                  Docket No. 63942
                               In their summary judgment motions, the parties
                  acknowledged that no genuine issues of material fact existed, that the sole
                  legal issue for the district court to determine was whether Rosemere
                  Estates Property Owners Association needed unanimous consent from its
                  members to amend its CC&Rs, and that NRS 116.2117 did not dictate the
                  outcome of this legal issue. Based on this common ground, the district
                  court concluded that unanimous consent was required because, under
                  common-law principles, the original CC&Rs were reciprocal servitudes
                  that could not be amended absent unanimous consent from the affected
                  property owners.
                               We have considered the arguments in Rosemere's opening
                  brief and conclude that they do not call into question the basis for the
                  district court's summary judgment. Nor are we persuaded that
                  Rosemere's arguments otherwise warrant reversal of the summary
                  judgment. In particular, we are not persuaded by Rosemere's argument
                  regarding Section 37 of 1999 Senate Bill 451 because Rosemere has not
                  identified any provision in the original CC&Rs that did not conform to
                  NRS Chapter 116 and that would have required amendment.' As for
                  Rosemere's argument that the Lytles failed to include a sworn statement
                  in their complaint, this court has never held that NRS 38.330(5)'s sworn-
                  statement requirement is jurisdictional. Accordingly, we affirm the
                  district court's July 30, 2013, summary judgment in Docket No. 63942. 2


                        'Nor has Rosemere explained how its 2007 amendments complied
                  with Section 37's October 2000 deadline for making such amendments.

                        2 We  have considered Rosemere's remaining arguments and conclude
                  that they either lack merit, have no bearing on the legal issue presented to
                  the district court, or both.
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                Docket No. 65294
                                The Lytles challenge the district court's (1) order denying their
                request for monetary damages and (2) order partially granting Rosemere's
                motion to retax costs.
                      Monetary damages
                                The district court denied the Lytles' request for monetary
                damages based on the conclusion that monetary damages are not
                recoverable in a declaratory relief action. On appeal, the Lytles contend
                that this conclusion was erroneous, as NRS 30.100 expressly authorizes
                district courts to award monetary damages in declaratory relief actions.
                We agree. 3 See Fred Ahlert Music Corp. u. Warner/Chappell Music, Inc.,
                155 F.3d 17, 25 (2d Cir. 1998) (recognizing that district courts have
                authority under NRS 30.100's federal counterpart to award monetary
                damages as "further relief'). Accordingly, we vacate the district court's
                March 11, 2014, order and remand for further proceedings consistent with
                this order. 4




                       3 Rosemere  contends that the Lytles did not rely on NRS 30.100 in
                district court and should be prohibited from doing so for the first time on
                appeal. Cf. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981,
                983 (1981) ("A point not urged in trial court. . . is deemed to have been
                waived and will not be considered on appeal."). Because the district court
                sua sponte denied the Lytles' request for damages based on an erroneous
                legal conclusion, Old Aztec's waiver rule is inapplicable.

                       4 Rosemere contends that the district court's order should be affirmed
                on the alternative ground that the Lytles failed to provide admissible
                evidence to support their requested monetary damages. Because the
                record on appeal is unclear in this respect, we decline to do so. See Zugel
                v. Miller, 99 Nev. 100, 101, 659 P.2d 296, 297 (1983) ("This court is not a
                fact-finding tribunal. . . .").
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                           Costs
                                   The Lytles contend that the district court abused its discretion
                     in partially granting Rosemere's motion to retax costs. Cadle Co. v. Woods
                     & Erickson, LLP, 131 Nev., Adv. Op. 15, 345 P.3d 1049, 1054 (2015)
                     (recognizing that district courts have wide discretion in determining
                     whether to award costs). In particular, the Lytles contend that they
                     provided sufficient documentation to demonstrate that they reasonably,
                     necessarily, and actually incurred costs relating to (1) photocopies and
                     telecopies, and (2) filing fees and e-filing charges. We disagree with the
                     Lytles' contention with respect to the first category, see id., but agree with
                     the Lytles' contention with respect to the second category, particularly in
                     light of Rosemere's failure to specifically address that issue. See Ozawa v.
                     Vision Airlines, Inc., 125 Nev. 556, 563, 216 P.3d 788, 793 (2009) (treating
                     the failure to respond to an argument as a confession of error).
                     Accordingly, we reverse the district court's February 13, 2014, order to the
                     extent that it denied the Lytles' request for costs relating to filing fees and
                     e-filing charges. All other aspects of that order are affirmed.
                     Docket No. 65721
                                   The parties dispute whether the Lytles timely filed their
                     motion for attorney fees. We agree with the Lytles that their motion was
                     filed within 20 days from the notice of entry of the final judgment, which
                     rendered their motion timely.      See Barbara Ann Hollier Trust v. Shack,
                     131 Nev., Adv. Op. 59, P.3d , (2015); see also Miltimore Sales,
                     Inc. v. Int'l Rectifier, Inc., 412 F.3d 685, 688 (6th Cir. 2005); Weyant v.
                     Okst, 198 F.3d 311, 314 (2d Cir. 1999).
                                   The parties next dispute whether a statute, rule, or
                     contractual provision authorized the Lytles to recover attorney fees. Both
                     parties agree, however, that NRS 116.4117 authorizes attorney fees if the
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                prevailing party suffers "actual damages." NRS 116.4117(1), (6). In light
                of our determination in Docket No. 65294 that the Lytles may be entitled
                to monetary damages, cf. Davis v. Beling, 128 Nev., Adv. Op. 28, 278 P.3d
                501, 512 (2012) (equating "actual damages" with "compensatory
                damages"), the district court's denial of attorney fees may have been
                improper.° Accordingly, we vacate the district court's May 29, 2014, order
                denying attorney fees and remand for further proceedings consistent with
                this order.
                              It is so ORDERED.




