                          IN THE SUPREME COURT OF THE STATE OF NEVADA


                PARKS! AMERICA, INC.; AND PARKS                       No. 66949
                STAFFING SERVICES, LLC,
                Appellants/Cross-Respondents,
                vs.
                                                                        FILED
                STANLEY HARPER; AND COMPUTER                             JUL 2 8 2016
                CONTACT SERVICES, INC.,                                  TRACIE K. LINDEMAN
                Respondents/Cross-Appellants.                         CLERK OF SUPREME COURT

                                                                           DEPUTY CLERK

                      ORDER AFFIRMING IN PART AND REVERSING IN PART
                              AND DISMISSING GROSS-APPEAL
                             This is an appeal from district court summary judgments
                certified as final under NRCP 54(b) and an appeal and cross-appeal from
                an order awarding attorney fees and costs in a tort and contract action.
                Eighth Judicial District Court, Clark County; Susan Scann, Judge.
                             Appellants brought claims against respondents for fraud, civil
                conspiracy to commit fraud, breach of fiduciary duty, and aiding and
                abetting breach of fiduciary duty based on an allegedly fraudulent scheme
                related to the sale and reconveyance of an employment services agency.
                Respondents counterclaimed for breach of the reconveyance agreement.
                On respondents' motions, the district court granted summary judgment on
                all claims and counterclaims. The district court thereafter granted in part
                respondents' motion for attorney fees and costs under a prevailing party
                provision contained in the reconveyance agreement.
                Summary judgments
                             Having reviewed the parties' briefs and appendices, we
                conclude that summary judgment was proper as to all of appellants'
                claims.    Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029
                (2005) (reviewing de novo a district court summary judgment). Appellants

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                failed to present evidence to support their theory that respondents entered
                into a scheme to defrahd appellants by making false representations and
                omissions, thereby inducing appellants to purchase and then reconvey the
                employment services business at unfair prices or that they were damaged
                as a result. Barmettler, 114 Nev. at 446-47, 956 P.2d at 1386 (recognizing
                that plaintiff bears the burden of proving each element of its fraud claim
                by clear and convincing evidence); Anderson v. Liberty Lobby, Inc.,      477
                U.S. 242, 254 (1986) ("[I]n ruling on a motion for summary judgment, the
                judge must view the evidence presented through the prism of the
                substantive evidentiary burden."); Barmettler v. Reno Air, Inc., 114 Nev.
                441, 447, 956 P.2d 1382, 1386 (1998) (reciting the required elements for a
                viable fraud claim, which include a defendant's false representation to the
                plaintiff and damage to the plaintiff as a result of plaintiffs justifiable
                reliance on that false representation). Thus, appellants failed to meet
                their burden to show that any genuine issues of material fact remained in
                dispute regarding their fraud claim.       Wood, 121 Nev. at 729, 121 P.3d at
                1029. Because appellants' civil conspiracy to commit fraud, breach of
                fiduciary duty, and aiding and abetting breach of fiduciary duty claims
                were predicated on the same alleged misrepresentations regarding the
                value and actual purchase price of the business as set forth in the various
                agreements, the district court also properly granted summary judgment
                on those claims. 1 Wood, 121 Nev. at 729, 121 P.3d at 1029.
                            As to respondents' counterclaim for breach of the reconveyance
                agreement, the district court properly determined that the agreement's

                      1 The district court alternatively granted summary judgment based
                on the expiration of the statutes of limitation. In light of this order, we
                need not reach this issue.


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                release provision was lear on its face and thus should be enforced as
                written. State ex rel. Masto v. Second Judicial Dig. Court, 125 Nev. 37,
                44, 199 P.3d 828, 832 (2009); see Chwialkowski v. Sachs, 108 Nev. 404,
                406-07, 834 P.2d 405, 406 (1992) (holding that summary judgment was
                proper based on an unambiguous release provision in a contract).
                Although appellants argued that the reconveyance agreement was
                procured through fraud and was thus unenforceable, the evidence showed
                that appellants' board members were aware that the agreement would
                contain a release provigon, and no board member objected to the inclusion
                of a mutual release of claims. While appellants also argue that they were
                not aware of their claims at the time the agreement was approved and
                signed, the agreement released all claims related to the purchase and sale
                of the employment services agency "whether known or unknown." The
                district court therefore correctly determined as a matter of law that
                appellants breached the reconveyance agreement when they filed their
                amended complaint asserting claims against respondents.     Chwialkowski,
                108 Nev. at 406-07, 834 P.2d at 406. Thus, we affirm the district court's
                summary judgment on respondents' counterclaim.
                Attorney fees and costs
                            Appellants argue that because their claims were grounded on
                fraud and conspiracy rather than a dispute over the reconveyance
                agreement, the district court abused its discretion by awarding fees under
                the prevailing party provision in the reconveyance agreement. We
                disagree. Appellants I alleged that respondents' misrepresentations led
                them to reconvey the employment services agency at a below-market price
                and that they were entitled to damages as a result. The reconveyance
                agreement broadly provides for an award of attorney fees and costs to the

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                prevailing party based ion "any dispute or disagreement arising out of or in
                connection with" the I agreement. As appellants' complaint directly
                implicated the reconveyance agreement, respondents' attorney fees were
                recoverable under that agreement's prevailing party provision.     Davis   V.

