                                                 131 Nev., Advance Opinion       51
                       IN THE SUPREME COURT OF THE STATE OF NEVADA


                ROBERT LOGAN AND JAMIE LOGAN,                      No. 63980
                HUSBAND AND WIFE,
                Appellants,
                vs.                                                      FILED
                CALVIN J. ABE, AN INDIVIDUAL;
                RON MARTINSON, AN INDIVIDUAL;
                                                                          JUN 0 4 2015
                AND ABE PACIFIC HEIGHTS                                         AN
                                                                    mataVemEticx5b
                PROPERTIES, LLC, A FOREIGN                          BY
                                                                         CRiF DEP Vi   V-CCEIIK
                LIMITED LIABILITY COMPANY,
                Respondents.



                           Appeal from a post-judgment award of attorney fees and costs
                in a personal injury action. Second Judicial District Court, Washoe
                County; David A. Hardy, Judge.
                           Affirmed.


                Wm. Patterson Cashill, Ltd., and Wm. Patterson Cashill, Reno; Bradley,
                Drendel & Jeanney and William C. Jeanney, Reno,
                for Appellants.

                LeVangie Law Group and Jeffery C. Long, Jason A. Rose, and Michael J.
                LeVangie, Carson City,
                for Respondents.




                BEFORE SAITTA, GIBBONS and PICKERING, JJ.




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                                                     OPINION

                   By the Court, SAITTA, J.:
                               A party who makes an unimproved-upon offer of judgment—
                   an offer that is more favorable to the opposing party than the judgment
                   ultimately rendered by the district court—is entitled to recover costs and
                   reasonable attorney fees incurred after making the offer of judgment.
                   NRS 17.115(4); NRCP 68(0(2). At issue here is (1) whether a party can
                   recover these expenses if they were paid by a third party on the party's
                   behalf, (2) whether the district court abused its discretion in the present
                   case by awarding attorney fees, and (3) whether the district court abused
                   its discretion in the present case by awarding costs in excess of $1,500 for
                   the fees of an expert witness that did not testify and was not deposed.
                               Because a party incurs an expense at the time the expense is
                   paid or the party "become [si legally obligated to pay it," United Services
                   Auto Ass'n v. Schlang,      111 Nev. 486, 490,1 894 P.2d 967, 969 (1995)
                   (internal quotations omitted), the party need not actually pay the expense
                   to have incurred it. Therefore, we hold that a party can incur an expense
                   even if a third party pays the expense on the party's behalf, as long as the
                   party would otherwise be legally obligated to pay the expense. Thus, costs
                   and reasonable attorney fees that a third party paid on behalf of a litigant
                   can be recovered under NRS 17.115(4) and NRCP 68(0(2). In addition, we
                   conclude that in the present case the district court did not abuse its
                   discretion in awarding expert witness fees in excess of $1,500 for an expert
                   who did not testify at trial and was not deposed.
                                  FACTUAL AND PROCEDURAL HISTORY
                               Appellants Robert and Jamie Logan sued respondents Calvin
                   J. Abe, Abe Pacific Heights Properties, LLC (Abe Properties), and Ron
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                Martinson for personal injuries that Robert Logan suffered when he was
                shot by an employee of a hotel. The Logans alleged that Abe Properties
                owned the hotel, Abe operated the hotel, and Martinson was the hotel's
                general manager.
                             Before trial, Abe, Abe Properties, and Martinson made an offer
                of judgment to the Logans in which they offered to pay $55,000 to settle
                the Logans' claims. The record does not show that the Logans accepted
                this offer, and the case proceeded to a jury trial.
                             After the jury returned a verdict in their favor, Abe, Abe
                Properties, and Martinson made a motion for attorney fees and costs,
                which had been paid by their insurer. The Logans opposed the motion.
                Reasoning that Abe, Abe Properties, and Martinson were entitled to
                attorney fees and costs under MRS 17.115 and NRCP 68 because the
                Logans failed to improve upon their offer of judgment, the district court
                awarded $71,907.50 in attorney fees and $24,812.60 in costs, including
                $7,290 for the fees of an expert witness who did not testify. The Logans
                now appeal the award of attorney fees and costs.
                                                DISCUSSION
                Abe, Abe Properties, and Martinson have standing to seek attorney fees
                            As a preliminary matter, the Logans argue that Abe, Abe
                Properties, and Martinson lack standing because they did not actually pay
                the attorney fees and costs.
                            "Standing is a question of law reviewed de novo." Arguello v.
                Sunset Station, Inc., 127 Nev., Adv. Op. 29,252 P.3d 206, 208 (2011).
                Under Nevada law, "a party generally has standing to assert only its own
                rights and cannot raise the claims of a third party not before the court."
                Beazer Homes Holding Corp. v. Eighth Judicial Dist. Court, 128 Nev.,
                Adv. Op. 66, 291 P.3d 128 133 (2012). Here, Abe, Abe Properties, and
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                Martinson made claims for attorney fees and costs on their own behalf and
                not on behalf of another entity. Therefore, they have standing to pursue
                their claim for attorney fees and costs. See id.
                The district court correctly found that Abe, Abe Properties, and Martinson
                are eligible to recover attorney fees and costs
                            The Logans argue that NRS 17.115 and NRCP 68 only allow
                recovery of attorney fees and costs that a party actually pays or has a legal
                duty to pay. Thus, they contend that Abe, Abe Properties, and Martinson
                are not eligible to recover attorney fees and costs in this case because their
                insurer paid these expenses.
                            "When a party's eligibility for a fee award is a matter of
                statutory interpretation" or the interpretation of court rules, we review
                the district court's decision de novo. In re Estate & Living Trust of Miller,
                125 Nev. 550, 553, 216 P.3d 239, 241 (2009); see Casey v. Wells Fargo
                Bank N.A., 128 Nev., Adv. Op. 64, 290 P.3d 265, 267 (2012) (reviewing
                "legal conclusions regarding court rules" de novo).
                            We interpret clear and unambiguous statutes based on their
                plain meaning. Cromer v. Wilson, 126 Nev. 106, 109, 225 P.3d 788, 790
                (2010). "In the absence of an ambiguity, we do not resort to other sources,
                such as legislative history, in ascertaining that statute's meaning."
                Williams v. United Parcel Servs., 129 Nev., Adv. Op. 41, 302 P.3d 1144,
                1147 (2013). Because "the rules of statutory interpretation apply to
                Nevada's Rules of Civil Procedure," Webb v. Clark County School District,
                125 Nev. 611, 618, 218 P.3d 1239, 1244 (2009), we interpret unambiguous
                statutes, including rules of civil procedure, by their plain meaning       See
                Cromer, 126 Nev. at 109, 225 P.3d at 790.




