IN THE SUPREME COURT OF THE STATE OF NEVADA 

DONALD E. BENTON, AN 

INDIVIDUAL, 

Appellant, 

vs. 

JOHN SHELDON, AN INDIVIDUAL, 

Resnondent. 

No. 65296 

FILED 

MAR 1 8 2016 

CLERK K UNDEMAN 

CLERK OF SUPREME COURT 

S • V 

DEPUTY CLERK 

ORDER OF AFFIRMANCE 

This is an appeal from a district court judgment on a jury 

verdict in a contract and tort action and from post-judgment orders 

awarding attorney fees and denying a new trial. Eighth Judicial District 

Court, Clark County; Stefany Miley, Judge. 

Having considered the parties'arguments and the record, we 

conclude that substantial evidence supported the jury 's verdict with 

respect to appellant 's claims for monies due and owing, breach of 

agreement, fraud and deceit, and exploitation of an elder. See Allstate Ins. 

Co. v. Miller, 125 Nev. 300, 308, 212 P.3d 318, 324 (2009). In particular, 

but among other reasons, it was reasonable for the jury to conclude from 

the evidence presented that appellant intended for the payments totaling 

$12,000 to be gifts to respondent 's daughter. See Mason-McDuffie Real 

Estate, Inc. v. Villa Fiore Dev., LLC, 130 Nev., Adv. Op. 83, 335 P.3d 211, 

214 (2014) (indicating that substantial evidence is "that which a 

reasonable mind might accept as adequate to support a conclusion " 

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(internal quotation omitted)) 1 ; Edmonds v. Perry, 62 Nev. 41, 61, 140 P.2d 

566, 576 (1943) (observing that donative intent may be established "from 

the facts and circumstance surrounding the transaction"). 

Appellant next contends that a new trial is warranted because 

(1) he was not given an opportunity to review the verdict form, (2) the 

verdict form was materially inadequate, and (3) the verdict form contained 

the watermark of respondent's counsel. Appellant's first basis is belied by 

the record, and we are not persuaded by appellant's explanations as to 

how the second and third bases affected his substantial rights. NRCP 

59(a) (recognizing that a new trial may be warranted only when a 

purported impropriety during the first trial has "materially affect[ed] the 

substantial rights of [the] aggrieved party"). Accordingly, we conclude 

that the district court was within its discretion in denying appellant's 

motion for a new trial. Edwards Indus., Inc. v. DTE/BTE, Inc., 112 Nev. 

1025, 1036, 923 P.2d 569, 576 (1996). 

Appellant lastly contends that the district court's February 4, 

2014, order awarding attorney fees must be vacated because that order 

does not contain findings of fact. Having considered the parties' motion 

practice and the district court's oral findings at the January 7, 2014, 

hearing, we conclude that the district court was within its discretion in 

awarding attorney fees under NRS 17.115 and NRCP 68. See Aspen Fin. 

'This conclusion would hold true even under the heightened 

standard of proof contained in the jury instructions. See Gilman v. Nev. 

State Bd. of Veterinary Med. Exam'rs, 120 Nev. 263, 274-75, 89 P.3d 1000, 

1008 (2004) (describing the standard of review that this court employs 

when an issue must be established by clear and convincing evidence), 

disapproved on other grounds by Nassiri v. Chiropractic Physicians' Bd., 

130 Nev., Adv. Op. 27, 327 P.3d 487 (2014). 

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Pickering 

J. 

Servs. v. Eighth Judicial Dist. Court, 128 Nev., Adv. Op. 57, 289 P.3d 201, 

206 n.1 (2012); Chaves v. Sievers, 118 Nev. 288, 296, 43 P.3d 1022, 1027 

(2002); Wynn v. Smith, 117 Nev. 6, 13, 16 P.3d 424, 428-29 (2001). 

Accordingly, we 

ORDER the judgment of the district court AFFIRMED. 2 

Hardesty 

Saitta 

cc: Hon. Stefany Miley, District Judge 

Carolyn Worrell, Settlement Judge 

Marquis Aurbach Coifing 

Sylvester & Polednak, Ltd. 

Eighth District Court Clerk 

2Although respondent requests that this matter be remanded to the 

district court so that the district court can award appellate attorney fees, 

we deny that request as unnecessary. Specifically, upon issuance of the 

remittitur, jurisdiction over the underlying case automatically returns to 

the district court. Dickerson v. State, 114 Nev. 1084, 1087, 967 P.2d 1132, 

1134 (1998). 

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