                                        Saitta



                Gibboris                                  Pickering
                                                                   P debt (iv         J.




                cc:   Hon. Michelle Leavitt, District Judge
                      Sterling Law, LLC
                      Gibbs Giden Locher Turner Senet & Wittbrodt LLP
                      Leach Johnson Song & Gruchow
                      The Williamson Law Office, PLLC
                      Eighth District Court Clerk




                      °In light of our determination in this respect, we decline to consider
                the parties' arguments regarding whether the original CC&Rs or the
                amended CC&Rs authorized attorney fees. We likewise decline to
                consider the parties' arguments regarding whether the Lytles' requested
                fees were reasonable.
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DocketNunlIF    -   65970




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    I I 210 I 1 1
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      I 111 I II I I
            MI
                        IN THE SUPREME COURT OF THE STATE OF NEVADA


                MARION COLLINS,                                       No. 65970
                Appellant/Cross-Respondent,
                vs.
                OCEAN WEST NEVADA CORP.,
                                                                           FILED
                Respondent/Cross-Appellant.                                OCT 1 9 2015
                                                                         TRACE K. UNDEMAN
                                                                      CLERK OF.ALJPREME COURT
                                                                      BY   r 771
                                                                            DEPUT9I-C4-LAEHI-rlY

                                   ORDER AFFIRMING IN PART,
                               REVERSING IN PART AND REMANDING
                            This is an appeal and cross-appeal from a district court
                judgment in a breach of contract action. Eighth Judicial District Court,
                Clark County; Stefany Miley, Judge.
                            The parties entered into a contract for respondent to make
                improvements to appellant's home to make it handicap accessible. The
                improvements would be paid for through a grant appellant received from
                the Department of Veteran Affairs (VA). Respondent substantially
                completed the improvements, but then appellant denied respondent access
                to the home to finish the work. Both parties sued and the matter went to
                arbitration where respondent was awarded $16,893.87. Appellant filed a
                request for a trial de novo and after a short trial, a judgment was entered
                wherein respondent received an additional $1,500 and appellant received
                $1,500. The district court also awarded respondent its costs but denied
                respondent's request for attorney fees. This appeal and cross-appeal
                followed.
                            As an initial matter, appellant argues that the district court
                lacked subject matter jurisdiction because respondent failed to exhaust its
                administrative remedies that were available under the escrow agreement.
                Because respondent's action is based on the building contract, not the
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                escrow agreement, and exhaustion of administrative remedies was not
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                                                                                       i,5 -3115
                      statutorily mandated, the district court had subject matter jurisdiction.'
                      See Eluska v. Andrus, 587 F.2d 996, 999 (9th Cir. 1978) (explaining that
                      when exhaustion is statutorily mandated, the exhaustion requirement is
                      jurisdictional but when it is not, the court has discretion to dismiss the
                      action). Similarly, because the VA was not a party to the building contract
                      that was the basis for respondent's breach of contract action and the VA
                      was merely the escrowee of appellant's grant funds, appellant's argument
                      that the VA was a necessary party is without merit.          See NRCP 19(a)
                      (defining necessary parties).
                                   Further, we conclude that the district court did not err in
                      awarding respondent damages for appellant's breach of the building
                      contract because respondent was properly licensed to complete the work,
                      appellant failed to pay respondent through the funds supplied by his VA
                      grant or otherwise, and the timeframe for completing the project was
                      extended. 2 Whitemaine v. Aniskovich,     124 Nev. 302, 308, 183 P.3d 137,
                      141 (2008) (providing that this court reviews contract interpretation de
                      novo and the district court's findings of facts for• substantial evidence).
                      Also, the district court did not abuse its discretion in awarding respondent
                      its costs as the prevailing party because the district court's order indicates

                            'We note that nothing in the record indicates that appellant
                      presented this argument to the district court and requested dismissal.

                            2 Inregard to appellant's argument that the district court should
                      have compelled arbitration between respondent and its subcontractor, who
                      is not a party on appeal, because appellant was not a party to the
                      arbitration agreement between respondent and the subcontractor,
                      appellant did not have standing to compel arbitration between the two
                      parties. See generally Truck Ins. Exch. v. Palmer J. Swanson, Inc., 124
                      Nev. 629, 633-34, 189 P.3d 656, 659(2008) (explaining that if one does not
                      have an agreement to arbitrate with a party, then one cannot force that
                      party to arbitrate).
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                that the $1,500 award to respondent was in addition to the $16,893.87
                that respondent had already received from the arbitrator.           Parodi v.
                Budetti, 115 Nev. 236, 240, 984 P.2d 172, 174 (1999) (explaining that this
                court reviews an award of costs and fees for an abuse of discretion).
                            We conclude, however, that the district court abused its
                discretion in denying respondent's request for its attorney fees.   Id. NAR
                20(B)(2)(a) provides that if a party requests a trial de novo after an
                arbitration award of less than $20,000 and does not reduce the judgment
                by at least twenty percent, the non-requesting party is entitled to its fees
                incurred in the trial de novo. Because appellant failed to reduce
                respondent's award by at least twenty percent, the district court should
                have awarded respondent its attorney fees incurred in the trial de novo.
                Therefore, while we affirm the district court's judgment and award of
                costs, we reverse the court's denial of respondent's request for attorney
                fees and remand this matter for proceedings consistent with this order.
                            It is so ORDERED.




                                         Saitta


                                                                                        J.
                Gibboris                                   Pickering



                cc:   Hon. Stefany Miley, District Judge
                      Thomas J. Tanksley, Settlement Judge
                      Michael R. Pontoni
                      Jolley Urga Wirth Woodbury & Little
                      Eighth District Court Clerk

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