                                         130 Nev., Advance Opinion 1
                     IN THE SUPREME COURT OF THE STATE OF NEVADA


                ROBERT GUNDERSON; PHYLLIS                  No. 56614
                GUNDERSON; SHARRON LIBBY;
                ROSARIO LAYTON; TOMI DUREN;
                LINDA WATERS; JESSICA GRANT;
                CLIFFORD COUSER; CHARINA                   FILED
                COUSER; DEANNA DAVIS; RICHARD
                                                           FEB 2 7 2014
                T. JONES; MESSINA KLEIN;
                                                                     )77111ort
                MELANIE MOORE; JOHN                    CLET
                                                          R

                MENICHELLI; BERNADETTE                BY
                                                           CM   DEPUn CLERK
                MENICHELLI; SUZANNE ALLEN;
                ROBERT WEBER; KAREN KELLISON;
                JUAN LOPEZ; HELEN SCUNGIO;
                SHONNA MAYFIELD; GUNTHER R.
                PAUL; SHARON EPSTEIN; STEPHEN
                GREGORY; WENDY MURATA;
                VANESSA CASTER; WANDA
                BERKHOLTZ; DENNIS WERRA;
                AMANUAL ASFAHA; EDIT MOLNAR;
                FRANK SUTTON; GAGANATH M.
                PYARA; JESSE SAUNDERS; JODI
                MARTIN; JOSHUA DAVIS; KRISTI
                RODRIGUEZ; LYNN NOWAKOWSKI-
                BACON; JOHN NOWAKOWSKI-
                BACON; MARGARET DUDLEY;
                MICHELLE JOHNSON; MIGUEL
                SANTANA; DESIREE SANTANA;
                PATRICIA BARRETT; RANDY
                FERREN; PATRICK MCGOUGH;
                NANCY JANSEN; AND BARBARA
                WERRA,
                Appellants/Cross-Respondents,
                   vs.
                D.R. HORTON, INC., A DELAWARE
                CORPORATION,
                Respondent/Cross-Appellant.



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                              Appeal and cross-appeal from a district court judgment on a
                  jury verdict in a construction defect action and an appeal from an order
                  denying a new trial. Eighth Judicial District Court, Clark County;
                  Kenneth C. Cory, Judge.
                             Affirmed in part, reversed in part, and remanded.


                  James R. Christensen, Las Vegas,
                  for Appellants/Cross-Respondents Robert Gunderson, Phyllis Gunderson,
                  Linda Waters, Jessica Grant, Clifford Couser, John Menichelli, Bernadette
                  Menichelli, Robert Weber, Juan Lopez, Helen Scungio, Shonna Mayfield,
                  Gunther R. Paul, Wendy Murata, Wanda Berkholtz, Lynn Nowakowski-
                  Bacon, Margaret Dudley, Michelle Johnson, Patricia Barrett, Patrick
                  McGough, Nancy Jansen, and Barbara Werra.

                  Sharron Libby, Rosario Layton, Tomi Duren, Charina Couser, Deanna
                  Davis, Richard T. Jones, Messina Klein, Melanie Moore, Suzanne Allen,
                  Karen Kellison, Sharon Epstein, Stephen Gregory, Vanessa Caster,
                  Dennis Werra, Amanual Asfaha, Edit Molnar, Frank Sutton, Gaganath M.
                  Pyara, Jesse Saunders, Jodi Martin, Joshua Davis, Kristi Rodriguez, John
                  Nowakowski-Bacon, Miguel Santana, Desiree Santana, and Randy Ferren,
                  in Proper Person.

                  Wolfenzon Rolle and Bruno Wolfenzon and Jonathan P. Rolle, Las Vegas;
                  Marquis Aurbach Coifing and Jack Chen Min Juan and Micah S. Echols,
                  Las Vegas,
                  for Respondent/Cross-Appellant.


                  BEFORE THE COURT EN BANC.'




                         'The Honorable Michael A. Cherry, Justice, and the Honorable Ron
                  D. Parraguirre, Justice, voluntarily recused themselves from participation
                  in this matter.



