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

                JUN LIU,                                               No. 61435
                Appellant,
                vs.
                CHRISTOPHER HOMES, LLC, A                                    FILED
                NEVADA LIMITED LIABILITY
                COMPANY; AND CHRISTOPHER                                         MAR 2 7 2014
                HOMES RIDGES, LLC, A NEVADA                                TRAC K. LINDEMAN
                                                                         CLE 0 SUP E E
                LIMITED LIABILITY COMPANY,                              BY
                                                                             C
                                                                                    Ad"    Oa
                                                                                           ER
                Respondents.


                            Appeal from a district court judgment in a real property
                action. Eighth Judicial District Court, Clark County; Susan Johnson,
                Judge.
                            Affirmed in part, reversed in part, and remanded.

                Pengilly Robbins Slater and James W. Pengilly and Craig D. Slater, Las
                Vegas,
                for Appellant.

                The Hayes Law Firm and Dale A. Hayes, Jr., Las Vegas,
                for Respondents.




                BEFORE GIBBONS, C.J., DOUGLAS and SAITTA, JJ.

                                                 OPINION

                By the Court, SAITTA, J.:
                            The court in Sandy Valley Associates v. Sky Ranch Estates
                Owners Association stated that when a defendant's breach of contract with
                a plaintiff causes the plaintiff to incur attorney fees in his or her defense
                in a legal dispute that is brought by another party, the plaintiff can
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                 recover from the defendant the attorney fees as damages that arose from
                 the breach of the contract. 117 Nev. 948, 957, 35 P.3d 964, 970 (2001).
                 The Sandy Valley court also stated, "Attorney fees may. . . be awarded as
                 damages in those cases in which a party incurred the fee . . . in clarifying
                 or removing a cloud upon the title to property." Id. The court in Horgan
                 v. Felton retreated from this latter statement about the recovery of
                 attorney fees in cloud-on-title cases, stating that "in cases concerning title
                 to real property, attorney fees are only allowable as special damages in
                 slander of title actions, not merely when a cloud on the title to real
                 property exists." 123 Nev. 577, 579, 170 P.3d 982, 983 (2007). It held that
                 slander of title was a prerequisite for a plaintiff to "recover as damages the
                 expense of legal proceedings necessary to remove a cloud on the plaintiffs
                 title." Id. at 584-85, 170 P.3d at 987.
                             Here the district court relied on Horgan in denying appellant
                 Jun Liu's specially pleaded request to recover attorney fees from
                 respondents Christopher Homes Ridges, LLC (CHR), and Christopher
                 Homes, LLC (CH), concluding that because the breach of contract related
                 to title to real property, and because Liu failed to allege and prove slander
                 of title, she could not recover the attorney fees that she sought as special
                 damages. We conclude that the district court erred in rejecting as a
                 matter of law Liu's claim for attorney fees as special damages, as Horgan
                 does not apply to preclude such recovery here. Although Horgan held that
                 slander of title must be pleaded as a prerequisite for a party to recover
                 attorney fees as damages in an action to clarify or remove a cloud on title
                 to real property, that opinion did not retreat from the portion of Sandy
                 Valley which held that a party, such as Liu, may recover attorney fees
                 incurred in defending against third-party litigation because of CHR's or
                 CH's breach of contract. Horgan, 123 Nev. at 583-86, 170 P.3d at 986-88.
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                       Accordingly, we reverse the district court's judgment to the extent that it
                   •   denied Liu's request for special damages and affirm all other aspects of the
                       district court's judgment. We remand this matter to the district court for
                       proceedings consistent with this opinion.
                                        FACTS AND PROCEDURAL HISTORY
                                   Liu's appeal only challenges the district court's legal
                       determinations regarding the recovery of attorney fees as special damages.
                       Thus, our discussion of the facts is based on the district court's findings of
                       fact, which Liu does not contest or seek to undo on appeal.
                                   CHR was the developer of a residential community that hired
                       CH as a general contractor for the construction of homes within its
                       community CH subcontracted with K&D Construction, LLC, for various
                       construction services. One of the homes upon which K&D performed its
                       services was Liu's. Liu had purchased the home from CHR pursuant to a
                       contract (the Agreement), wherein CHR agreed to convey good and
                       marketable title to Liu at the close of escrow. As K&D performed its
                       construction services at CHR's residential community, K&D was neither
                       timely nor fully paid. As a result, K&D recorded liens on various
                   properties within CHR's residential community, including Liu's property.
                                   In addition, K&D filed a civil action against CHR, CH, Liu,
                       and other homeowners. In its complaint, K&D sought to foreclose on its
                   liens on numerous properties, including Liu's property. Liu filed an
                       answer to K&D's complaint and a cross-claim against CHR and CH. She
                       asserted a breach of contract claim against CHR and CH, alleging that
                   they breached their duty under the Agreement to deliver good and
                   marketable title when they failed to pay the debts to K&D that resulted in
                   a lien on her property. Under this claim, Liu tried to recover from CHR
                   and CH the attorney fees and costs that she allegedly incurred in
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                defending herself against K&D's action. She also sought attorney fees
                that she incurred in prosecuting her claim for attorney fees.
                            K&D, CHR, and CH entered into a stipulated agreement that
                resolved the payments of the outstanding balances owed to R&D,
                dismissed K&D's claims against Liu, and resulted in the discharge and
                removal of K&D's liens. After the dismissal of K&D's claims, Liu's claims
                against CHR and CH remained, including the claim to recover attorney
                fees as damages that allegedly arose from the breach of the Agreement.
                            Before the district court, Liu contended that, pursuant to
                Sandy Valley, she could recover attorney fees as special damages that
                were caused by the breach of the Agreement by CH and CHR. The district
                court determined otherwise, concluding that CHR, not CH, possessed and
                breached a contractual duty to deliver good and marketable title to Liu
                when a lien was imposed on Liu's property because of unpaid debts to
                K&D. Relying on Horgan, the district court resolved that, as a matter of
                law, Liu could not recover attorney fees as special damages According to
                the district court's interpretation of Horgan, Liu was required to prove
                slander of title in order to recover attorney fees as special damages, which
                the district court found that she failed to do. As a result, Liu filed this
                appeal challenging the district court's determinations regarding the
                recovery of attorney fees as special damages.
                                                DISCUSSION
                            Liu argues that the district court erred in relying on Horgan
                for its conclusion that her failure to assert and prevail on a slander of title
                claim prevented her from recovering attorney fees as special damages in
                an action that related to the title to real property. She contends that
                Horgan does not bar a party from recovering attorney fees as special
                damages when the civil action incidentally pertains to title to real
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                  property. Liu reads Horgan to disallow attorney fees that stem from an
                  action in which a claimant tries to remove a cloud on title but fails to
                  prove slander of title. She emphasizes that she did not seek attorney fees
                  as special damages from an action to remove a cloud on title but rather as
                  special damages that resulted from CHR's breach of contract. Liu argues
                  that Sandy Valley permits the recovery of attorney fees as special
                  damages that arise from a breach of contract and thus her attorney fees
                  claim below was not barred as a matter of law.
                              CHR and CH respond that the district court did not err in
                  finding against Liu on her claim for recovery of attorney fees as special
                  damages. They read Horgan to provide that a party, such as Liu, who
                  fails to assert and prevail on a slander of title claim in an action relating
                  to the title to real property cannot recover attorney fees as special
                  damages.
                              These arguments indicate that there is confusion over (a)
                  Sandy Valley's and Horgan's effect on the law regarding the recovery of
                  attorney fees as special damages and (b) the extent to which Horgan
                  retreated from Sandy Valley's discussion about the grounds for recovering
                  attorney fees as special damages. We take this opportunity to clarify our
                  precedent. In so doing, because the arguments concern the district court's
                  application of caselaw to Liu's claims for attorney fees, we review these
                  legal issues de novo.' See Thomas v. City of N. Las Vegas, 122 Nev. 82, 90,



