith as to both timing and amount. As to the third factor, the court found
that Harrison was aware of substantial defects in the case and still rejected
the offer. Yet the court did not conclude that the rejection of a $1,000 offer
was grossly unreasonable or made in bad faith. On the contrary, the court

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recognized at the hearing that $1,000 was not really intended to settle the
case because it would not even cover the cost of filing the case. Thus, the
findings as to the first factor misapplied and misconstrued the rule, the
findings as to the second factor were significantly incomplete and tended to
favor Harrison, and the findings as to the third factor omitted the key
element of gross unreasonableness or bad faith. Finally, the court did not
balance the factors and explain what factor may have been dispositive or
outweighed by any other factors.
My conclusion is further supported by the fact that Desert
Medical offered to settle for $150,000 to $750,000 during trial. Because this
offer was extended during trial, there is an inference that Harrison
presented some credible evidence during trial, at least as to Desert
Medical's negligence, and Luxor's $1,000 offer made more than 20 months
before trial was not reasonable in timing or amount, or was not rejected in
bad faith or otherwise grossly unreasonable.
Here, the district court focused its attention on the fourth
Beattie factor, the reasonableness of the amount of the requested attorney
fees. This factor should not have been addressed until the first three factors
were fully considered and balanced against each other to establish a legal
basis for awarding attorney fees. See Frazier, 131 Nev. at 643, 357 P.3d at
372 ("[T]he fourth Beattie factor. . . does not have any direct connection
with the questions of whether a good-faith attempt at settlement has been
made or whether the offer is an attempt to force a plaintiff to forego
legitimate claims.").
It is important to note that the first three Beattie factors involve
a qualitative analysis, not a quantitative analysis. Each factor mandates
the district court to evaluate and measure something different, so the

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ultimate weight attached to each factor is case-specific. Factor one focuses
on the good faith of the plaintiff at the moment the complaint is filed. In
this case, that was in February 2016. It does not matter under this factor
that the complaint was ultimately found to be nonmeritorious as to Luxor.
See Assurance Co. of Am. v. Nat'l Fire & Marine Ins. Co., No. 2:09—CV-1182,
2012 WL 6626809, *3 (D. Nev. Dec. 19, 2012) ("Plaintiffs, incorrectly in
hindsight, believed they had a good chance of success on the merits and
pursued the claims in good faith."); Max Baer Prod. Ltd. v. Riverwood
Partners, LLC, No. 3:09—CV-00512, 2012 WL 5944767, *3 (D. Nev. Nov. 26,
2012) ("Claims may be unmeritorious and still be brought in good faith.").
Cf. NRS 7.085 (providing that the court shall sanction an attorney that has
brought a case not grounded in fact, not warranted by existing law, or
without a good faith argument for changing the law).
The second factor has multiple components. The defendant has
to act in good faith and must make a reasonable offer, both in its timing and
in amount. Limar acknowledges as much in its answering brief. However,
was it in good faith to make an offer before discovery was completed? Was
it in good faith to offer a token amount? Was Luxor merely attempting to
create the foundation to file a motion for attorney fees years later while not
really trying to settle the case? See Frazier, 131 Nev. at 644, 357 P.3d at
373 (emphasizing the necessity of considering the parties good faith;
otherwise, an offer could merely be an attempt to force a litigant to forgo a
legitimate claim).
The district court did not address these good faith threshold
questions. The court made no finding that the timing was reasonable.
Indeed, the court suggested it might not have been because only "some
discovery was conducted" at that point. Consequently, the district court

7
should have explained why these circumstances satisfied the burden that
was on Luxor to show reasonableness as to timing.
Assuming the court could find the timing reasonable, the court
would then need to evaluate the amount offered and find that it also was
reasonable. However, the court expressed doubt at the February hearing
about the reasonableness of the amount, stating that, from the perspective
of a former trial attorney, 11,000 offers of judgment (were viewed
asl . . . just ludicrous." Therefore, making findings as to all components of
factor two was crucial in light of Luxor's burden to establish good faith and
reasonableness as to timing and amount. This $1,000 offer of judgment
might seem reasonable in hindsight, but an inquiry into good faith and
reasonableness as to timing and amount was still necessary and
conspicuously lacking from the district court's order.2 Indeed, findings were
especially important in this case, since the facts and comments from the
district court as to the second Beattie factor seem to point in the opposite
direction of the result ultimately reached. We should not now consider
unexplained and incomplete fmdings as decisive. See Davis v. Ewalefo, 131

2 In contrast, in Tutor Perini Building Corp. v. Show Canada
Industries US, Inc., No. 74299, 2019 WL 2305717 (Nev. May 29, 2019),
Show Canada made Tutor Perini an offer of judgment for $950,000; the
verdict in favor of Show Canada was for $908,892, plus $601,960 in
prejudgment interest. The supreme court upheld the subsequent award of
attorney fees to Show Canada under NRCP 68 in part due to the finding of
the district court that Tutor Perini engaged in fraudulent activity, and also
because while one factor had deficient findings, the record supported the
overall conclusion as to that factor. Therefore, the dollar amounts and the
unique circumstances of that case justified an affirmance even though the
district court did not make explicit findings as to all of the Beattie factors.