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                                                   OPINION
                 By the Court, DOUGLAS, J.:
                             In this opinion, we address whether the district court abused
                 its discretion by: (1) denying a motion for a new trial based on allegations
                 of attorney misconduct; (2) not granting sanctions under NRS 17.115 and
                 NRCP 68; and/or (3) refusing to consider apportioning sanctions. We
                 conclude that the district court did not abuse its discretion in denying
                 appellants'/cross-respondents' motion for a new trial, but did abuse its
                 discretion regarding the issuance and apportionment of sanctions. We
                 hold that: (1) the district court was statutorily required to issue sanctions
                 under NRS 17.115 and NRCP 68; (2) when a district court issues sanctions
                 against multiple offerees pursuant to NRS 17.115 and NRCP 68, it has
                 and must exercise its discretion to determine whether to apportion those
                 sanctions among the multiple offerees or to impose those sanctions with
                 joint and several liability; and (3) when sanctions are issued against
                 multiple homeowner offerees pursuant to NRS 17.115 and NRCP 68 in a
                 construction defect action, a district court abuses its discretion by
                 imposing those sanctions jointly and severally against the homeowners.
                 Accordingly, we affirm the district court's decision in part, reverse in part,
                 and remand the matter to the district court for further proceedings
                 consistent with this opinion.
                                   FACTS AND PROCEDURAL HISTORY
                             Appellants/cross-respondents, homeowners in the High Noon
                 at Boulder Ranch community (the homeowners), retained experts to
                 inspect their homes for construction defects. Based on their experts'
                 findings, the homeowners sent respondent/cross-appellant contractor D.R.
                 Horton, Inc., a written notice detailing alleged architectural, insulation,

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                waterproofing, and other defects. In response, D.R. Horton notified the
                homeowners of its intent to inspect the alleged defects to determine how to
                respond to the homeowners' notice. The homeowners then filed a
                complaint, seeking relief primarily under theories of negligence and
                breach of warranty.
                            After receiving the homeowners' complaint, D.R. Horton
                elected to repair the identified defects. Subsequently, the district court
                stayed proceedings on the homeowners' complaint to allow D.R. Horton to
                make repairs. After completing its work, D.R. Horton provided the
                homeowners with a formal statement of repairs. The district court then
                lifted the stay, and the homeowners filed an amended complaint. In
                response, D.R. Horton filed an answer and a third-party complaint against
                several subcontractors.
                            Before trial, D.R. Horton served individual offers of judgment
                on each of the homeowners based on the extent of their respective
                property's defects; 39 of the 40 homeowners rejected these offers and
                proceeded to trial.
                            During closing arguments, counsel for D.R. Horton and
                counsel for third-party defendant RCR Plumbing made multiple
                statements that the homeowners' counsel objected to as attorney
                misconduct. The district court sustained several of these objections
                without admonishing counsel or the jury. At the conclusion of the trial,
                the jury awarded verdicts for each homeowner, totaling $66,300 in
                damages. No individual homeowner's award exceeded his or her offer of
                judgment from D.R. Horton.
                            Following the jury's verdicts, the homeowners and D.R.
                Horton filed motions for costs and attorney fees. The district court

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                determined that D.R. Horton made valid offers of judgment and that no
                homeowner's award exceeded his or her respective offer. Accordingly, the
                district court awarded D.R. Horton post-offer costs, but declined to award
                it attorney fees. Despite awarding D.R. Horton post-offer costs, the
                district court denied both motions, stating that it was impossible to award
                apportioned costs and fees under the circumstances. The homeowners
                then filed a motion for a new trial, or, in the alternative, additur. D.R.
                Horton opposed the homeowners' motion and filed a countermotion for
                remittitur, requesting that the district court reduce the verdicts to zero.
                Again, the district court denied both motions. This appeal and cross-
                appeal followed.
                            In their appeal and cross-appeal, the homeowners and D.R.
                Horton assert a number of arguments. While we conclude that most of
                these arguments do not warrant specific discussion, 2 we take this
                opportunity to address the homeowners' argument that the district court
                abused its discretion in denying their motion for a new trial based on
                attorney misconduct and both parties' contentions that they were entitled
                to costs and attorney fees.

                      2In particular, we have considered the homeowners' arguments
                regarding alleged improper ex parte communications, reliance on facts not
                in evidence, introduction of excluded evidence, changes to the trial
                protocol, acceptance of late-deposited documents, the jury instructions, the
                motion to strike a defense expert's testimony, exclusion of certain
                evidence, and the denial of additur. With regard to each of these claims,
                we have determined that either the homeowners failed to preserve the
                argument or the argument lacks merit. We also conclude that by failing to
                make an offer of proof, D.R. Horton failed to preserve its argument that
                the district court abused its discretion in denying testimony from a
                defense witness.


