breach of oral contract claim. The district court separately considered 

Atwell's remaining equitable claims and found that Atwell was not 

entitled to recovery pursuant to his equitable claims, denied all of Alter's 

post-trial motions, and awarded Atwell prejudgment interest and attorney 

fees. 1On appeal, Alter argues as follows: (1) there was insufficient 

evidence to support the verdict and the judgment, (2) the district court 

erred when it entered prejudgment interest, and (3) the district court 

erred when it awarded Atwell attorney fees. 2 

Substantial evidence supports the jury's verdict in favor of Atwell as to 

liability; however, the amount of damages awarded is not supported by the 

evidence 

A broker may recover a commission if he or she can show that 

an employment contract existed and that he or she was the "procuring 

cause" of the sale. Shell Oil Co. v. Ed Hoppe Realty Inc., 91 Nev. 576, 580, 

540 P.2d 107, 109-10 (1975) (internal quotation omitted). Alter argues 

that because there was no enforceable contract, Atwell was not entitled to 

receive a commission and the jury's verdict was in error. This court will 

not overturn a verdict "if [it is 1 supported by substantial evidence, unless, 

from all the evidence presented, the verdict was clearly wrong." Ringle v. 

Bruton, 120 Nev. 82, 91, 86 P.3d 1032, 1038 (2004) (internal quotation 

omitted). "Substantial evidence is evidence that a reasonable mind might 

1The parties are familiar with the facts and procedural history of 

this case and we do not recount them further except as necessary for our 

disposition. 

2Alter also challenges the district court's ruling on his motion for 

summary judgment, directed verdict, and a new trial, the district court's 

failure to use his special verdict form, and the jury's verdict on his 

counterclaims. After careful consideration, we conclude that Alter's 

arguments on these issues lack merit. 

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accept as adequate to support a conclusion." Id. (internal quotation 

omitted); see also Shell Oil, 91 Nev. at 578, 540 P.2d at 108 ("If the 

evidence, though conflicting, can be read to support [the verdict], this 

court must approve the [trier of fact's] determinations."). Generally, for a 

party to recover contract damages, the party must prove an enforceable 

contract with offer, acceptance, mutual assent, and consideration. May v. 

Anderson, 121 Nev. 668, 672, 119 P.3d 1254, 1257 (2005). Alter argues 

that there was no enforceable contract with Atwell because the contractual 

terms were indefinite, there was not mutual assent, and there was no 

consideration. 

Contractual terms 

"A valid contract cannot exist when material terms are lacking 

or are insufficiently certain and definite" May, 121 Nev. at 672, 119 P.3d 

at 1257. The terms must be definite enough for the court "to ascertain 

what is required of the respective parties" and to "compel compliance." Id. 

Atwell testified at trial that he and Alter orally agreed that if he helped 

Alter close a deal on a hotel in Las Vegas, then he would receive a 

commission from that sale. Atwell further testified that Alter told him on 

more than one occasion that he would take care of Atwell if he successfully 

assisted Alter in his acquisition of a Las Vegas property. From this 

testimony, the trier of fact could reasonably determine that Alter and 

Atwell orally agreed that Alter would pay Atwell a commission if Alter 

closed a deal on a property Atwell introduced to Alter. Further, it was 

reasonable for the jury to determine from Atwell's testimony that Alter 

agreed to pay Atwell the difference between 2 percent and the .75 percent 

that the seller of the Alexis Park originally agreed to pay Atwell. Because 

the jury could reasonably ascertain what performance was required from 

the parties—a commission in exchange for a successful acquisition of a Las 

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Vegas property—we conclude that the terms of the oral contract were 

sufficiently definite. 

Mutual assent 

Alter next argues that there was no mutual assent. All 

parties to a contract must assent to its terms. Grisham v. Grisham, 128 

Nev. , , 289 P.3d 230, 234-35 (2012). "Mutual assent is determined 

under an objective standard applied to the outward manifestations or 

expressions of the parties." ASP Props. Grp. v. Fard, Inc., 35 Cal. Rptr. 3d 

343, 351 (Ct. App. 2005). If the outward words and acts of the parties can 

reasonably be interpreted as acceptance, then mutual assent exists. Id. 

For a party's conduct to be viewed as a manifestation of his assent, the 

party must intend to partake in the conduct and "know[ ] or ha[ve] reason 

to know that the other party may infer from his conduct that he assents." 

Restatement (Second) of Contracts § 19(2) (1981). 