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                         NRS 17.115 and NRCP 68 allow a party who made an unimproved-
                         upon offer of judgment to recover certain attorney fees and costs
                                In relevant part, NRS 17.115(4) states:
                                Except as otherwise provided in this section, if a
                                party who rejects an offer of judgment fails to
                                obtain a more favorable judgment, the court:
                                        •••

                                       (c) Shall order the party to pay the taxable
                                costs incurred by the party who made the offer; and
                                     (d) May order the party to pay to the party
                                who made the offer any or all of the following:
                                         (1) A reasonable sum to cover any costs
                                incurred by the party who made the offer for each
                                expert witness whose services were reasonably
                                necessary to prepare for and conduct the trial of the
                                case.


                                          (3) Reasonable attorney's fees incurred by
                                the party who made the offer for the period from
                                the date of service of the offer to the date of entry of
                                the judgment. If the attorney of the party who
                                made the offer is collecting a contingent fee, the
                                amount of any attorney's fees awarded to the
                                party pursuant to this subparagraph must be
                                deducted from that contingent fee.
                  (Emphases added.) In relevant part, NRCP 68(0(2) provides that if an
                  offeree fails to improve upon a rejected offer of judgment, "the offeree shall
                  pay the offeror's post-offer costs, applicable interest on the judgment from
                  the time of the offer to the time of entry of the judgment and reasonable
                  attorney's fees, if any be allowed, actually incurred by the offeror from the
                  time of the offer. . . ."   (Emphases added.) Thus, both the statute and the
                  rule authorize a party who makes an offer of judgment that is not
                  improved upon to recover the reasonable attorney fees and costs incurred