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                                               DISCUSSION

                L The district court did not abuse its discretion in denying a new trial
                    for attorney misconduct
                             The homeowners argue that the district court should have
                granted their motion for a new trial because D.R. Horton's counsel
                repeatedly committed misconduct throughout the trial. Specifically, the
                homeowners claim that D.R. Horton's counsel violated RPC 3.4(e) and our
                decision in Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008), by urging the
                jurors to "send a message" because this case was driven by attorneys and
                experts, the homeowners were liars, and the trial was a waste of the jury's
                time. The homeowners also assert that, even if the specific instances of
                misconduct were not independently sufficient to warrant a new trial, the
                cumulative effect of D.R. Horton's counsel's misconduct required the
                district court to grant the homeowners' motion for a new trial. We
                disagree.
                             This court reviews a district court's decision to grant or deny a
                motion for a new trial for an abuse of discretion.     Lioce, 124 Nev. at 20,
                174 P.3d at 982. "Whether an attorney's comments are misconduct is a
                question of law, which we review de novo; however, we will give deference
                to the district court's factual findings and application of the standards to
                the facts." Id.
                             Under NRCP 59(a)(2), the district court may grant a new trial
                if the prevailing party committed misconduct that affected the aggrieved
                party's substantial rights. In Lioce, this court discussed the applicable
                legal standards for reviewing a district court's denial of a motion for a new
                trial based on attorney misconduct. See Lioce, 124 Nev. at 14-26, 174 P.3d
                at 978-86. Under Lioce, this court decides whether there was attorney

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                   misconduct, identifies the applicable legal standard for determining
                   whether a new trial was warranted, and assesses whether the district
                   court abused its discretion in applying that standard. See id. at 14-26, 174
                   P.3d at 978-86.
                               When an attorney commits misconduct, and an opposing party
                   objects, the district court should sustain the objection and admonish the
                   jury and counsel, respectively, by advising the jury about the impropriety
                   of counsel's conduct and reprimanding or cautioning counsel against such
                   misconduct. Id. at 17, 174 P.3d at 980; see also Black's Law Dictionary 55
                   (9th ed. 2009) (defining "admonition" as "[a]ny authoritative advice or
                   caution from the court to the jury regarding their duty as jurors or the
                   admissibility of evidence for consideration," or "[a] reprimand or
                   cautionary statement addressed to counsel by a judge"). In the event of a
                   proper objection and admonition, "a party moving for a new trial bears the
                   burden of demonstrating that the misconduct [was] so extreme that the
                   objection and admonishment could not remove the misconduct's effect."
                   Lioce, 124 Nev. at 17, 174 P.3d at 981. If the district court overrules the
                   objection, the party moving for a new trial must show that the district
                   court erred in its ruling and that "an admonition to the jury would likely
                   have affected the verdict in favor of the moving party." Id. at 18, 174 P.3d
                   at 981.
                               An attorney's failure to object constitutes waiver of an issue,
                   unless the failure to correct the misconduct would constitute plain error.
                   Id. at 19, 174 P.3d at 982. Establishing plain error requires a party to
                   show that "the attorney misconduct amounted to irreparable and
                   fundamental error," resulting "in a substantial impairment of justice or
                   denial of fundamental rights." Id. In other words, plain error exists only

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                "when it is plain and clear that no other reasonable explanation for the
                verdict exists." Ringle v. Bruton, 120 Nev. 82, 96, 86 P.3d 1032, 1041
                (2004).
                             Finally, if misconduct is persistent or repeated, the district
                court must take into account "that, by engaging in continued misconduct,
                the offending attorney has accepted the risk that the jury will be
                influenced by his misconduct." Lioce, 124 Nev. at 18-19, 174 P.3d at 981.
                As a result, the district court must acknowledge that although specific
                instances of misconduct alone might have been curable by objection and
                admonishment, the effect of persistent or repeated misconduct might be
                incurable. See id. at 19, 174 P.3d at 981.
                             The homeowners argue that D.R. Horton's counsel violated
                RPC 3.4(e) by pursuing the theme that the case was driven by the
                homeowners' lawyers and experts. Specifically, the homeowners contend
                that D.R. Horton's counsel instructed the jury to disregard the evidence,
                that the homeowners were liars, and that the alleged defects did not exist.
                D.R. Horton claims that it did not violate RPC 3.4(e) and that the
                homeowners are precluded from making this argument now because they
                failed to object on these grounds at trial.
                             RPC 3.4(e) prohibits attorneys from:
                             allud[ing] to any matter that the lawyer does not
                             reasonably believe is relevant or that will not be
                             supported by admissible evidence, assert[ind
                             personal knowledge of facts in issue except when
                             testifying as a witness, or statfing] a personal
                             opinion as to the justness of a cause, the
                             credibility of a witness, [or] the culpability of a
                             civil litigant ....