COURT OF APPEALS
OF
NEVADA
8
IO 194711
Nev. 445, 450, 352 P.3d 1139, 1142 (2015) (providing that we do not defer
"to findings so conclusory they may mask legal erroe).
I now turn to the district court's failure to apply the elements
of factor three. While factors one and two require both an objective and a
subjective analysis as to good faith, and factor two additionally looks to
reasonableness, factor three is different. It requires an objective and
subjective analysis of the plaintiffs reaction to the offer during the 10-day
period immediately following the communication of the offer, as the offer
expires at that point.3 The district court must determine whether the
decision to reject the offer and proceed to trial was grossly unreasonable or
in bad faith. Therefore, even if the offer was determined to be reasonable
under the second factor, that is not the standard when considering the third
factor. Luxor had to show it was grossly unreasonable or in bad faith for
Harrison to fail to accept the offer during the 10-day period following
March 23, 2017.
As previously discussed, discovery had not been completed.
Luxor knew Harrison was seeking a large amount in damages. Luxor was
only offering $1,000, and Desert Medical ultimately offered up to $750,000.
The circumstances as they existed on March 23, 2017, must be understood

3 The Nevada Rules of Civil Procedure were amended effective
March 1, 2019. See In re Creating a Comm. to Update & Revise the Nev.
Rules of Civil Procedure, Docket No. ADKT 0522 (Order Amending the
Rules of Civil Procedure, the Rules of Appellate Procedure, and the Nevada
Electronic Filing and Conversion Rules, Dec. 31, 2018) ("[T]his amendment
to the [NRCP] shall be effective prospectively on March 1, 2019, as to all
pending cases and cases initiated after that date."). As is pertinent here,
the claim, offer of judgment, trial, and motion for attorney fees were all
initiated prior to March 1, 2019. Therefore, I use the version of the NRCP
in effect at that time.

9
when evaluating whether Harrison acted in bad faith in rejecting the offer.
Further, the circumstantial setting provides context when judging whether
it was grossly unreasonable to reject the offer. See, e.g., Yamaha, 114 Nev.
at 252, 955 P.2d at 673 (explaining that "offers [should not] have the effect
of unfairly forcing litigants to forego legitimate claims and remanding for
the court to reweigh all four Beattie factors).
Luxor contends that failing to accept the offer was grossly
unreasonable because either the case was brought in bad faith or it had no
merit and Harrison knew as much. In essence, failing to accept any offer,
even prior to the completion of discovery, was grossly unreasonable.
However, the district court never made an oral or written finding or legal
conclusion as to the elements of this factor. The very brief apparent
reference to factor three in the order was that "[Harrison] was aware of the
substantial defects in the case and still rejected Luxor's offer of judgment."
Such a factual determination supports a conclusion that Harrison acted
unreasonably. The supreme court in Beattie, however, has stated that a
plaintiff must have acted in a grossly unreasonable way, or in bad faith—a
much higher level of culpability than unreasonableness. Here, the district
court never made a factual finding or a legal conclusion that it was grossly
unreasonable or in bad faith for Harrison to reject the $1,000 offer in April
2017.
To show Harrison's decision was grossly unreasonable, Luxor
needed to overcome this high hurdle. See Assurance Co. of Am., 2012 WL
6626809, at 3. The amount of damages the plaintiff seeks and the need for
discovery are considerations in deciding whether it is grossly unreasonable
to reject an offer. See Sands Expo & Convention Ctr., Inc. v. Bonvouloir,
No. 67091, 2016 WL 5867493 (Nev. Oct. 6, 2016) ("[The] decision to reject

10
the . . . offer in the face of extensive anticipated damages and on-going
discovery does not appear grossly unreasonable."). In addition, as Harrison
argues, and as stated earlier in this dissent when discussing the Frazier
case, the policy behind offers of judgment is not to coerce plaintiffs into
accepting token or low-ball offers when there is a viable case with
potentially large damages. The district court needed to carefully analyze
and explain why it was nonetheless grossly unreasonable or in bad faith to
reject such an offer at that stage of the litigation. See Frazier, 131 Nev. at
643, 357 P.3d at 373.
Looking at the three factors as a whole, the district court
impliedly found factor one favored Luxor but viewed the situation as it
existed later in the proceedings, not when the complaint was filed, as
required by Beattie. As to factor two, the court stated that discovery had
not been completed and never concluded that the offer was extended in good
faith or that it was reasonable as to timing or amount. As to factor three,
the court failed to determine if the rejection of the $1,000 offer was grossly
unreasonable or in bad faith.
Finally, it was critically important for the district court to make
findings and legal conclusions to explain why a factor may outweigh another
factor or is otherwise given more weight, because no single factor is
determinative. See Yamaha, 114 Nev. at 252 n.16, 955 P.2d at 673 n.16
("The district court is reminded that no one factor under Beattie is
determinative, and that it has broad discretion to grant the request so long
as all appropriate factors are considered." (emphasis added)). Merely
"considerine the factors is not enough, as that is only part of the process.
See State Drywall, Inc. v. Rhodes Design & Dev., 122 Nev. 111, 119 n.18,
127 P.3d 1082, 1088 n.18 (2006) (holding the district court did not properly

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io) 19473
11
consider the Beattie factors where the record did not reflect "what, if any,
analysis was made and recognizing that the record must reflect this
analysis for the decision to be upheld).
Therefore, I conclude that the district court abused its
discretion by failing to properly consider and apply the first, second, and
third Beattie factors, to explain their interplay with each other, which itself
was not supported by any findings, or to then determine and balance factor
four, if the first three factors supported the discretionary award of attorney
fees. A remand to apply the elements of each factor is necessary. Public
policy also supports this conclusion, as litigants should not be coerced into
settling cases because of the fear of large awards of attorney fees, which the
court might determine months or years later, in hindsight, should be
awarded because a token offer was reasonable. Further, cautioning the
district courts to correctly apply Beattie has not been sufficient, as this case
illustrates.4 Allowing a court to impose a large, five-figure judgment
against a party for attorney fees in a summary proceeding, when the court
itself does not fully follow the correct procedure, is incompatible with
justice. Making appropriate findings alleviates any such concern.
Therefore, I concur in part and dissent in part and would vacate
the attorney fees award and remand this case to the district court to make

4 See Schwartz v. Estate of Greenspun, wherein the supreme court
stated in 1994 that it "caution [ed] the trial bench to provide written support
under the Beattie factors for awards of attorney's fees made pursuant to
offers of judgment even where the award is less than the sum requested,"
as "[i] t is difficult at best for this court to review claims of error in the award
of such fees where the courts have failed to memorialize, in succinct terms,
the justification or rationale for the awards." 110 Nev. 1042, 1050, 881 P.2d
638, 643 (1994).
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01, 194711 elltypr•
12
findings as to each Beattie factor and then balance them to determine if a
judgment for attorney fees should be entered.