                        'In addition to the arguments above, CHR contends that the district
                  court rejected Liu's claim for attorney fees for reasons other than its
                  interpretation and application of caselaw, such as insufficient evidence to
                  support Liu's claim that the breach of the Agreement caused her to incur
                  attorney fees in defending herself against K&D's action. This contention
                                                                   continued on next page . . .
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                127 P.3d 1057, 1063 (2006) (providing that a denial of attorney fees is
                generally reviewed for abuse of discretion but that de novo review applies
                when an attorney fees matter concerns questions of law).
                Horgan's partial abrogation of Sandy Valley
                             Generally, attorney fees are not recoverable "absent authority
                under a statute, rule, or contract." Albios v. Horizon Communities, Inc.,
                122 Nev. 409, 417, 132 P.3d 1022, 1028 (2006). But, la] s an exception to
                the general rule," attorney fees may be awarded "as special damages in
                limited circumstances." Horgan, 123 Nev. at 583, 170 P.3d at 986.
                             The court in Sandy Valley made three significant statements
                about the grounds for recovering attorney fees as special damages. 117
                Nev. at 956-57, 35 P.3d at 969-70. First, the court stated that attorney
                fees may be recovered as special damages when they are pleaded as such
                pursuant to NRCP 9(g) and are a "natural and proximate consequence of
                the injurious conduct." Id. at 956-57, 35 P.3d at 969. Second, the court
                explained that
                             [alttorney fees may be an element of damage in
                             cases when a plaintiff becomes involved in a
                             third-party legal dispute as a result of a breach
                             of contract .. . [and] [t]he fees incurred in
                             defending. . . the third-party action could be
                             damages in the proceeding between the plaintiff
                             and the defendant [who breached the contract].
                Id. at 957, 35 P.3d at 970. Third, the Sandy Valley court stated the
                following about the recovery of attorney fees as special damages in actions


                . . . continued

                lacks merit because the district court rejected Liu's attorney fees claim
                solely as a matter of law.