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                                       The homeowners objected to the following comment made by
                        third-party defendant RCR's counsel during closing arguments: 3
                                       There's a Special Interrogatory I'm going to ask
                                       you to find whether you still believe if there are
                                       any plumbing repairs out there. I don't believe
                                       there is. I think we repaired anything that was
                                       there.
                                       Applying Lioce's framework, we must first determine whether
                        RCR's counsel committed attorney misconduct. In this instance, our
                        review of the record indicates that RCR's counsel did not violate RPC
                        3.4(e) or commit any other attorney misconduct. Accordingly, this
                        statement provides no basis for a new trial.
                                       The homeowners also objected to the following statement by
                        D.R. Horton's counsel:
                                       What did every• homeowner say they wanted?
                                       They wanted a safe house; right? That's what
                                       they all wanted. They learned that from their
                                       expert that their house was somehow unsafe? No.
                                       None of them ever talked to their experts. They
                                       learned it from their attorneys. For what
                                       purpose? For the purpose of litigation. And now
                                       the homeowner is in the middle because Mr.
                                       Gunther is sitting here, and he's listening to our
                                       side of the story, and he's saying, "Oh, gosh. They
                                       tell me my house is unsafe."




                              3 D.R. Horton argues that because the jury was instructed to decide
                        the case only as between D.R. Horton and the homeowners, the argument
                        of RCR's counsel is irrelevant in this appeal. We disagree. Regardless of
                        the limitations imposed on the scope of the jury's decision, RCR's counsel
                        made its remarks before the jury deliberated about the issues in this
                        appeal, and thus, counsel's comments could have influenced that verdict.


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                             The basis for the homeowners' objection was that D.R.
                 Horton's attorney improperly claimed to know what Mr. Gunther was
                 thinking. Applying the Lioce framework again, we first determine
                 whether D.R. Horton's counsel's statement was attorney misconduct. D.R.
                 Horton's counsel's statement violates RPC 3.4(e) by implicitly asserting a
                 personal opinion as to the justness of the homeowners' case based on the
                 statement's implication that the homeowners' attorneys unilaterally
                 initiated this action and fabricated its foundations.
                             Next, we must identify the applicable legal standard. As the
                 homeowners note, after sustaining their objection to this statement, the
                 district court failed to admonish counsel or the jury.      Lioce does not
                 directly address this situation. Accordingly, we now clarify that when a
                 district court sustains an objection to attorney misconduct but fails to
                 admonish counsel or the jury, if objecting counsel does not promptly
                 request the omitted admonishments, he or she must, in seeking a new
                 trial based on the improper conduct, demonstrate that the misconduct was
                 so extreme that the objection and sustainment could not have removed the
                 misconduct's effect.   Cf. Lioce, 124 Nev. at 17, 174 P.3d at 981. If the
                 district court fails to admonish counsel or the jury after objecting counsel
                 requests such admonishment promptly following his or her sustained
                 objection, a party moving for a new trial must only demonstrate that "an
                 admonition to the jury would likely have affected the verdict in favor of
                 the moving party." Cf id. at 18, 174 P.3d at 981.
                             Here, the homeowners must show that D.R. Horton's counsel's
                 misconduct was so extreme that its effect could not have been removed by
                 their objection and the district court's sustainment because their counsel
                 failed to request admonishments where they were mistakenly omitted by