/ /(i
Gibbons

137 Nev., Advance Opinion
IN THE COURT OF APPEALS OF THE STATE OF NEVADA

VIVIA HARRISON, AN INDIVIDUAL, No. 80167-COA
Appellant,
vs.
RAMPARTS, INC., D/B/A LUXOR FILED
HOTEL & CASINO, A NEVADA
DOMESTIC CORPORATION,
Respondent.

Appeal from a post-judgment district court order awarding
attorney fees and costs, and directing that the award be paid from
settlement funds owed by a codefendant, in a personal injury matter.
Eighth Judicial District Court, Clark County; David M. Jones, Judge.
Affirmed in part, reversed in part, and remanded.

Claggett & Sykes Law Firm and Micah S. Echols and Scott E. Lundy, Las
Vegas; Moss Berg Injury Lawyers and Boyd B. Moss III, Las Vegas; H&P
Law, PLLC, and Matthew G. Pfau, Las Vegas,
for Appellant.

Lincoln Gustafson & Cercos and Loren S. Young and Mark B. Bailus, Las
Vegas,
for Respondent.

BEFORE THE COURT OF APPEALS, GIBBONS, C.J., TAO and BULLA,
JJ.

COURT OF APPEALS
OF
NEVADA
21. 3101g
10) 194713 .4D11.
OPINION

By the Court, BULLA, J.:
This appeal arises from a district court's award of attorney fees
and costs to respondent Ramparts, Inc., dba Luxor Hotel and Casino,
against appellant Vivia Harrison, pursuant to NRCP 68, after Harrison
rejected an offer of judgment and was unsuccessful at trial. The district
court ordered that the award be satisfied from the settlement funds
codefendant Desert Medical Equipment was obligated to pay Harrison
based on their high-low settlement agreement. The court's offset assured
that Luxor would receive its award of attorney fees and costs before
Harrison and her counsel received any of the settlement funds from Desert
Medical.
At issue in this appeal is whether the district court erred in
offsetting Harrison's settlement funds from a third party in favor of first
satisfying Luxor's judgment for attorney fees and costs. We conclude that
it did, and consequently, we reverse and remand as to this portion of the
judgment. Harrison also challenges the fees award, which we affirm.
I.
Harrison was operating a motorized scooter in a deli restaurant
located inside the Luxor Hotel and Casino. In order to make her way
through the restaurant, members of her party moved tables to create a
pathway. While negotiating the path cleared for her, one of the scooter's
back tires rolled over the base of a table, causing it to become unbalanced

1We originally resolved this appeal in an unpublished order affirming
in part, reversing in part, and remanding. Appellant subsequently filed a
motion to publish the order as an opinion. We grant the motion and replace
our earlier order with this opinion. See NRAP 36(0.

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2
Newtork

(0) 1947B .40:.
and tip over. Harrison allegedly suffered serious personal injuries as a
result, including a fractured hip and stroke.
Subsequently, Harrison filed a complaint against Ramparts,
Inc. (Luxor) and Desert Medical, the entity that rented her the scooter.
Approximately seven months after Harrison filed her second amended
complaint, Luxor served Harrison with a $1,000 offer of judgment, which
Harrison rejected, and the matter proceeded to trial.
During trial, but before the jury reached its verdict, Harrison
and Desert Medical negotiated a high-low settlement agreement, under
which Desert Medical agreed to pay Harrison $150,000, even if the court
entered judgment in its favor. After a nine-day trial, the jury returned a
defense verdict for both Desert Medical and Luxor, finding that neither was
negligent or otherwise liable for Harrison's injuries. Before the district
court entered judgment in favor of Luxor and Desert Medical, Harrison's
attorneys gave notice to both parties that they had placed an attorney's lien
on the file.
After the district court entered judgment on the verdict, Luxor
moved for attorney fees and costs pursuant to NRS Chapter 18 and NRCP
68, which the court granted in part, reducing the overall expert costs and
attorney fees Luxor requested. Further, the district court offset Luxor's
award of fees and costs from the settlement funds Desert Medical owed
Harrison. The court concluded "that this total final judgment must first be
offset from other settlement funds received by [Harrison] and [Harrison's]
attorney as part of the trial judgment before any distribution and this total
final judgment in favor of Luxor takes priority over any other lien, including
an attorney's lien," citing to John W. Muije, Ltd. v. A North Las Vegas Cab
Co., 106 Nev. 664, 799 P.2d 559 (1990). Harrison filed a motion to

3
reconsider, arguing that the issue of offset was never properly before the
court because Luxor failed to request offset in its motion for attorney fees
and costs, only mentioning the issue in its reply brief, and that neither the
court nor the parties addressed offset at the initial hearing. Therefore,
Harrison argued, she did not have the opportunity to challenge whether
offset was appropriate under the facts and circumstances of this case. The
district court denied Harrison's motion to reconsider.2
Because both Harrison and Luxor were attempting to collect the
settlement funds of $150,000 from Desert Medical, Desert Medical filed a
motion to interplead the funds. The district court granted the motion, which
was unopposed, and Desert Medical deposited the settlement funds with the
court. Ultimately, the district court ordered the interpleaded funds
distributed first to the Luxor to satisfy its judgment, with any remaining
funds to be distributed to Harrison and her attorneys. This appeal followed.
On appeal, Harrison does not challenge the verdict in favor of
Luxor. Rather, Harrison appeals from the order awarding attorney fees and
costs to Luxor, including the priority status given to Luxor to obtain
payment of its fees and costs from the settlement funds interpleaded by
Desert Medical. Specifically, Harrison argues that the district court erred
in offsetting the settlement funds in favor of Luxor and abused its discretion
in awarding attorney fees as well as the amount of fees it awarded.
With respect to offset, Luxor asserts that it was proper under
Muije, and therefore, the district court did not err when it ordered Luxor's
award of fees and costs to be offset from the Desert Medical settlement

2We note that although District Judge Nancy Allf signed the order
denying reconsideration, District Judge David M. Jones heard and orally
ruled on the matter and presided over the underlying proceedings.