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                concerning a cloud on title to real property: "[alttorney fees may. ... be
                awarded as damages in those cases in which a party incurred the
                fees . . . in clarifying or removing a cloud upon the title to property." Id.
                            The Horgan court revisited Sandy Valley in addressing a
                matter involving the recovery of attorney fees that were accumulated in
                seeking declaratory relief to remove a cloud on title to real property.
                Horgan, 123 Nev. at 579-80, 583-86, 170 P.3d at 983-84, 986-88. In
                clarifying Sandy Valley, the Horgan court retreated from the third
                statement above concerning the award of attorney fees in cloud-on-title
                actions. Horgan, 123 Nev. at 579, 588, 170 P.3d at 983, 988. In doing so,
                it did not retreat from the Sandy Valley court's position regarding the
                recovery of attorneyS fees as damages that are caused by injurious conduct
                or a breach of contract.      Id.    Disapproving of Sandy Valley's broad
                statement that "latttorney fees may. . . be awarded as damages in those
                cases in which a party incurred the fees . . . in clarifying or removing a
                cloud upon the title to property," the Horgan court stated that "in cases
                concerning title to real property, attorney fees are only allowable as special
                damages in slander of title actions, not merely when a cloud on the title to
                real property exists." Id. at 579, 583, 170 P.3d at 983, 986 (alterations in
                original) (second emphasis added) (quoting Sandy Valley, 117 Nev. at 957,
                35 P.3d at 970). When read in isolation, this statement conveys that in
                any action that merely relates to title, clarification of title, or removal of a
                cloud on title to real property, a party can recover attorney fees as special
                damages only if he or she asserts and prevails on a slander of title claim.
                See id. Thus, when read by itself, this statement appears to support the
                district court's determination that Liu could not recover attorney fees.
                            However, the meaning and effect of Horgan cannot be
                ascertained by reading one statement to the exclusion of the rest of the
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                 opinion. See Orr v. Allen, 248 U.S. 35, 36 (1918) (indicating that language
                 in an opinion must not to be taken out of context or segregated from the
                 remainder of the opinion); Mashpee Tribe v. New Seabury Corp., 592 F.2d
                 575, 585 (1st Cir. 1979) ("Different sections of an opinion should be read as
                 consistent with each other."). Rather, Horgan "must be read as a whole,
                 without particular portions read in isolation, [so as] to discern the
                 parameters of its holding." Fisher v. Big Y Foods, Inc., 3 A.3d 919, 926-27
                 (Conn. 2010).
                             The remainder of the Horgan court's opinion indicates that it
                 did not hold that a party in any matter that relates to title to real property
                 must prevail on a slander of title claim in order to recover attorney fees as
                 special damages. 123 Nev. at 583-86, 170 P.3d at 986-88. Rather, the
                 Horgan court contemplated a party's ability to recover attorney fees as
                 special damages that were incurred in a specific type of civil action that is
                 brought by that party: an action to clarify or remove a cloud on title. Id.
                             The Horgan court stated that a "plaintiff may recover as
                 damages the expense of legal proceedings necessary to remove a cloud on
                 the plaintiffs title" when he or she prevails on a slander of title claim. Id.
                 at 584-85, 170 P.3d at 987 (emphasis added). It stated that "attorney fees
                 are only available as special damages in slander of title actions and not
                 simply when a litigant seeks to remove a cloud upon title." Id. at 586, 170
                 P.3d at 988 (emphasis added). In asserting these conclusions, the Horgan
                 court primarily relied on authorities that permit the award of attorney
                 fees as special damages to parties who brought claims to clarify or remove
                 a cloud on title, accrued attorney fees in bringing those claims, and
                 prevailed on a slander of title claim. See id. at 584-86, 170 P.3d at 987-88
                 (citing: Wright v. Rogers, 342 P.2d 447, 449, 457 (Cal. Ct. App. 1959)
                 (providing that in an action to remove a cloud on title, the plaintiff may