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                  the district court. We conclude that the homeowners have not shown that
                  the misconduct's effect could not have been removed by the objection and
                  its sustainment. Accordingly, applying the last step in the Lioce analysis,
                  we determine that the district court did not abuse its discretion in denying
                  the homeowners' motion for a new trial.
                               The homeowners separately claim that D.R. Horton's counsel
                  committed attorney misconduct by encouraging jury nullification. An
                  attorney's arguments in favor of jury nullification constitute misconduct in
                  part because they violate RPC 3.4(e). Jury nullification is defined as
                               [a] jury's knowing and deliberate rejection of the
                               evidence or refusal to apply the law either because
                               the jury wants to send a message about some
                               social issue that is larger than the case itself or
                               because the result dictated by law is contrary to
                               the jury's sense of justice, morality, or fairness.
                  Lioce, 124 Nev. at 20, 174 P.3d at 982-83 (alteration in original) (quoting
                  Black's Law Dictionary 875 (8th ed. 2004)). An attorney making an
                  attempt at jury nullification violates RPC 3.4(e) in two ways: (1) the
                  attorney is either alluding to a matter that is irrelevant given the law or
                  unsupported by admissible evidence given the facts; and (2) whether
                  explicit or implicit, the attorney is inherently asserting his or her opinion
                  as to the justness of a cause.
                               In support of their jury nullification argument, the
                  homeowners rely in part on D.R. Holton's counsel's statement during
                  closing arguments that, "fiff you want to send a message to the
                  homeowners that their houses are safe, tell them, 'I sat for 12 weeks; I
                  listened to everything; your house is safe." In Lioce, this court concluded
                  that the attorney made a jury nullification argument when he encouraged
                  the jury to find in the defendants' favor regardless of the evidence to send
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                the message that lawsuits like the case at issue are a waste of taxpayers'
                money and jurors' time. Lioce, 124 Nev. at 21, 174 P.3d at 983. In other
                words, the attorney encouraged the jurors to make their decision based on
                something other than the law and the evidence.        See id.   In contrast to
                Lioce, D.R. Horton's counsel did not urge the jury to reject the evidence or
                the law when making this statement. Instead, D.R. Horton's counsel
                asked the jury to find that D.R. Horton was not liable based on the
                evidence presented. Thus, regardless of D.R. Horton's counsel's use of the
                phrase "send a message," counsel was not improperly encouraging jury
                nullification, and this argument does not provide a basis for reversing the
                district court's decision denying the homeowners' motion for a new trial.
                            Finally, the homeowners argue that the cumulative effect of
                D.R. Horton's counsel's misconduct justifies a new trial. To obtain a new
                trial based on the cumulative effect of attorney misconduct, the appealing
                party "must demonstrate that no other reasonable explanation for the
                verdict exists." Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 365, 212
                P.3d 1068, 1079 (2009). In evaluating whether this has been
                demonstrated, we "look at the scope, nature, and quantity of misconduct
                as indicators of the verdict's reliability."   Id.   Grounds for reversing a
                district court's decision denying a new trial under the plain error standard
                will generally require multiple severe instances of attorney misconduct as
                determined by their context. See, e.g., Lioce, 124 Nev. at 8, 24, 174 P.3d at
                974-75, 985 (upholding a district court's granting of a motion for a new
                trial where the attorney's misconduct included multiple improper
                attempts at jury nullification and repeated egregious and inappropriate




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                  comments during closing arguments). 4 Considering the homeowners'
                  arguments as a whole, we conclude that they fail to meet Nevada's
                  standards for reversing a district court's denial of a motion for a new trial.
                  Accordingly, we affirm the district court's denial of the homeowners'
                  motion for a new trial.
                  IL The district court abused its discretion in refusing to issue sanctions
                      pursuant to NRS 17.115 and NRCP 68 and in failing to apportion
                      those sanctions among the homeowners
                               In its order on the issue of costs and attorney fees, the district
                  court determined that D.R. Horton's individual offers of judgment were
                  valid pursuant to NRS 17.115 and NRCP 68. The district court also found
                  that the valid offers of judgment were rejected by the 39 homeowners
                  involved and that none of them obtained a jury verdict higher than his or
                  her respective offer of judgment. Based on these findings, the district
                  court awarded D.R. Horton post-offer costs.
                               Immediately following this award, the district court stated
                  that neither the homeowners nor D.R. Horton did or could allocate any
                  costs or attorney fees, seemingly disposing of the issues once and for all.
                  After making this statement, the district court revived the issue of D.R.
                  Horton's attorney fees by conducting a Beattie analysis and concluding




                        4See also Fineman v. Armstrong World Indus., Inc., 774 F. Supp.
                  266, 269-76 (D. N.J. 1991) affd, 980 F.2d 171 (3d Cir. 1992) (granting a
                  new trial where attorney misconduct included (1) pervasive and flagrant
                  appeals to speculation, sympathy, outrage, and revenge from the jury; (2)
                  repeated expressions of opinion as to the merits, credibility of witnesses,
                  and culpability of defendant; and (3) repeated disparaging attacks on
                  opposing counsel)



