ORDER OF REVERSAL AND REMAND 

These are appeals and a cross-appeal from a final judgment in 

an action involving the sale of water rights and post-judgment orders 

awarding attorney fees and costs and denying NRCP 60(b) relief. First 

Judicial District Court, Carson City; James E. Wilson, Judge", and Robert 

E. Rose, Senior Judge. 

Respondents Jack White and Retireman LLC bought water 

rights from appellant Tim Eugene Bertagnolli. White needed the water 

rights for a planned residential housing development and Retireman 

needed water rights for a retail tire shop. Both White and Retireman 

allegedly relied on the advice of appellant Western Engineering & 

Surveying Services, who affirmed that Bertagnolli's water rights could be 

used for these purposes. However, when respondents tried to use their 

water rights, the State Engineer refused to approve the transfers based on 

language in Bertagnolli's original water permit indicating that his water 

rights were only temporary. White and Retireman filed a complaint 

against Bertagnolli and Western alleging numerous claims for relief. 

Bertagnolli sought indemnification from Western and vice versa. Four 

days into trial, Western settled with both respondents and the court 

approved the settlement. Bertagnolli made his first motion for mistrial at 

that time, which was denied. The jury subsequently found against 

Bertagnolli. 

This appeal involves a challenge to the district court's 

interlocutory decision granting an oral motion accepting a good faith 

'Judge Wilson presided over the hearing at which Bertagnolli 

alleges the errors occurred. 

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settlement proposal and a subsequent refusal by the district court to grant 

a motion for a mistrial. We review both challenges for an abuse of 

discretion. Doctors Co. v. Vincent, 120 Nev. 644, 652, 98 P.3d 681, 686-87 

(2004); Romo v. Keplinger, 115 Nev. 94, 96, 978 P.2d 964, 966 (1999). 

In analyzing whether a settlement was made in good faith, a 

district court should consider all relevant facts available to it, which 

includes evaluating the settlement amount, the financial condition of the 

settling defendants, and the "relative liability permutations of the 

particular contribution or indemnity action known to it, including the 

strengths and weaknesses of the contribution or indemnity claims." 

Doctors Co., 120 Nev. at 652, 98 P.3d at 686-87; see also Velsicol Chemical 

Corp. v. Davidson, 107 Nev. 356, 360, 811 P.2d 561, 563 (1991); In re 

MGM Grand Hotel Fire Litig., 570 F. Supp. 913, 927 (D. Nev. 1983). 

Having reviewed the parties' briefs, oral arguments, and the appellate 

record, we conclude that the district court abused its discretion in 

approving the settlement because it failed to consider the full 

ramifications of the indemnification and the financial positions of the 

parties. Specifically, in deciding that the Western settlement was in good 

faith, the district court's order notes only that it considered "the apparent 

value of the settlement, Western's insurance limits, and the lack of acts 

which would injure Bertagnolli." This portion of the district court's order 

was wholly insufficient, as it failed to provide analysis concerning the 

financial condition of the settling parties and indemnification, both 

significant factors under the circumstances. The district court further 

abused its discretion because, at the time the motion was made, the 

financial terms of the settlement were not concrete. While not required by 

statute, a settlement of this magnitude should have been set forth in a 

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written order detailing the district court's rationale for approving the 

settlement terms—a few pages of oral record is unsatisfactory. As a result 

of this abuse of discretion, the settlement cannot pass muster. 

Even if the settlement had been made in good faith, the 

district court also abused its discretion by refusing to grant Bertagnolli's 

first motion for mistrial because the timing of the settlement severely 

prejudiced Bertagnolli's ability to appropriately defend the action. The 

record reveals that but for Western's lack of due diligence in inspecting 

Bertagnolli's original permit, White and Retireman would not have 

purchased the water rights. If Western had knowledge of the Bertagnolli's 

temporary water rights, Western should have advised against the 

purchase. Thus, Western was an active participant and quite possibly 

primarily responsible for the wrongs that caused the sale of temporary 

water rights. See Doctors, 120 Nev. at 653, 98 P.3d at 687-88 ("`The right 

of indemnity rests upon a difference between the primary [active] and the 

secondary [passive] liability of two persons, each of whom is made 

responsible by the law to an injured party.") With Western out of the 

picture, liability was completely shifted to Bertagnolli and his trial 

strategy had to change midway through trial. Therefore, we are not 

convinced that Bertagnolli received a fair trial. A new trial, or even a 

newly seated jury, would have alleviated any prejudice caused by the 

settlement. 

We also note that the district court did not provide the jury 

with a special verdict form to assess the comparative fault of the 

codefendants. "The general verdict rule does not apply in a case that 

involves special findings that assign specific damages on specific theories 

of recovery." Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev. 1430, 

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1438, 148 P.3d 710, 716 (2006). A special verdict form should be used 

where there exists more than one theory of liability or defense. Id. Here, 

because Bertagnolli argued indemnification and comparative fault from 

the outset, a special verdict form is proper. Accordingly, we 

ORDER the judgment of the district court REVERSED AND 

REMAND this matter to the district court for further proceedings 

consistent with this order. 2 

( , J 

Hardesty 

Parraguirre 

cc: James E. Wilson, District Court Judge 

Robert E. Rose, Senior Judge 

William E. Nork, Settlement Judge 

J.M. Clouser & Associates, Ltd. 

Holland & Hart LLP/Reno 

Lemons, Grundy & Eisenberg 

Sullivan Law Offices 

Carson City Clerk 

2Because we are reversing and remanding for further proceedings, 

we need not address Bertagnolli's additional claims of error. 

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