Docket No. 63942 

In their summary judgment motions, the parties 

acknowledged that no genuine issues of material fact existed, that the sole 

legal issue for the district court to determine was whether Rosemere 

Estates Property Owners Association needed unanimous consent from its 

members to amend its CC&Rs, and that NRS 116.2117 did not dictate the 

outcome of this legal issue. Based on this common ground, the district 

court concluded that unanimous consent was required because, under 

common-law principles, the original CC&Rs were reciprocal servitudes 

that could not be amended absent unanimous consent from the affected 

property owners. 

We have considered the arguments in Rosemere's opening 

brief and conclude that they do not call into question the basis for the 

district court's summary judgment. Nor are we persuaded that 

Rosemere's arguments otherwise warrant reversal of the summary 

judgment. In particular, we are not persuaded by Rosemere's argument 

regarding Section 37 of 1999 Senate Bill 451 because Rosemere has not 

identified any provision in the original CC&Rs that did not conform to 

NRS Chapter 116 and that would have required amendment.' As for 

Rosemere's argument that the Lytles failed to include a sworn statement 

in their complaint, this court has never held that NRS 38.330(5)'s swornstatement requirement is jurisdictional. Accordingly, we affirm the 

district court's July 30, 2013, summary judgment in Docket No. 63942. 2 

'Nor has Rosemere explained how its 2007 amendments complied 

with Section 37's October 2000 deadline for making such amendments. 

2We have considered Rosemere's remaining arguments and conclude 

that they either lack merit, have no bearing on the legal issue presented to 

the district court, or both. 

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Docket No. 65294 

The Lytles challenge the district court's (1) order denying their 

request for monetary damages and (2) order partially granting Rosemere's 

motion to retax costs. 

Monetary damages 

The district court denied the Lytles' request for monetary 

damages based on the conclusion that monetary damages are not 

recoverable in a declaratory relief action. On appeal, the Lytles contend 

that this conclusion was erroneous, as NRS 30.100 expressly authorizes 

district courts to award monetary damages in declaratory relief actions. 

We agree. 3 See Fred Ahlert Music Corp. u. Warner/Chappell Music, Inc., 

155 F.3d 17, 25 (2d Cir. 1998) (recognizing that district courts have 

authority under NRS 30.100's federal counterpart to award monetary 

damages as "further relief'). Accordingly, we vacate the district court's 

March 11, 2014, order and remand for further proceedings consistent with 

this order. 4 

3Rosemere contends that the Lytles did not rely on NRS 30.100 in 

district court and should be prohibited from doing so for the first time on 

appeal. Cf. Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 

983 (1981) ("A point not urged in trial court. . . is deemed to have been 

waived and will not be considered on appeal."). Because the district court 

sua sponte denied the Lytles' request for damages based on an erroneous 

legal conclusion, Old Aztec's waiver rule is inapplicable. 

4Rosemere contends that the district court's order should be affirmed 

on the alternative ground that the Lytles failed to provide admissible 

evidence to support their requested monetary damages. Because the 

record on appeal is unclear in this respect, we decline to do so. See Zugel 

v. Miller, 99 Nev. 100, 101, 659 P.2d 296, 297 (1983) ("This court is not a 

fact-finding tribunal. . . ."). 

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Costs 

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The Lytles contend that the district court abused its discretion 

in partially granting Rosemere's motion to retax costs. Cadle Co. v. Woods 

& Erickson, LLP, 131 Nev., Adv. Op. 15, 345 P.3d 1049, 1054 (2015) 

(recognizing that district courts have wide discretion in determining 

whether to award costs). In particular, the Lytles contend that they 

provided sufficient documentation to demonstrate that they reasonably, 

necessarily, and actually incurred costs relating to (1) photocopies and 

telecopies, and (2) filing fees and e-filing charges. We disagree with the 

Lytles' contention with respect to the first category, see id., but agree with 

the Lytles' contention with respect to the second category, particularly in 

light of Rosemere's failure to specifically address that issue. See Ozawa v. 

Vision Airlines, Inc., 125 Nev. 556, 563, 216 P.3d 788, 793 (2009) (treating 

the failure to respond to an argument as a confession of error). 

Accordingly, we reverse the district court's February 13, 2014, order to the 

extent that it denied the Lytles' request for costs relating to filing fees and 

e-filing charges. All other aspects of that order are affirmed. 

Docket No. 65721 

The parties dispute whether the Lytles timely filed their 

motion for attorney fees. We agree with the Lytles that their motion was 

filed within 20 days from the notice of entry of the final judgment, which 

rendered their motion timely. See Barbara Ann Hollier Trust v. Shack, 

131 Nev., Adv. Op. 59, P.3d , (2015); see also Miltimore Sales, 

Inc. v. Int'l Rectifier, Inc., 412 F.3d 685, 688 (6th Cir. 2005); Weyant v. 

Okst, 198 F.3d 311, 314 (2d Cir. 1999). 

The parties next dispute whether a statute, rule, or 

contractual provision authorized the Lytles to recover attorney fees. Both 

parties agree, however, that NRS 116.4117 authorizes attorney fees if the 

4 

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prevailing party suffers "actual damages." NRS 116.4117(1), (6). In light 

of our determination in Docket No. 65294 that the Lytles may be entitled 

to monetary damages, cf. Davis v. Beling, 128 Nev., Adv. Op. 28, 278 P.3d 

501, 512 (2012) (equating "actual damages" with "compensatory 

damages"), the district court's denial of attorney fees may have been 

improper.° Accordingly, we vacate the district court's May 29, 2014, order 

denying attorney fees and remand for further proceedings consistent with 

this order. 