In addition to Alter's promises to "take[ ] care of' Atwell, there 

is evidence in the record that shows that Atwell also faxed Alter a letter in 

which he said, "I think you know that I have tried to demonstrate my 

value and I have been working for you on the 'come,' meaning that Atwell 

would not receive compensation until the completion of a successful 

property acquisition. After receiving the fax from Atwell, Alter met with 

Atwell and discussed other potential deals on Las Vegas properties. Thus, 

we conclude that sufficient evidence demonstrates the parties' mutual 

assent to the oral contract. 

Consideration 

Finally, Alter argues that consideration does not support a 

contract between him and Atwell. "Consideration is the exchange of a 

promise or performance, bargained for by the parties." Jones v. SunTrust 

Mortg., Inc., 128 Nev. 274 P.3d 762, 764 (2012). "Consideration is 

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not adequate when it is a mere promise to perform that which the 

promisor is already bound to do." Cnty. of Clark v. Bonanza No. 1, 96 Nev. 

643, 650-51, 615 P.2d 939, 944 (1980). Although Atwell initially testified 

that all of his actions were done because of his agreement with the Alexis 

Park's seller, Atwell further testified regarding meetings he and Alter had 

with other Las Vegas property owners, advice he gave to Alter, and client 

introductions he made. Thus, we conclude that the evidence presented 

demonstrated sufficient consideration. 

Accordingly, because there was substantial evidence presented 

that adequately demonstrated acceptance, mutual assent, and 

consideration, we conclude that the jury could reasonably conclude that an 

enforceable contract existed between Atwell and Alter. See May, 121 Nev. 

at 672, 119 P.3d at 1257. Thus, we conclude that the jury's verdict in 

favor of Atwell as to liability was not clearly wrong. See Ringle, 120 Nev. 

at 91, 86 P.3d at 1038. However, we agree with Alter that substantial 

evidence does not support the amount of damages awarded to Atwell. See 

Kleeman v. Zigtema, 95 Nev. 285, 287, 593 P.2d 468, 469 (1979) (stating 

that a judgment must be supported by substantial evidence). 

Atwell testified that he entered into negotiations with the 

sellers of the Alexis Park Hotel for a commission fee of 2 percent of the 

hotel's sale price, but that he ultimately signed an agreement with the 

sellers that stated that he would receive a .75 percent commission. Atwell 

further testified that he thought Alter understood that his commission fee 

was 2 percent. However, when asked whether he told Alter that he 

expected a 2 percent commission or whether Alter told him that he would 

"make the difference up," Atwell testified that "[he and Alter] never got 

that far." Rather, Atwell testified, that based on his relationship with 

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Alter, he felt that Alter would take care of him by "mak[ing] the difference 

up" between his stated 2 percent commission and the .75 percent 

commission the sellers agreed to pay. Atwell also testified that if the 

Alexis Park Hotel had agreed to pay him 2 percent then he probably would 

not have asked Alter, as the buyer, to make up the difference. 

At the conclusion of the trial, the jury awarded Atwell $1.5 

million in damages, representing 2 percent of the total $75 million selling 

price of the Alexis Park Hotel. We conclude that the amount of damages 

awarded is belied by Atwell's own testimony, and there was no other 

evidence presented to demonstrate that Alter was responsible for paying 

more than the remaining 1.25 percent of Atwell's 2 percent commission fee 

for the sale of the Alexis Park Hotel. Accordingly, we reverse that portion 

of the district court's judgment and remand this matter to the district 

court with instructions for it to recalculate the amount of damages 

awarded to Atwell as 1.25 percent of the sale price of the Alexis Park 

Hotel. 

The district court erred in awarding prejudgment interest 

Alter argues that the district court erred in awarding 

prejudgment interest because the damages amount was not ascertainable. 

Atwell argues that the sum of money was definite based on his testimony 

that Alter understood that his commission fee was 2 percent. This court 

reviews a district court's award of prejudgment interest for an abuse of 

discretion. M.G. Multi-Family Dev., L.L.C. v. Crestdale Assocs., Ltd., 124 

Nev. 901, 916, 193 P.3d 536, 546 (2008). 

"Three items must be determined to enable the trial court to 

make an appropriate award of interest: (1) the rate of interest; (2) the time 

when it commences to run; and (3) the amount of money to which the rate 

of interest must be applied." Paradise Homes, Inc. v. Cent. Sur. & Ins. 