4
funds. Luxor further argues that the court did not abuse its discretion in
its attorney fees award.

We first address whether the offset of the settlement funds, in
reliance on Muije, was proper. "The 'legal operation and effect of a
judgment is a question of law subject to de novo review." Barbara Ann
Hollier Tr. v. Shack, 131 Nev. 582, 592, 356 P.3d 1085, 1091 (2015) (internal
citation omitted) (quoting Ormachea v. Ormachea, 67 Nev. 273, 291, 217
P.2d 355, 364 (1950)).
In Muije, the plaintiff prevailed at trial, but the jury award in
plaintiffs favor was less than the defendanes offer of judgment. 106 Nev.
at 665, 799 P.2d at 559-60. Accordingly, the district court awarded the
defendant attorney fees and costs, resulting in each party having a
judgment against the other. Id. The district court determined that it would
offset the amount of plaintiffs judgment from the amount she owed the
defendant in attorney fees and costs, extinguishing plaintiffs recovery. Id.
The plaintiffs attorney appealed, claiming that his attorney lien, which
predated the award of fees and costs, was superior to that of the defendanes
judgment and that the court should not have offset the two. Id.
On appeal, the supreme court concluded that an equitable offset
"is a means by which a debtor may satisfy in whole or in part a judgment or
claim held against him out of a judgment or claim which he has
subsequently acquired against his judgment creditor." Id. at 666-67, 799
P.2d at 560 (internal quotation omitted); see also Pennington v. Campanella,
180 So. 2d 882, 887 (La. Ct. App. 1965) (providing that parties "cannot
offset . . . debts which are not mutually owed and mutually demandable).
Thus, because the parties each had a judgment against the other, the Muije

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NEVADA

(01 1947B .4D1111.
court affirmed the equitable offset in favor of the defendant, concluding that
the attorney's lien attached to the net judgment, not the gross amount,
which, after the offset, was zero. Muije, 106 Nev. at 666-67, 799 P.2d at
560-61.
Here, relying on Muije, the district court ordered that Luxor's
judgment for attorney fees and costs "must first be offset from other
settlement funds received by [Harrison] and [Harrison's] attorney" and that
Luxor's judgment "takes priority over any other lien, including an attorney's
lien." But, unlike in Muije, there are not competing judgments between
Harrison and Luxor that are mutually owed and mutually demandable.
Equitable offsets are only applicable where a debtor obtains a subsequent
judgment against one of his or her creditors. Muije, 106 Nev. at 666, 799
P.2d at 560. Although Luxor had a collectable judgment against Harrison,
Harrison did not have a collectable judgment against Luxor. Thus, there
were no mutually owed judgments to offset.
Moreover, the Desert Medical settlement funds were part of a
settlement agreement between Harrison and Desert Medical, not Luxor, and
the district court did not reduce the settlement to judgment in favor of
Harrison. Thus, Luxor was not entitled to make a claim against the
settlement funds to satisfy its judgment before distribution, as the funds
from the high-low settlement were not a judgment subject to offset, but
instead were funds owed pursuant to a contract between the signatories,
Harrison and Desert Medical. Cf. Cunha v. Shapiro, 837 N.Y.S.2d 160, 163
(App. Div. 2007) (collecting cases and noting that "cases are legion wherein
courts have treated high-low agreements as settlements"); see also Power
Co. v. Henry, 130 Nev. 182, 189, 321 P.3d 858, 863 (2014) ("A settlement
agreement is a contract governed by general principles of contract law.").

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OF 6
NEVADA

i0) 1947F5 .410.
Therefore, we decline to extend Muije to include the facts and
circumstances presented here and conclude that the district court erred in
granting an offset where Luxor and Harrison did not have mutually owed
judgments that could be subject to offset. Accordingly, we reverse the
district court's order in part as to the offset.3 As to the Desert Medical
settlement funds, we remand this matter to the district court in order to
release the interpleaded funds to Harrison and her attorneys.4
IIL
Next, we address whether the district court abused its
discretion in awarding Luxor its fees.5 Harrison argues that the district
court abused its discretion in awarding Luxor its attorney fees as well as
the amount it awarded pursuant to NRCP 68, by pointing out

31n doing so, we recognize that there are competing public policy
considerations at issue, such as encouraging settlement versus not
rewarding a party for pursuing a frivolous claim. Nevertheless, we cannot
agree that a settlement agreement is the same as a judgment for the
purposes of offset, even in light of the public policy considerations
enunciated in Muije. This is particularly so in this case, where Luxor was
not a signatory to the settlement agreement.
4We need not reach the issue of whether Harrison's attorneys have
perfected their liens, as this likely will be considered upon distribution.
Further, we recognize that any future contested distribution may well
have to be made through a separately filed interpleader action with all
creditors properly served. However, we believe that the burden to ensure a
fair and ethical distribution of the funds is properly placed on Harrison's
counsel, including the filing of a separate interpleader action if necessary.
See RPC 1.15(d) (providing that "a lawyer shall promptly deliver to the
client or third person any funds or other property that the client or third
person is entitled to receive (emphasis added)).
5We note that Harrison does not challenge Luxor's award of costs.