It is so ORDERED. 

Saitta 

Gibboris 

Pdebt (iv J. 

Pickering 

cc: Hon. Michelle Leavitt, District Judge 

Sterling Law, LLC 

Gibbs Giden Locher Turner Senet & Wittbrodt LLP 

Leach Johnson Song & Gruchow 

The Williamson Law Office, PLLC 

Eighth District Court Clerk 

°In light of our determination in this respect, we decline to consider 

the parties' arguments regarding whether the original CC&Rs or the 

amended CC&Rs authorized attorney fees. We likewise decline to 

consider the parties' arguments regarding whether the Lytles' requested 

fees were reasonable. 

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DocketNunlIF - 65970 

I I II I I 11111111 

Document Vt. r- 201 

II II 21 0I 111 

Document NH r" Her - 31751 

I 111 MI III III 
BY 

No. 65970 

FILED 

OCT 1 9 2015 

TRACE K. UNDEMAN 

CLERK OF.ALJPREME COURT 

r771 

DEPUT9I-C4-LAEHI-rlY 

MARION COLLINS, 

Appellant/Cross-Respondent, 

vs. 

OCEAN WEST NEVADA CORP., 

Respondent/Cross-Appellant. 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

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ORDER AFFIRMING IN PART, 

REVERSING IN PART AND REMANDING 

This is an appeal and cross-appeal from a district court 

judgment in a breach of contract action. Eighth Judicial District Court, 

Clark County; Stefany Miley, Judge. 

The parties entered into a contract for respondent to make 

improvements to appellant's home to make it handicap accessible. The 

improvements would be paid for through a grant appellant received from 

the Department of Veteran Affairs (VA). Respondent substantially 

completed the improvements, but then appellant denied respondent access 

to the home to finish the work. Both parties sued and the matter went to 

arbitration where respondent was awarded $16,893.87. Appellant filed a 

request for a trial de novo and after a short trial, a judgment was entered 

wherein respondent received an additional $1,500 and appellant received 

$1,500. The district court also awarded respondent its costs but denied 

respondent's request for attorney fees. This appeal and cross-appeal 

followed. 

As an initial matter, appellant argues that the district court 

lacked subject matter jurisdiction because respondent failed to exhaust its 

administrative remedies that were available under the escrow agreement. 

Because respondent's action is based on the building contract, not the 

escrow agreement, and exhaustion of administrative remedies was not 

(0) 19(17A 

i,5 -3115 
statutorily mandated, the district court had subject matter jurisdiction.' 

See Eluska v. Andrus, 587 F.2d 996, 999 (9th Cir. 1978) (explaining that 

when exhaustion is statutorily mandated, the exhaustion requirement is 

jurisdictional but when it is not, the court has discretion to dismiss the 

action). Similarly, because the VA was not a party to the building contract 

that was the basis for respondent's breach of contract action and the VA 

was merely the escrowee of appellant's grant funds, appellant's argument 

that the VA was a necessary party is without merit. See NRCP 19(a) 

(defining necessary parties). 

Further, we conclude that the district court did not err in 

awarding respondent damages for appellant's breach of the building 

contract because respondent was properly licensed to complete the work, 

appellant failed to pay respondent through the funds supplied by his VA 

grant or otherwise, and the timeframe for completing the project was 

extended. 2 Whitemaine v. Aniskovich, 124 Nev. 302, 308, 183 P.3d 137, 

141 (2008) (providing that this court reviews contract interpretation de 

novo and the district court's findings of facts for• substantial evidence). 

Also, the district court did not abuse its discretion in awarding respondent 

its costs as the prevailing party because the district court's order indicates 

'We note that nothing in the record indicates that appellant 

presented this argument to the district court and requested dismissal. 

2In regard to appellant's argument that the district court should 

have compelled arbitration between respondent and its subcontractor, who 

is not a party on appeal, because appellant was not a party to the 

arbitration agreement between respondent and the subcontractor, 

appellant did not have standing to compel arbitration between the two 

parties. See generally Truck Ins. Exch. v. Palmer J. Swanson, Inc., 124 

Nev. 629, 633-34, 189 P.3d 656, 659(2008) (explaining that if one does not 

have an agreement to arbitrate with a party, then one cannot force that 

party to arbitrate). 

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Pickering 

that the $1,500 award to respondent was in addition to the $16,893.87 

that respondent had already received from the arbitrator. Parodi v. 

Budetti, 115 Nev. 236, 240, 984 P.2d 172, 174 (1999) (explaining that this 

court reviews an award of costs and fees for an abuse of discretion). 

We conclude, however, that the district court abused its 

discretion in denying respondent's request for its attorney fees. Id. NAR 

20(B)(2)(a) provides that if a party requests a trial de novo after an 

arbitration award of less than $20,000 and does not reduce the judgment 

by at least twenty percent, the non-requesting party is entitled to its fees 

incurred in the trial de novo. Because appellant failed to reduce 

respondent's award by at least twenty percent, the district court should 

have awarded respondent its attorney fees incurred in the trial de novo. 

Therefore, while we affirm the district court's judgment and award of 

costs, we reverse the court's denial of respondent's request for attorney 

fees and remand this matter for proceedings consistent with this order. 

It is so ORDERED. 

Saitta 

Gibboris 

cc: Hon. Stefany Miley, District Judge 

Thomas J. Tanksley, Settlement Judge 

Michael R. Pontoni 

Jolley Urga Wirth Woodbury & Little 

Eighth District Court Clerk 

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