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                    recover attorney fees as special damages if he or she prevails on a slander
                    of title claim); Price v. Tyler, 890 So. 2d 246, 248-49, 251, 253 (Fla. 2004)
                    (explaining that parties cannot recover attorney fees as special damages
                    that were accrued in declaratory relief and quiet title actions absent a
                    slander of title); Rayl v. Shull Enters., Inc., 700 P.2d 567, 573 (Idaho 1984)
                    (concluding that a plaintiff who sought to remove a cloud on his title was
                    entitled to attorney fees as special damages that arose from the slander of
                    title); Paulson v. Kustom Enters., Inc., 483 P.2d 708, 715-16 (Mont. 1971)
                    (remanding a matter to allow parties to recover attorney fees accrued in
                    removing a cloud on title resulting from slander); Den-Gar Enters. v.
                    Romero, 611 P.2d 1119, 1121, 1124 (N.M. Ct. App. 1980) (providing that
                    plaintiffs who sought to remove a cloud on title through a quiet title action
                    could recover attorney fees under a slander of title claim); Peckham v.
                    Hirschfeld, 570 A.2d 663, 667-70 (R.I. 1990) (providing the same); Dowse v.
                    Doris Trust Co., 208 P.2d 956, 958-59 (Utah 1949) (concluding that a
                    plaintiff was entitled to special damages, including attorney fees, in an
                    action to remove a cloud on his title because the defendant slandered it);
                    and Rorvig v. Douglas, 873 P.2d 492, 494, 497-98 (Wash. 1994) (providing
                    the same)).
                                  Thus, the Horgan court's holding that one must prevail on a
                    slander of title claim to recover attorney fees as special damages is one
                    that applies to the recovery of attorney fees that are accrued from
                    pursuing an action to clarify or remove a cloud on title.      Generally, an
                    action to clarify or remove a cloud on title is either an action in equity or
                    an action for declaratory relief   See MacDonald v. Krause, 77 Nev. 312,
                    317-18, 362 P.2d 724, 727 (1961) (identifying actions to quiet title and to
                    remove clouds on title as actions in equity); Kress v. Corey, 65 Nev. 1, 25-
                    26, 189 P.2d 352, 363-64 (1948) (stating that a cloud on title may be
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                    removed by a declaratory judgment). Hence, when discussing the recovery
                    of attorney fees as damages that arose from actions to clarify or remove a
                    cloud on title, the Horgan court was not concluding that a slander of title
                    claim is a prerequisite to recovering attorney fees as special damages in
                    all civil actions that relate to title to real property.   See 123 Nev. at 579,
                    583-86, 170 P.3d at 983, 986-88. Rather, as revealed by its language and
                    the authorities it relied on, the Horgan court held that slander of title is a
                    prerequisite to a party's recovery of attorney fees that were amassed in
                    asserting claims to clarify or remove a cloud on title, such as declaratory
                    or equitable relief claims. Id.
                                 In explaining its analysis and conclusions, the Horgan court
                    stated that when a plaintiff incurs attorney fees as a result of a
                    defendant's intentional effort to cloud title, the plaintiff deserves the fees
                    because he or she had no choice but to litigate. Id. at 585-86, 170 P.3d at
                    987-88. Otherwise, absent slander of title, the plaintiff shoulders the debt
                    for the attorney fees that he or she risked accruing when deciding to
                    clarify or remove a cloud on title by suing the defendant. See id.
                                 Here, Liu was not a plaintiff who incurred attorney fees by
                    asserting equitable or declaratory relief claims to clarify or remove a cloud
                    on title. Rather, she pleaded to recover attorney fees as special damages
                    that she allegedly incurred defending against K&D's civil action as a
                    result of CHR's breach of the Agreement. Thus, the attorney fees that Liu
                    incurred in her defense against K&D's action and her claim for attorney
                    fees were not within the purview of Horgan's requirement that a party
                    who brought an action to clarify or remove a cloud on title must prove
                    slander of title in order to recover the attorney fees that he or she incurred
                    in the action. See Horgan, 123 Nev. at 583-86, 170 P.3d at 986-88.