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                that D.R. Horton was not entitled to attorney fees under NRS 17.115 and
                NRCP 68.     Beattie v. Thomas, 99 Nev. 579, 588-89, 668 P.2d 268, 274
                (1983). The district court also determined that D.R. Horton was not
                entitled to attorney fees pursuant to NRS 18.010. Finally, for the second
                time, the district court stated that neither the homeowners nor D.R.
                Horton allocated or could allocate costs or attorney fees among the
                homeowners in this case, making it impossible for it to award any costs or
                attorney fees.
                            The homeowners claim that D.R. Horton's individual offers of
                judgment were invalid, preventing D.R. Horton from receiving costs under
                NRS 17.115 and NRCP 68. Conversely, the homeowners contend that
                they are entitled to costs pursuant to NRS 40.650. In response, D.R.
                Horton argues that it is entitled to costs and attorney fees under NRCP 68
                and NRS 17.115 because the offers of judgment were valid, and that for
                the same reason, the homeowners are precluded from recovering either
                costs or attorney fees after they rejected the valid offers. Additionally,
                D.R. Horton asserts that the homeowners cannot recover costs because
                they failed to file the required memorandum of costs under NRS 18.110(1).
                D.R. Horton alternatively maintains that it is the prevailing party entitled
                to costs and attorney fees under NRS 18.020. The homeowners reply that
                D.R. Horton was not a prevailing party and therefore cannot recover
                under NRS 18.020.
                      A.   Sanctions
                            This court generally reviews a district court's decision
                awarding or denying costs or attorney fees for an abuse of discretion.   See
                Miller v. Jones, 114 Nev. 1291, 1300, 970 P.2d 571, 577 (1998). "[Where a
                trial court exercises its discretion in clear disregard of the guiding legal

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                principles," it "may constitute an abuse of discretion." Bergmann v. Boyce,
                109 Nev. 670, 674, 856 P.2d 560, 563 (1993).
                             Because we determine that the district court's order was
                unclear and erroneous, we offer the following guidance. In a construction
                defect action, the claimant generally may only recover attorney fees and
                specified costs that are proximately caused by a construction defect.     See
                NRS 40.655(1). Alternatively, "the court may make an allowance of
                [attorney] fees to a prevailing party." NRS 18.010(2). And "[c]osts must
                be allowed. . . to the prevailing party against any adverse party against
                whom judgment is rendered . . . Mu an action for the recovery of money or
                damages, where the plaintiff seeks to recover more than $2,500." NRS
                18.020(3).
                             However, "NRS 40.655 does not preclude application of the
                penalty provisions of NRCP 68 and NRS 17.115."            Albois v. Horizon
                Communities, Inc.,    122 Nev. 409, 418, 132 P.3d 1022, 1028 (2006).
                Similarly, NRS 18.010 and 18.020 do not preclude the application of the
                penalty provisions of NRCP 68 and NRS 17.115. See id.         Thus, when an
                offeree rejects a valid offer and does not obtain a more favorable judgment,
                NRS 17.115(4)(a) and (b) and NRCP 68(0(1) preclude the offeree from
                recovering any costs, attorney fees, or interest for the period after the
                service of the offer and before the judgment. In such a situation, the
                district court must order the offeree to pay the post-offer costs incurred by
                the party who made the offer. 5 See NRS 17.115(4)(c); NRCP 68(0(2).


                      5AlthoughNRCP 68(0(2) requires an award of "post-offer costs" and
                NRS 17.115(4)(c) requires an award of "taxable costs," we follow our
                precedent and harmonize these seemingly conflicting provisions to mean
                                                                  continued on next page . . .
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                 Additionally, the district court may order the offeree to pay the offeror's
                 reasonable attorney fees pursuant to NRS 17.115(4)(d)(3) and I\TRCP
                 68(f)(2).
                             In determining whether to award attorney fees in the offer of
                 judgment context, a district court must consider and weigh the following
                 factors:
                             (1) whether the plaintiffs claim was brought in
                             good faith; (2) whether the defendanifs] 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. In considering the fourth
                 Beattie factor, whether the fees sought by the offeror are reasonable and
                 justified in amount, the district court must consider the Brunzell factors.
                 See Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 864-65, 124
                 P.3d 530, 548-49(2005). The Brunzell factors include:
                             (1) the qualities of the advocate: his ability, his
                             training, education, experience, professional
                             standing and skill; (2) the character of the work to
                             be done: its difficulty, its intricacy, its importance,


                   . continued

                 "post-offer costs." See McCrary v. Bianco, 122 Nev. 102, 106-07, 131 P.3d
                 573, 576 (2006) (stating that regarding NRCP 68 and NRS 17.115, "the
                 court construes the rules in harmony with the statute"); In re Resort at
                 Summerlin Litig., 122 Nev. 177, 185, 127 P.3d 1076, 1081 (2006)
                 (determining that "where a general statutory provision and a specific one
                 cover the same subject matter, the specific provision controls").