COURT OF APPEALS
OF 7
NEVADA

to) 1947B 418#4,
inconsistencies between the district court's statements at the hearing and
those contained in its order. Luxor, on the other hand, argues that the
district court considered each of the required Beattie6 factors in making its
determination and therefore did not abuse its discretion in awarding
attorney fees or in determining the amount awarded.
An award of attorney fees is generally reviewed for an abuse of
discretion. Gunderson v. D.R. Horton, Inc., 130 Nev. 67, 80, 319 P.3d 606,
615 (2014). When deciding whether to award attorney fees under NRCP 68,
the district court must weigh four factors in determining whether attorney
fees are warranted. These factors include the following four things:
(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, 99 Nev. at 588-89, 668 P.2d at 274. Although it is preferable,
express factual findings on each factor are not necessary for a court to
properly exercise its discretion; rather, "the district court need only
demonstrate that it considered the required factors, and the award must be
supported by substantial evidence." Logan v. Abe, 131 Nev. 260, 266, 350
P.3d 1139, 1143 (2015). While all of these factors must be considered, not
one is outcome determinative, "and thus, each should be given appropriate
consideration." Frazier v. Drake, 131 Nev. 632, 642, 357 P.3d 365, 372 (Ct.
App. 2015).

6Beattie v. Thomas, 99 Nev. 579, 588-89, 668 P.2d 268, 274 (1983).

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OF
NEVADA
8
(0) 19478 401.
The district court made express findings pursuant to Beattie,
including applying the Brunzell7 factors, and determined that overall the
Beattie factors weighed in favor of awarding attorney fees, although the
district court ultimately reduced the total amount of fees awarded. The
record demonstrates that the final amount of fees the district court awarded
is supported by substantial evidence. Based on this record, we conclude
that the district court did not abuse its discretion in analyzing and
considering the Beattie factors as required, including in determining the
amount of fees to award.8 Therefore, the attorney fees award is affirmed.8
IV.
In conclusion, a party cannot make a claim for attorney fees and
costs—and thus the district court cannot offset—against settlement funds
from a third party that have not been reduced to a judgment. We reaffirm
that for an equitable offset to apply, there must be competing judgments

7Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31,
33 (1969).

8To the extent that Harrison argues the differences between the
district court findings and its order, the order ultimately controls. See Rust
v. Clark Cty. Sch. Dist., 103 Nev. 686, 689, 747 P.2d 1380, 1382 (1987)
(explaining that oral pronouncements from the bench are ineffective and
only a written judgment has legal effect). Accordingly, differences between
oral findings and the written findings do not render the written order
invalid, as only the written order has legal effect. See id. Therefore, because
the order demonstrates that the court considered each factor and its
decision is otherwise supported by substantial evidence, we conclude that
the district court did not abuse its discretion in awarding Luxor its attorney
fees. See Logan, 131 Nev. at 266-67, 350 P.3d at 1143.

8Insofar as the parties raise arguments that are not specifically
addressed herein, we have considered the same and conclude that they
either do not present a basis for relief or need not be reached given the
disposition of this appeal.

9
between the parties that are mutually owed and mutually demandable.
Thus, while we affirm the award for attorney fees, we reverse the district
court's order as to the offset and remand this matter to the district court for
the release of the interpleaded funds.

ittono•°"""---
o

Bulla

I concur:

Tao

10
GIBBONS, C.J., concurring in part and dissenting in part:
This case presents the issue of whether a district court can
accurately and fairly enter a large judgment for attorney fees against a
losing party when the court makes unsupported or incomplete findings as
to the factors identified in Beattie v. Thomas, 99 Nev. 579, 588-89, 668 P.2d
268, 274 (1983). I conclude that the district court's order is not legally
sufficient. Therefore, I would vacate the attorney fees award and remand
for the district court to engage in the correct process and follow the well-
established procedures. Accordingly, the entirety of the district court order
should be vacated because there is not a valid underlying basis to award
attorney fees to respondent. Regardless, I agree with the majority as to the
remaining issues and concur with the portion of the opinion reversing in
part and remanding to correct the offset.
Vivia Harrison was injured in the Luxor Hotel & Casino while
operating a motorized scooter. In February 2016, Harrison filed a complaint
against Ramparts, Inc. (Luxor) and Desert Medical Equipment (Desert
Medical) asserting claims, as relevant here, for negligence. In March 2017,
Luxor served an offer of judgment for $1,000 on Harrison, which was not
accepted, and the case proceeded to trial in December 2018. During trial,
Desert Medical offered Harrison a "high low" settlement offer of $150,000
to $750,000, depending on the ultimate verdict, which was accepted. The
jury returned verdicts in favor of both defendants; therefore, Desert Medical
owed $150,000 under the settlement agreement.
Luxor brought a motion for attorney fees and costs, seeking
$255,558 as the prevailing party under NRCP 68. Luxor requested a total
of $202,398 in attorney fees and $53,160 in costs. The district court granted

COURT OF APPEALS
OF
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(01 194711 4S0
the motion for attorney fees and costs in part and awarded $109,285.28,
apportioning $39,597.28 for costs and $69,688 for attorney fees.1
The district court summarily concluded in the written order
that the $1,000 offer was reasonable. The court, however, did not apply or
misstated the actual factors from Beattie. The court did not address if the
case was brought in good faith; rather, it stated that the facts and
allegations in the complaint were contrary to Harrison's own witnesses'
testimony. The court did not specifically address if the offer was reasonable
and in good faith as to timing and amount, or if it was grossly unreasonable
or in bad faith for Harrison to reject the $1,000 offer. The court did not
balance the Beattie factors but still determined that a partial award of
attorney fees was proper. Further, the court summarily denied Harrison's
motion for reconsideration.
On appeal, Harrison argues that the district court abused its
discretion by incorrectly applying all four factors set forth in Beattie.
Additionally, Harrison argues that the district court misapplied the factors
in Brunzell v. Golden Gate National Bank, 85 Nev. 345, 349, 455 P.2d 31,
33 (1969), and that the amount of the awarded fees was unreasonable. I
agree that the district court failed to correctly apply the first, second, and
third Beattie factors, failed to balance them against each other, and thus
misapplied Beattie. Further, the court failed to make adequate findings as
to all three Beattie factors. Therefore, the district court's judgment as to
attorney fees should be vacated and the case remanded for the district court

'While Luxor requested attorney fees as a prevailing party pursuant
to both NRS 18.010(2)(b) and NRCP 68, the district court made none of the
required findings under NRS 18.010(2)(b) and did not use this statute as
the basis for its decision. The court instead only awarded attorney fees
pursuant to NRCP 68.