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                 The portion of Sandy Valley that Horgan did not overturn
                             When revisiting and abrogating Sandy Valley, the Horgan
                 court only overturned the analysis and conclusion in Sandy Valley that
                 concerned the recovery of attorney fees that are accumulated in actions to
                 clarify or remove a cloud on title to real property.   Horgan, 123 Nev. at
                 579, 583-86, 170 P.3d at 983, 986-88. The court did not retreat from
                 Sandy Valley's conclusion that a party to a contract may recover, as
                 special damages, the attorney fees that arise from another party's breach
                 of the contract when the breach causes the former party to incur attorney
                 fees in a legal dispute brought by a third party. See Horgan, 123 Nev. at
                 579, 583-86, 170 P.3d at 983, 986-88 (omitting from its discussion Sandy
                 Valley's language that concerns the recovery of attorney fees as special
                 damages that arise from a breach of contract); Sandy Valley, 117 Nev. at
                 957, 35 P.3d at 970. Thus, this portion of Sandy Valley was not undercut
                 by Horgan. In unity with the various jurisdictions that have held the
                 same, we maintain that a party to a contract may recover from a
                 breaching party the attorney fees that arise from the breach that caused
                 the former party to accrue attorney fees in defending himself or herself
                 against a third party's legal action.     See, e.g., Masonic Temple Ass'n of
                 Crawfordsville v. Ind. Farmers Mitt. Ins. Co., 837 N.E.2d 1032, 1039 (Ind.
                 Ct. App. 2005) (providing that when the defendant's breach of contract
                 caused the plaintiff to engage in litigation with another party, the
                 attorney fees from that litigation "may be recovered as an element
                 of ... damages from [the] defendant's breach of contract"); Pac. Coast Title
                 Ins. Co. v. Hartford Accident & Indem. Co., 325 P.2d 906, 907-08 (Utah
                 1958) (providing the same); Fid. Nat'l Title Ins. Co. of N.Y. v. S. Heritage
                 Title Ins. Agency, Inc., 512 S.E.2d 553, 558 (Va. 1999) (concluding that
                 attorney fees incurred in litigation caused by a party's breach of contract
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                        can be recovered as special damages); Kremers-Urban Co. v. Am. Emp'rs
                        Ins, Co., 351 N.W.2d 156, 168 (Wis. 1984) (recognizing that attorney fees
                        and expenses incurred in third-party litigation are recoverable "when they
                        are the natural and proximate result of the breach of contract or other
                        wrongful act" that caused the plaintiff to be involved in litigation with
                        other parties).
                                     In light of the above, Sandy Valley permits, and Horgan does
                        not bar, Liu's claim to recover attorney fees as special damages that were
                        purportedly sustained in defending herself against K&D's suit, which was
                        allegedly caused by CHR's breach of the Agreement. Accordingly, we hold
                        that the district court erred in relying on Horgan to conclude that Liu
                        cannot recover attorney fees as special damages. 2
                        The district court must revisit Liu's claim for attorney fees
                                     Determining whether a party's breach of contract caused
                        another party to incur attorney fees in defending himself or herself from a
                        third party's complaint involves factual inquiries. See Frantz v. Johnson,


                              2It appears that Liu also relies on Sandy Valley for the contention
                        that she can recover attorney fees and costs that she incurred when
                        prosecuting her claim against CHR to recover attorney fees as special
                        damages—in addition to the attorney fees that she incurred when
                        defending herself against K&D's action. Sandy Valley does not support
                        this contention. See 117 Nev. at 957, 35 P.3d at 970. It only provides for
                        the recovery of attorney fees as special damages that are incurred in
                        defending against third-party litigation that is caused by a breach of
                        contract. Id. Because Liu has not provided any other salient authority in
                        support of her argument, we do not address the recovery of attorney fees
                        and costs that are incurred when prosecuting a claim for attorney fees as
                        special damages. Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330
                        n.38, 130 P.3d 1280, 1288 n.38 (2006) (providing that this court need not
                        address an argument that is not cogently made).