                Beling, 128 Nev. 3012, 321, 278 P.3d 501, 515 (2012) (noting that attorney
                fees are recoverable when authorized by contract and whether a contract
                authorizes a fee award' is a question of law that is reviewed de novo). And
                although appellants also argue that the award was excessive based on the
                amount of work done and the unreasonableness of the hourly rates
                charged by respondents' attorneys and paralegals, the district court
                considered the necessary factors, including the quality of the advocacy and
                the favorable result obtained, in granting in part respondents' motion for
                attorney fees and awarding them $90,000 less than they requested. Kahn
                v. Morse & Mowbray, 121 Nev. 464, 479, 117 P.3d 227, 238 (2005) ("The
                decision to award attorney fees is within the sound discretion of the
                district court and will not be overturned absent a manifest abuse of
                discretion." (quotations omitted)); Brunzell v. Golden Gate Nat'l Bank, 85
                Nev. 345, 349-50, 455 P.2d 31, 33 (1969). We perceive no abuse of
                discretion in that determination, and we affirm the district court's award
                of attorney fees.
                            As to the costs award, we agree with appellants that
                respondents failed to show that certain expenses were actually incurred in
                the litigation and thus should not have been included in the costs award.
                Cadle Co. v. Woods & Erickson, LLP, 131 Nev., Adv. Op. 15, 345 P.3d
                1049, 1054 (2015) (holding that district courts are given "wide, but not
                unlimited, discretion to award costs to prevailing parties"); see also NRS
                18.020 and NRS 18.050. In particular, the $12,633.79 awarded for in-

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                      house litigation costs was based on respondents' estimate, arrived at by
                      calculating 2.5% of inVoiced attorney fees. "[P]arties may not simply
                      estimate a reasonable ainount of costs," but must show that the costs were
                      actually incurred. Cadle Co., 131 Nev., Adv. Op. 15, 345 P.3d at 1054; see
                      GibeRini v. Klindt, 110 Nev. 1201, 1205-06, 885 P.2d 540, 543 (1994). As
                      respondents failed to show that $12,633.79 was actually incurred as in-
                      house litigation costs, we reverse the district court's award of these costs.
                      For the same reason, we reverse the district court's award of $426 in "per
                      diem" travel costs, as respondents did not show that they actually incurred
                      the $426 in costs. Cadle Co., 131 Nev., Adv. Op. 15, 345 P.3d at 1054. As
                      the remainder of the costs were supported by a memorandum of costs and
                      documentation showing they were actually incurred, we perceive no abuse
                      of discretion in the district court's decision to award the remaining costs,
                      and therefore affirm the remainder of the district court's costs award.
                      Respondents' cross-appeal
                                  In their cross-appeal, respondents argue that the district court
                      erred by rejecting their alternative arguments that they were entitled to
                      attorney fees and costs as special damages or based on their offer of
                      judgment. Respondents do not argue that they were entitled to fees
                      beyond those awarded by the district court under the prevailing party
                      provision of the reconveyance agreement. Respondents therefore lack
                      standing to appeal as they prevailed on their request for fees and costs
                      and were not aggrieved by the district court's order. NRAP 3A(a); Ford v.
                      Showboat Operating Co., 110 Nev. 752, 755, 877 P.2d 546, 548 (1994). We
                      therefore dismiss respondents' cross-appeal.
                                  In sum, and consistent with the foregoing, we affirm the
                      district court's summary judgments, affirm in part the attorney fees and

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                      costs award and reverse in part to the extent that it included costs not
                      supported by documentation showing that the costs were actually
                      incurred, and dismiss the cross-appeal.
                                  It is so ORDERED.




                                                                        N vVvv   —NJ        J.
                                                                Gibbons



                      cc: Hon. Susan Scann., District Judge
                           Ara H. Shirinian; Settlement Judge
                           Howard & Howard Attorneys PLLC
                           Brownstein Hyatt Farber Schreck, LLP/Las Vegas
                           Eighth District Court Clerk




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