2
to analyze all of the factors and make proper findings. Then it must engage
in a balancing of the first three factors against each other, as well as the
fourth factor, to determine if attorney fees should be awarded under the
facts of this case. While the district court did correctly apply the fourth
Beattie factor using Brunzell to determine the reasonable amount of
attorney fees, such fact is not relevant when deciding if the first three
factors of Beattie were satisfied. Therefore, I only address the first three
factors.
Under NRCP 68, a party may recover attorney fees and costs if
the other party rejects an offer of judgment and fails to obtain a more
favorable outcome. In 1983, the Nevada Supreme Court established four
factors in Beattie v. Thomas that must be considered when determining
whether it can award attorney fees under NRCP 68:
(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.
99 Nev. at 588-89, 668 P.2d at 274.
This court considered the application of the Beattie factors in
Frazier v. Drake, 131 Nev. 632, 357 P.3d 365 (Ct. App. 2015), and O'Connell
v. Wynn Las Vegas, LLC, 134 Nev. 550, 429 P.3d 664 (Ct. App. 2018). In
Frazier, we noted that
the first three factors all relate to the parties'
motives in making or rejecting the offer and
continuing the litigation, whereas the fourth factor
relates to the amount of fees requested. . . .
[But] [n]one of these factors are outcome

3
determinative . . . and thus, each should be given
appropriate consideration,
131 Nev. at 642, 357 P.3d at 372 (internal citations omitted). Further, as it
relates to the first three factors, we pointed out that the supreme court has
recognized that, "[i]f the good faith of either party in litigating liability
and/or damage issues is not taken into account, offers would have the effect
of unfairly forcing litigants to forego legitimate claims." Id. at 643, 357 P.3d
at 372 (alteration in original) (quoting Yamaha Motor Co., U.S.A. v. Arnoult,
114 Nev. 233, 252, 955 P.2d 661, 673 (1998)). In addition to noting the
public policy supporting the consideration of all of the Beattie factors, we
recognized in Frazier that "where . . . the district court determines that the
three good-faith Beattie factors weigh in favor of the party that rejected the
offer of judgment, the reasonableness of the fees requested by the offeror
[the fourth Beattie factor] becomes irrelevant, and cannot, by itself, support
a decision to award attorney fees to the offeror." ld. at 644, 357 P.3d at 373.
A district court's application of the Beattie factors is reviewed
for an abuse of discretion. LaForge v. State, Univ. & Cmty. Coll. Sys. of
Nev., 116 Nev. 415, 423, 997 P.2d 130, 136 (2000). "Such an abuse occurs
when the court's evaluation of the Beattie factors is arbitrary or capricious."
Frazier, 131 Nev. at 642, 357 P.3d at 372. "Claims for attorney fees
under.. . . NRCP 68 are fact intensive," and "5U the record clearly reflects
that the district court properly considered the Beattie factors, we will defer
to its discretion." Wynn v. Smith, 117 Nev. 6, 13, 16 P.3d 424, 428-29 (2001).
"[T]he district court's failure to make explicit findings is not a per se abuse
of discretion." Id. at 13, 16 P.3d at 428.
I conclude that the district court abused its discretion when
awarding attorney fees under NRCP 68, as the record does not clearly
reflect that the district court properly considered the first three Beattie
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factors. Although the district court enunciated the factors in its order, it
only summarily found that an award of attorney fees and costs was
appropriate pursuant to the factors articulated in Beattie and Brunzell. The
order itself fails to address the actual elements of the first three factors.
Further, despite this being a fact-intensive inquiry, the court made no
findings that the case was brought in bad faith, that the $1,000 offer was
reasonable and in good faith in both timing and amount, or that it was
grossly unreasonable or in bad faith for Harrison to reject the offer. Without
specific findings as to the elements of the first three Beattie factors, it is
impossible on the face of the order to understand how the court could have
balanced all of the factors. The record on appeal should provide support to
show that the district court properly considered and balanced these factors;
here it does not. See Wynn, 117 Nev. at 13, 16 P.3d at 428-29 ("If the record
clearly reflects that the district court properly considered the Beattie
factors, we will defer to its discretion."); cf. Willard v. Berry-Hinckley Indus.,
136 Nev. 467, 471, 469 P.3d 176, 180 (2020) (holding that district courts
must issue explicit and detailed findings for NRCP 60(b)(1)
determinations).
Specifically, as to the first factor, the court focused on evidence
that was provided for the first time in discovery or at trial, not when
Harrison filed suit, which is how good faith under this factor is assessed.
As to the second factor, the court noted that discovery had not been
completed and made no finding that the offer was reasonable and in good
faith as to both timing and amount. As to the third factor, the court found
that Harrison was aware of substantial defects in the case and still rejected
the offer. Yet the court did not conclude that the rejection of a $1,000 offer
was grossly unreasonable or made in bad faith. On the contrary, the court