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                            time and skill required, the responsibility imposed
                            and the prominence and character of the parties
                            where they affect the importance of the litigation;
                            (3) the work actually performed by the lawyer: the
                            skill, time and attention given to the work; (4) the
                            result: whether the attorney was successful and
                            what benefits were derived.
                Brunzell v. Golden Gate Nat'l Bank, 85 Nev. 345, 349, 455 P.2d 31, 33
                (1969).
                            As a threshold matter for our analysis, we determine that the
                district court properly concluded that D.R. Horton's offers of judgment
                were valid. Although the homeowners sought costs and attorney fees
                under NRS 18.010, 18.020, and 40.655, each of them failed to obtain a
                judgment greater than his or her rejected valid offer of judgment.
                Accordingly, NRS 17.115 and NRCP 68 preclude those homeowners from
                recovering any costs or attorney fees, and we affirm the district court's
                denial of costs or attorney fees to the homeowners. 6 See Sengel v. IGT, 116
                Nev. 565, 570, 2 P.3d 258, 261 (2000) (affirming a district court's correct
                result reached for the wrong reason).
                            We now consider the district court's order as it relates to D.R.
                Horton's motion for costs and attorney fees. At the outset, we note that
                the district court was required to award D.R. Horton post-offer costs under
                NRS 17.115(4)(c) and NRCP 68(f)(2). Additionally, in considering whether
                to award D.R. Horton reasonable attorney fees pursuant to NRS



                      6 Even
                          if the homeowners were not precluded from recovering costs
                by NRS 17.115 and NRCP 68, they would be for their failure to file a
                memorandum of costs pursuant to NRS 18.110(1).



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                17.115(4)(d)(3) and NRCP 68(1)(2), the district court properly identified the
                Beanie factors. The district court's analysis did not, however, consider the
                required Brunzell factors in its Beattie analysis. To the extent that the
                district court failed to apply the full, applicable legal analysis, it abused its
                discretion. See Beattie, 99 Nev. at 589, 668 P.2d at 274. On remand, the
                district court must award D.R. Horton post-offer costs and reconsider its
                attorney fees analysis as to D.R. Horton by properly applying the Beattie
                and Brunzell factors. 7 Additionally, the district court must follow our
                guidance below in determining whether to apportion issued sanctions
                among the homeowners or impose the sanctions with joint and several
                liability.
                       B. Apportionment of sanctions issued under NRS 17.115 and
                           NRCP 68
                               Although a district court's decision regarding an award of
                attorney fees is generally reviewed for an abuse of discretion, where, as
                here, the decision implicates a question of law, the appropriate standard of
                review is de novo. See Thomas v. City of N. Las Vegas,         122 Nev. 82, 90,
                127 P.3d 1057, 1063 (2006). Whether a district court can apportion
                sanctions awarded under NRS 17.115 and NRCP 68 is a question of law
                that this court has not addressed. In considering this question, we
                preliminarily acknowledge that a district court's discretion includes "Mlle


                       7 The district court correctly ruled that D.R. Horton had no right to
                attorney fees under NRS 18.010 because D.R. Horton failed to obtain a
                monetary judgment. Smith v. Crown Fin. Servs. of Am., 111 Nev. 277,
                285, 890 P.2d 769, 774 (1995) (holding "that the recovery of a money
                judgment is a prerequisite to an award of attorney fees pursuant to NRS
                 18.010(2)(a)").



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                     power . . . to determine questions to which no strict rule of law is
                     applicable but which, from their nature, and the circumstances of the case,
                     are controlled by the personal judgment of the court."           Goodman v.
                     Goodman, 68 Nev. 484, 487, 236 P.2d 305, 306 (1951) (internal quotation
                     omitted). With this in mind, we hold that when a district court issues
                     sanctions against multiple offerees pursuant to NRS 17.115 and NRCP 68,
                     it has and must exercise its discretion to determine whether to apportion
                     those sanctions among the multiple offerees or impose those sanctions
                     with joint and several liability.
                                  The Arizona Court of Appeals recently addressed the issue of
                     whether a trial court was required to consider apportioning sanctions
                     among multiple offerees in the offer of judgment context.          See Flood
                     Control Dist. of Maricopa Cnty. v. Paloma Inv. Ltd. P'ship, 279 P.3d 1191,
                     1209-10 (Ariz. Ct. App. 2012). In Maricopa County, the offeror made offers
                     of judgment to two offerees in the amount of 46 percent and 8 percent of
                     its total offer to a larger group of offerees.   Id. at 1209. Because the two
                     offerees failed to obtain a judgment greater than their respective offers,
                     Arizona's offer of judgment rule permitted sanctions. Id. at 1208-10. The
                     two offerees argued that their share of any sanction should be proportional
                     to their percentage of the allocated offer of judgment.     Id. at 1209. The
                     trial court disagreed. Id. In reviewing the issue, the appellate court in
                     Maricopa County recognized that Arizona's offer of judgment rule did not
                     require or prohibit the apportionment of sanctions between offerees.      See
                     Id. Based on this finding, the court reversed and remanded the case so
                     that the trial court could exercise its discretion to determine whether
                     sanctions should be apportioned based on the individual allocated offers of
                     judgment. Id. at 1210.