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                after the offer of judgment was made. NRS 17.115(4)(c)-(d); NRCP
                68(0(2).
                      An expense is incurred if a party has an obligation to pay it without
                      regard to whether the party actually pays the expense
                            "An expense can only be 'incurred' when one has paid it or
                become legally obligated to pay it."   United Servs. Auto Ass'n v. Schlang,
                111 Nev. 486, 490, 894 P.2d 967, 969 (1995) (internal quotations omitted).
                While we have not directly addressed the issue of whether a party incurs
                an expense that is ultimately satisfied by another party, other
                jurisdictions have persuasively held that an expense can be incurred even
                if it is ultimately satisfied by someone other than the party. A North
                Carolina appellate court has held that a party incurs an expense if it
                would have been liable to pay the expense regardless of whether a third
                party had paid it. Hoffman v. Oakley, 647 S.E.2d 117, 124 (N.C. Ct. App.
                2007) (interpreting "incur" in the context of an insurer's payment of an
                insured's litigation expenses). Similarly, a Colorado appellate court has
                held that expenses are incurred when paid on a party's behalf by its
                insurer because "Wile arrangement between [a] defendant and [its]
                liability insurer for the disbursement and repayment of those costs is of no
                consequence." Mullins v. Kessler, 83 P.3d 1203, 1204 (Colo. App. 2003); cf.
                Manor Healthcare Corp. v. Lomelo, 929 F.2d 633, 639 (11th Cir. 1991)
                (holding that a prevailing party may recover litigation costs without
                regard to whether a third party advanced the funds for the costs); Aspen v.
                Bayless, 564 So. 2d 1081, 1083 (Fla. 1990) (same). We therefore extend
                Schlang and hold that a party can incur an expense that was paid on its
                behalf if the party would have been liable for the expense regardless of the
                third party's payment.


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                         NRS 17.115 and NRCP 68 allow a party to recover costs and
                         reasonable attorney fees that a third party paid on its behalf
                               NRS 17.115 and NRCP 68 each authorize a party to recover
                   the reasonable attorney fees and costs that it incurs after it makes an offer
                   of judgment that is not improved upon. NRS 17.115(4)(c)-(d); NRCP
                   68(0(2). Because the statutes are limited to the costs incurred rather than
                   the party who pays them, we therefore hold that NRS 17.115 and NRCP
                   68 allow a party to recover qualifying attorney fees and costs that were
                   paid on its behalf by a third party. Thus, Abe, Abe Properties, and
                   Martinson were eligible to recover the post-offer costs and reasonable
                   attorney fees that their insurer paid on their behalf.
                   The district court did not abuse its discretion by awarding attorney fees to
                   Abe, Abe Properties, and Martinson
                               The Logans argue that Abe, Abe Properties, and Martinson
                   are not entitled to recover attorney fees because they failed to demonstrate
                   that the award satisfied the factors set out in Brunzell v. Golden Gate
                   National Bank, 85 Nev. 345, 349, 455 P.2d 31, 33 (1969)."
                               We review an award of attorney fees for an abuse of discretion,
                   Albios v. Horizon Communities, Inc., 122 Nev. 409, 417, 132 P.3d 1022,
                   1027-28 (2006), and will affirm an award that is supported by substantial
                   evidence. See Uniroyal Goodrich Tire Co. v. Mercer, 111 Nev. 318, 324,
                   890 P.2d 785, 789 (1995), superseded by statute on other grounds as
                   discussed in RTTC Commc'ns, LLC v. Saratoga Flier, Inc., 121 Nev. 34,
                   41-42 & n.20, 110 P.3d 24, 29 & n.20 (2005).

                         'The Logans also contend that Abe, Abe Properties, and Martinson
                   submitted a deficient attorney's declaration with their motion for attorney
                   fees. This argument is without merit because the attorney's declaration
                   complied with NRCP 54(d)(2)(B) and NRS 53.045.

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                             "In determining the amount of fees to award, the [district]
                court is not limited to one specific approach; its analysis may begin with
                any method rationally designed to calculate a reasonable amount, so long
                as the requested amount is reviewed in light of the" Brunzell factors.
                Haley u. Eighth Judicial Dist. Court, 128 Nev., Adv. Op. 16, 273 P.3d 855,
                860 (2012) (internal quotations omitted). While it is preferable for a
                district court to expressly analyze each factor relating to an award of
                attorney fees, express findings on each factor are not necessary for a
                district court to properly exercise its discretion. Certified Fire Prot., Inc. v.
                Precision Constr., Inc., 128 Nev., Adv. Op. 35, 283 P.3d 250, 258 (2012).
                Instead, the district court need only demonstrate that it considered the
                required factors, and the award must be supported by substantial
                evidence. See Uniroyal Goodrich Tire, 111 Nev. at 324, 890 P.2d at 789.
                             Here, the district court stated in its order that it "analyzed the
                fees pursuant to Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983), and
                Brunzell" and that "[t]he individual elements of these cases support the
                discretionary award of fees and costs." Since the district court
                demonstrated that it considered the Brunzell factors, its award of attorney
                fees will be upheld if it is supported by substantial evidence. See Uniroyal
                Goodrich Tire, 111 Nev. at 324, 890 P.2d at 789.
                            In the instant case, the district court issued an order awarding
                $71,907.50 in attorney fees and commenting favorably on the quality of
                the work performed by Abe, Abe Properties, and Martinson's attorneys.
                Although the district court's order states that it considered the attorneys'
                invoices, they are not included in the appellate record. Because these
                invoices were omitted from the appellate record, we must presume that
                they support the district court's award of attorney fees under the Brunzell