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recognized at the hearing that $1,000 was not really intended to settle the
case because it would not even cover the cost of filing the case. Thus, the
findings as to the first factor misapplied and misconstrued the rule, the
findings as to the second factor were significantly incomplete and tended to
favor Harrison, and the findings as to the third factor omitted the key
element of gross unreasonableness or bad faith. Finally, the court did not
balance the factors and explain what factor may have been dispositive or
outweighed by any other factors.
My conclusion is further supported by the fact that Desert
Medical offered to settle for $150,000 to $750,000 during trial. Because this
offer was extended during trial, there is an inference that Harrison
presented some credible evidence during trial, at least as to Desert
Medical's negligence, and Luxor's $1,000 offer made more than 20 months
before trial was not reasonable in timing or amount, or was not rejected in
bad faith or otherwise grossly unreasonable.
Here, the district court focused its attention on the fourth
Beattie factor, the reasonableness of the amount of the requested attorney
fees. This factor should not have been addressed until the first three factors
were fully considered and balanced against each other to establish a legal
basis for awarding attorney fees. See Frazier, 131 Nev. at 643, 357 P.3d at
372 ("[T]he fourth Beattie factor.. . . does not have any direct connection
with the questions of whether a good-faith attempt at settlement has been
made or whether the offer is an attempt to force a plaintiff to forego
legitimate claims.").
It is important to note that the first three Beattie factors involve
a qualitative analysis, not a quantitative analysis. Each factor mandates
the district court to evaluate and measure something different, so the

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ultimate weight attached to each factor is case-specific. Factor one focuses
on the good faith of the plaintiff at the moment the complaint is filed. In
this case, that was in February 2016. It does not matter under this factor
that the complaint was ultimately found to be nonmeritorious as to Luxor.
See Assurance Co. of Am. v. Nat'l Fire & Marine Ins. Co., No. 2:09—CV-1182,
2012 WL 6626809, *3 (D. Nev. Dec. 19, 2012) ("Plaintiffs, incorrectly in
hindsight, believed they had a good chance of success on the merits and
pursued the claims in good faith."); Max Baer Prod. Ltd. v. Riverwood
Partners, LLC, No. 3:09—CV-00512, 2012 WL 5944767, *3 (D. Nev. Nov. 26,
2012) ("Claims may be unmeritorious and still be brought in good faith.").
Cf. NRS 7.085 (providing that the court shall sanction an attorney that has
brought a case not grounded in fact, not warranted by existing law, or
without a good faith argument for changing the law).
The second factor has multiple components. The defendant has
to act in good faith and must make a reasonable offer, both in its timing and
in amount. Limar acknowledges as much in its answering brief. However,
was it in good faith to make an offer before discovery was completed? Was
it in good faith to offer a token amount? Was Luxor merely attempting to
create the foundation to file a motion for attorney fees years later while not
really trying to settle the case? See Frazier, 131 Nev. at 644, 357 P.3d at
373 (emphasizing the necessity of considering the parties good faith;
otherwise, an offer could merely be an attempt to force a litigant to forgo a
legitimate claim).
The district court did not address these good faith threshold
questions. The court made no finding that the timing was reasonable.
Indeed, the court suggested it might not have been because only "some
discovery was conducted" at that point. Consequently, the district court

7
should have explained why these circumstances satisfied the burden that
was on Luxor to show reasonableness as to timing.
Assuming the court could find the timing reasonable, the court
would then need to evaluate the amount offered and find that it also was
reasonable. However, the court expressed doubt at the February hearing
about the reasonableness of the amount, stating that, from the perspective
of a former trial attorney, 11,000 offers of judgment (were viewed
asl . . . just ludicrous." Therefore, making findings as to all components of
factor two was crucial in light of Luxor's burden to establish good faith and
reasonableness as to timing and amount. This $1,000 offer of judgment
might seem reasonable in hindsight, but an inquiry into good faith and
reasonableness as to timing and amount was still necessary and
conspicuously lacking from the district court's order.2 Indeed, findings were
especially important in this case, since the facts and comments from the
district court as to the second Beattie factor seem to point in the opposite
direction of the result ultimately reached. We should not now consider
unexplained and incomplete fmdings as decisive. See Davis v. Ewalefo, 131

2 In contrast, in Tutor Perini Building Corp. v. Show Canada
Industries US, Inc., No. 74299, 2019 WL 2305717 (Nev. May 29, 2019),
Show Canada made Tutor Perini an offer of judgment for $950,000; the
verdict in favor of Show Canada was for $908,892, plus $601,960 in
prejudgment interest. The supreme court upheld the subsequent award of
attorney fees to Show Canada under NRCP 68 in part due to the finding of
the district court that Tutor Perini engaged in fraudulent activity, and also
because while one factor had deficient findings, the record supported the
overall conclusion as to that factor. Therefore, the dollar amounts and the
unique circumstances of that case justified an affirmance even though the
district court did not make explicit findings as to all of the Beattie factors.

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Nev. 445, 450, 352 P.3d 1139, 1142 (2015) (providing that we do not defer
"to findings so conclusory they may mask legal erroe).
I now turn to the district court's failure to apply the elements
of factor three. While factors one and two require both an objective and a
subjective analysis as to good faith, and factor two additionally looks to
reasonableness, factor three is different. It requires an objective and
subjective analysis of the plaintiffs reaction to the offer during the 10-day
period immediately following the communication of the offer, as the offer
expires at that point.3 The district court must determine whether the
decision to reject the offer and proceed to trial was grossly unreasonable or
in bad faith. Therefore, even if the offer was determined to be reasonable
under the second factor, that is not the standard when considering the third
factor. Luxor had to show it was grossly unreasonable or in bad faith for
Harrison to fail to accept the offer during the 10-day period following
March 23, 2017.
As previously discussed, discovery had not been completed.
Luxor knew Harrison was seeking a large amount in damages. Luxor was
only offering $1,000, and Desert Medical ultimately offered up to $750,000.
The circumstances as they existed on March 23, 2017, must be understood

3 The Nevada Rules of Civil Procedure were amended effective
March 1, 2019. See In re Creating a Comm. to Update & Revise the Nev.
Rules of Civil Procedure, Docket No. ADKT 0522 (Order Amending the
Rules of Civil Procedure, the Rules of Appellate Procedure, and the Nevada
Electronic Filing and Conversion Rules, Dec. 31, 2018) ("[T]his amendment
to the [NRCP] shall be effective prospectively on March 1, 2019, as to all
pending cases and cases initiated after that date."). As is pertinent here,
the claim, offer of judgment, trial, and motion for attorney fees were all
initiated prior to March 1, 2019. Therefore, I use the version of the NRCP
in effect at that time.