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                  116 Nev. 455, 468, 999 P.2d 351, 359 (2000) (indicating that causation is
                  an issue of fact). In our appellate capacity, we do not resolve matters of
                  fact for the first time on appeal. See Round Hill Gen. Improvement Dist. v.
                  Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981) (noting that "an
                  appellate court is not an appropriate forum in which to resolve disputed
                  questions of fact").
                                'When the district court determined that Horgan barred Liu's
                  claim to recover attorney fees as special damages, it also found that CHR
                  breached its contract with Liu by leaving its debts to K&D unpaid. But,
                  because it erroneously reasoned that Horgan disposed of Liu's attorney
                  fees claim as a matter of law, the district court did not resolve whether the
                  evidence before it proved that CHR's breach of the Agreement caused Liu
                  to accumulate the attorney fees in defending her interests against K&D's
                  suit. We do not resolve this factual issue that the district court did not
                  reach, as doing so would require us to inappropriately weigh the evidence
                  and resolve questions of fact for the first time on appeal. It is up to the
                  district court on remand to resolve these questions.
                                                 CONCLUSION
                                In light of our analysis and determinations above, we reverse
                  the district court's findings of fact, conclusions of law, and judgment on
                  Liu's claim for the recovery of attorney fees as special damages that
                  allegedly arose from CHR's breach of the Agreements All other aspects of


                        3 The  dissent disagrees with our conclusions, relying on a
                  concurrence in Horgan which noted that there are claims, other than
                  slander of title, under which a party can recover attorney fees as special
                  damages, such as "actions for malicious prosecution, abuse of process,
                  wrongful attachment, trademark infringement, false imprisonment or
                  arrest." 123 Nev. at 587, 170 P.3d at 988-89 (Maupin, J., concurring). The
                                                                  continued on next page . . .
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                     the district court's judgment are affirmed. We remand this matter for
                     further proceedings that are consistent with this opinion.




                                                           Saitta


                     I concur:


                                                  ,   J.




                     . . . continued

                     dissent appears to conclude that because the Horgan concurrence did not
                     include a breach of contract claim within its list, it is persuasive authority
                     that attorney fees that arise from a breach of contract cannot be recovered
                     as special damages. We disagree. We do not read the Horgan concurrence
                     as conveying a comprehensive and exclusive list of claims on which a party
                     can recover attorney fees as special damages. Rather, the Horgan
                     concurrence stressed that the Horgan opinion did not preclude the
                     recovery of attorney fees as special damages in circumstances other than
                     those presented in that appeal. Id. In so doing, it offered examples of
                     claims under which one may recover attorney fees. Id. Thus, like the
                     Horgan concurrence, we conclude that Horgan does not bar the recovery of
                     attorney fees in circumstances that are not addressed in Horgan, such as
                     the circumstances that are present in this appeal.


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                 GIBBONS, C.J., dissenting:
                             As the majority notes, we concluded in Horgan v. Felton, 123
                 Nev. 577, 579, 170 P.3d 982, 983 (2007), that "in cases concerning title to
                 real property, attorney fees are only allowable as special damages in
                 slander of title Actions, not merely when a cloud on the title to real
                 property exists." In Horgan, the concurrence noted that there are other
                 types of cases that allow attorney fees as damages, such as "actions for
                 malicious prosecution, abuse of process, wrongful attachment, trademark
                 infringement, false imprisonment or arrest." Id. at 587, 170 P.3d at 989
                 (Maupin, J., concurring). Breach of contract is not one of the exceptions
                 specified in Horgan and should fall into the same category as actions to
                 quiet title. This would further address our concern in Horgan that the
                 scope of real property cases where attorney fees are available as special
                 damages was "inadvertently expanded."     Id. at 586, 170 P.3d at 988. For
                 this reason, I conclude that the district court• correctly interpreted the
                 holding of Horgan, and I would affirm the district court's denial of
                 attorney fees.


                                                                                    C.J.




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