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                factors. See Cuzze v. Univ. & Cmty. Coll. Sys. of Nev.,   123 Nev. 598, 603,
                172 P.3d 131, 135 (2007). We therefore conclude that the district court did
                not abuse its discretion in awarding attorney fees.
                The district court did not abuse its discretion in awarding costs to Abe, Abe
                Properties, and Martinson
                               The Logans argue that the district court abused its discretion
                by violating NRS 18.005(5) in awarding more than $1,500 in costs to Abe,
                Abe Properties, and Martinson for the fees of one of their experts. As part
                of this argument, they contend that the district court's award of expert
                witness expenses was unwarranted because the expert witness was not
                deposed and did not testify. 2 On appeal, the Logans do not dispute the
                reasonableness or necessity of the fees charged by Abe, Abe Properties,
                and Martinson's expert witness.
                              We review an award of costs for an abuse of discretion.    Viii.
                Builders 96, L.P. v. U.S. Labs., Inc., 121 Nev. 261, 276, 112 P.3d 1082,
                1092 (2005).
                               NRS 18.005(5) allows the recovery of "Measonable fees of not
                more than five expert witnesses in an amount of not more than $1,500 for
                each witness, unless the court allows a larger fee after determining that
                the circumstances surrounding the expert's testimony were of such
                necessity as to require the larger fee." (Emphasis added.)          See also


                      2 The Logans also argue that Abe, Abe Properties, and Martinson's
                inconsistent cost calculations voided the award of costs. However, this
                argument is without merit because it does not demonstrate that the
                district court's award of costs was an abuse of discretion. See Schwartz v.
                Estate of Greenspun, 110 Nev. 1042, 1051, 881 P.2d 638, 644 (1994) ("We
                will not reverse an order or judgment unless error is affirmatively
                shown.").

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                Gilman v. State Bd. of Veterinary Med. Exam'rs, 120 Nev. 263, 272-73, 89
                P.3d 1000, 1006-07 (2004) (observing that a district court has discretion to
                award more than $1,500 for an expert's witness fees), disapproved of on
                other grounds by Nassiri v. Chiropractic Physicians' Bd., 130 Nev., Adv.
                Op. 27, 327 P.3d 487, 491 (2014). Thus, NRS 18.005(5) allows the district
                court to award more than $1,500 for an expert's witness fees if the larger
                fee was necessary. Furthermore, NRS 17.115(4)(d)(1) authorizes the
                district court to award "[a] reasonable sum to cover any costs incurred by
                the party who made the offer [of judgment] for each expert witness whose
                services were reasonably necessary to prepare for and conduct the trial of
                the case." (Emphasis added.)
                            While NRS 18.005 does not require an expert witness to
                testify in order to recover fees less than $1,500, see NRS 18.005(5), the
                award of the expert's fees in this case was not an abuse of discretion.    See
                Vill. Builders 96, L.P., 121 Nev. at 276, 112 P.3d at 1092. The district
                court found that Abe, Abe Properties, and Martinson did not call their
                expert witness, who was retained to rebut the Logans' expert witness,
                because "[the Logans] chose on the eve of trial (or during trial) to not call"
                their expert. Thus, the "circumstances surrounding the expert's
                testimony," or in this case, the lack thereof, were of the Logans' creation
                and "were of such necessity as to require the larger fee." NRS 18.005(5).
                In addition, the district court's finding regarding the absence of Abe, Abe
                Properties, and Martinson's expert's testimony shows that the award of
                this expert's fees was also supported by NRS 17.115(4)(d)(1). Therefore,
                the district court did not abuse its discretion in awarding costs for expert
                witness fees in excess of $1,500 to Abe, Abe Properties, and Martinson.



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                                                  CONCLUSION
                                A party is entitled to recover certain costs and reasonable
                   attorney fees that it incurs after making an unimproved-upon offer of
                   judgment pursuant to NRS 17.115 and NRCP 68. Because a party incurs
                   an expense when it becomes legally obligated to pay the cost, it may
                   recover qualifying expenses pursuant to NRS 17.115 and NRCP 68 that
                   are paid by a third party on the party's behalf. Here, the district court did
                   not abuse its discretion in awarding attorney fees or costs to Abe, Abe
                   Properties, and Martinson. Therefore, we affirm the district court's award
                   of attorney fees and costs.




                                                        Saitta


                   We concur:


                                                   J.
                   Gibbons


                                                   J.




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