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                                   We note that similar to Arizona's rule, our offer of judgment
                     rule does not speak to apportionment based on allocated offers of judgment
                     among multiple offerees. See NRS 17.115; NR,CP 68. Like the Maricopa
                     County court, we conclude that the decision of whether to apportion
                     sanctions under NRS 17.115 and NRCP 68 among multiple offerees or to
                     impose joint and several liability falls within the purview of the district
                     court's discretion based on the circumstances before it. In exercising this
                     discretion, the district court should consider factors, including but not
                     limited to: (1) whether different offerees raise distinct issues justifying
                     segregating the costs and attorney fees associated with the litigation; and
                     (2) in the case of a prevailing party, whether the party entitled to costs
                     and/or attorney fees would otherwise not likely be able to recover a
                     substantial portion of his or her judgment.         Concord Boat Corp. v.
                     Brunswick Corp., 309 F.3d 494, 497 (8th Cir. 2002). 8 We emphasize that
                     these two factors are not exhaustive and that the district court can and
                     should consider other relevant factors where appropriate. Having
                     established that the district court must exercise its discretion to determine
                     whether to apportion sanctions or impose them jointly and severally, we




                           8 Seealso White v. Sundstrand Corp., 256 F.3d 580, 585-86 (7th Cir.
                     2001) (holding eight class representatives jointly and severally liable for
                     costs where the other class members were not given notice and
                     opportunity to opt out of the case); Walker v. U.S. Dep't of Housing and
                     Urban Dev., 99 F.3d 761 (5th Cir. 1996) (upholding a district court's
                     imposition of joint and several liability of attorney fees where the parties
                     had a joint legal team and shared witnesses).



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                 conclude that the district court abused its discretion by failing to make
                 such a determination in this case.
                             Additionally, we take this opportunity to hold that when
                 sanctions are issued against multiple homeowner offerees pursuant to
                 NRS 17.115 and NRCP 68 in a construction defect action, a district court
                 abuses its discretion by imposing those sanctions jointly and severally
                 against the homeowners. When an individual brings a construction defect
                 action, litigation costs will often exceed the recoverable amount for the
                 defects in that individual's home. While NRS 40.655 permits an award of
                 reasonable attorney fees proximately caused by a construction defect, it
                 does not guarantee it.   See NRS 40.655(1)(a). Thus, absent egregiously
                 costly defects, a homeowner will be chilled from bringing an individual
                 lawsuit to exercise his or her right to be compensated for less costly
                 defects. Based on this kind of cost-benefit analysis, construction defect
                 actions tend to be brought in groups by multiple homeowners from the
                 same community.
                             One of the primary purposes of our construction defect
                 statutory scheme is "to protect the rights of homebuyers by providing a
                 process to hold contractors liable for defective original construction or
                 alterations." Westpark Owners' Ass'n v. Eighth Judicial Dist. Court, 123
                 Nev. 349, 359, 167 P.3d 421, 428 (2007). Our analysis has shown that
                 homeowners already face much uncertainty in bringing individual
                 construction defect actions, placing great importance on preserving the
                 reasonableness of bringing a group lawsuit for construction defects. By




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                requiring the apportionment of sanctions under NRS 17.115 and NRCP 68
                in this context, we are seeking to ensure that group homeowner
                construction defect actions will not be chilled by the threat of crippling
                joint and several sanctions. We also note that apportionment is logical
                and feasible in these circumstances because each home has distinctive
                defects and juries issue individual homeowner verdicts. Accordingly, we
                determine that on remand the district court must apportion sanctions
                issued against the homeowners based on their individual offers of
                judgment.
                               Based on the foregoing analysis, we affirm the district court's
                order denying the homeowners' motion for a new trial, but we reverse the
                district court's order regarding the issuance of sanctions and remand the
                matter to the district court for further proceedings consistent with this
                opinion.


                                                                                     J.




                                                   C.J.
                Gibbons A
                           rietA               ,   J.
                Pickering

                                                   J.
                Hai-des:0—

                             )11
                Saitta


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