9
when evaluating whether Harrison acted in bad faith in rejecting the offer.
Further, the circumstantial setting provides context when judging whether
it was grossly unreasonable to reject the offer. See, e.g., Yamaha, 114 Nev.
at 252, 955 P.2d at 673 (explaining that "offers [should not] have the effect
of unfairly forcing litigants to forego legitimate claims and remanding for
the court to reweigh all four Beattie factors).
Luxor contends that failing to accept the offer was grossly
unreasonable because either the case was brought in bad faith or it had no
merit and Harrison knew as much. In essence, failing to accept any offer,
even prior to the completion of discovery, was grossly unreasonable.
However, the district court never made an oral or written finding or legal
conclusion as to the elements of this factor. The very brief apparent
reference to factor three in the order was that "[Harrison] was aware of the
substantial defects in the case and still rejected Luxor's offer of judgment."
Such a factual determination supports a conclusion that Harrison acted
unreasonably. The supreme court in Beattie, however, has stated that a
plaintiff must have acted in a grossly unreasonable way, or in bad faith—a
much higher level of culpability than unreasonableness. Here, the district
court never made a factual finding or a legal conclusion that it was grossly
unreasonable or in bad faith for Harrison to reject the $1,000 offer in April
2017.
To show Harrison's decision was grossly unreasonable, Luxor
needed to overcome this high hurdle. See Assurance Co. of Am., 2012 WL
6626809, at 3. The amount of damages the plaintiff seeks and the need for
discovery are considerations in deciding whether it is grossly unreasonable
to reject an offer. See Sands Expo & Convention Ctr., Inc. v. Bonvouloir,
No. 67091, 2016 WL 5867493 (Nev. Oct. 6, 2016) ("[The] decision to reject

10
the . . . offer in the face of extensive anticipated damages and on-going
discovery does not appear grossly unreasonable."). In addition, as Harrison
argues, and as stated earlier in this dissent when discussing the Frazier
case, the policy behind offers of judgment is not to coerce plaintiffs into
accepting token or low-ball offers when there is a viable case with
potentially large damages. The district court needed to carefully analyze
and explain why it was nonetheless grossly unreasonable or in bad faith to
reject such an offer at that stage of the litigation. See Frazier, 131 Nev. at
643, 357 P.3d at 373.
Looking at the three factors as a whole, the district court
impliedly found factor one favored Luxor but viewed the situation as it
existed later in the proceedings, not when the complaint was filed, as
required by Beattie. As to factor two, the court stated that discovery had
not been completed and never concluded that the offer was extended in good
faith or that it was reasonable as to timing or amount. As to factor three,
the court failed to determine if the rejection of the $1,000 offer was grossly
unreasonable or in bad faith.
Finally, it was critically important for the district court to make
findings and legal conclusions to explain why a factor may outweigh another
factor or is otherwise given more weight, because no single factor is
determinative. See Yamaha, 114 Nev. at 252 n.16, 955 P.2d at 673 n.16
("The district court is reminded that no one factor under Beattie is
determinative, and that it has broad discretion to grant the request so long
as all appropriate factors are considered." (emphasis added)). Merely
"considerine the factors is not enough, as that is only part of the process.
See State Drywall, Inc. v. Rhodes Design & Dev., 122 Nev. 111, 119 n.18,
127 P.3d 1082, 1088 n.18 (2006) (holding the district court did not properly

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consider the Beattie factors where the record did not reflect "what, if any,
analysis was made and recognizing that the record must reflect this
analysis for the decision to be upheld).
Therefore, I conclude that the district court abused its
discretion by failing to properly consider and apply the first, second, and
third Beattie factors, to explain their interplay with each other, which itself
was not supported by any findings, or to then determine and balance factor
four, if the first three factors supported the discretionary award of attorney
fees. A remand to apply the elements of each factor is necessary. Public
policy also supports this conclusion, as litigants should not be coerced into
settling cases because of the fear of large awards of attorney fees, which the
court might determine months or years later, in hindsight, should be
awarded because a token offer was reasonable. Further, cautioning the
district courts to correctly apply Beattie has not been sufficient, as this case
illustrates.4 Allowing a court to impose a large, five-figure judgment
against a party for attorney fees in a summary proceeding, when the court
itself does not fully follow the correct procedure, is incompatible with
justice. Making appropriate findings alleviates any such concern.
Therefore, I concur in part and dissent in part and would vacate
the attorney fees award and remand this case to the district court to make

4 See Schwartz v. Estate of Greenspun, wherein the supreme court
stated in 1994 that it "caution [ed] the trial bench to provide written support
under the Beattie factors for awards of attorney's fees made pursuant to
offers of judgment even where the award is less than the sum requested,"
as "[i] t is difficult at best for this court to review claims of error in the award
of such fees where the courts have failed to memorialize, in succinct terms,
the justification or rationale for the awards." 110 Nev. 1042, 1050, 881 P.2d
638, 643 (1994).
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findings as to each Beattie factor and then balance them to determine if a
judgment for attorney fees should be entered.

/ /(i
Gibbons