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Corp., 84 Nev. 109, 116, 437 P.2d 78, 83 (1968). When a district court is 

awarding prejudgment interest in a breach of contract action 

Nile amount of money to which the interest rate 

will be applied must be determined by the 

following factors: (1) if the contract breached 

provides for a definite sum of money, that sum; (2) 

if the performance called for in the contract, the 

value of which is stated in money or is 

ascertainable by mathematical calculation from a 

standard fixed in the contract or from established 

market prices of the subject matter, that sum. 

Pre-judgment interest shall be allowed on the 

amount of the debt or money value so determined, 

after making all the deductions to which the 

defendant may be entitled. 

Id. at 116-17, 437 P.2d at 83. 

Here, the parties' oral contract did not provide for a definite 

sum of money due to Atwell. Thus, the amount of money due "was neither 

definite nor readily ascertainable until judgment." MC. Multi-Family, 

124 Nev. at 917, 193 P.3d at 547 (affirming the district court's refusal to 

award prejudgment interest because a "definite amount of money" was not 

owed under the contract) (internal quotations omitted)). Likewise, the 

value of Atwell's performance was not "ascertainable by mathematical 

calculation from a standard fixed in the contract or from established 

market prices." Paradise Homes, 84 Nev. at 116, 437 P.2d at 83. As such, 

we conclude that the district court abused its discretion by improperly 

awarding Atwell prejudgment interest, and we reverse that portion of the 

judgment awarding prejudgment interest. 

The district court abused its discretion when it awarded attorney fees 

When an offer of judgment has been properly made, the 

district court may order a party to pay attorney fees "[i]f the offeree rejects 

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an offer and fails to obtain a more favorable judgment." NRCP 68(f). 

Before awarding attorney fees, 

the trial court must carefully evaluate the 

following factors: (1) whether the plaintiffs claim 

was brought in good faith; (2) whether the 

defendants' offer of judgment was reasonable and 

in good faith in both its timing and amount; (3) 

• whether the plaintiffs decision to reject the offer 

and proceed to trial was grossly unreasonable or 

in bad faith; and (4) whether the fees sought by 

the offeror are reasonable and justified in amount. 

Beattie v. Thomas, 99 Nev. 579, 588-89, 668 P.2d 268, 274 (1983). The 

district court may award some or all of the attorney fees requested, if 

warranted and after careful consideration of these factors. Id. at 589, 668 

P.2d at 274. But the district court abuses its discretion if it awards the 

full amount of fees requested without considering these factors or making 

any "findings based on evidence that the attorney[ I fees sought are 

reasonable and justified." Id. Even when awarding attorney fees less 

than the amount originally requested, district courts are still required to 

memorialize their analysis of the Beattie factors. See Schwartz V. Estate of 

Greenspun, 110 Nev. 1042, 1050, 881 P.2d 638, 643 (1994) (affirming an 

award of attorney fees even though the district court did not make 

"express findings" on the Beattie factors because the record demonstrated 

that "the district court judge did consider the Beattie factors," but 

cautioning the court that written support of its analysis is necessary for 

proper appellate review). 

Although the district court in this case generally cited Beattie, 

it did not discuss any of the Beattie factors or express any rationale for 

awarding attorney fees to Atwell. As a result, we conclude that the 

district court abused its discretion when it arbitrarily awarded attorney 

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fees to Atwell without first conducting a proper analysis under the Beattie 

factors. Thus, we reverse that portion of its judgment awarding attorney 

fees. See Schouweiler u. Yancey Co., 101 Nev. 827, 833, 712 P.2d 786, 790 

(1985) (stating that this court will not reverse a district court's award of 

attorney fees "[u]nless the trial court's exercise of discretion is arbitrary or 

capricious"); see also Yamaha Motor Co., U.S.A. u. Arnoult, 114 Nev. 233, 

252, 955 P.2d 661, 673 (1998) (reversing the district court's award of 

attorney fees for failure weigh the Beattie factors appropriately). On 

remand, the district court is instructed to re-evaluate whether attorney 

fees should be awarded after careful consideration of the Beattie factors. 3 

For the reasons set forth above, we ORDER the judgment of 

the district court AFFIRMED IN PART AND REVERSED IN PART AND 

REMAND this matter to the district court with instructions for it to 

conduct further proceedings consistent with this order. 

Hardesty 

J. 

J. 

Douglas 

Cherry 

3Alter also argues that the court abused its discretion in denying his 

motion to alter or amend the judgment. Because we reverse and remand 

the judgment on other grounds, we decline to address Alter's argument on 

this issue. 

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cc: Hon. David B. Barker, District Judge 

Thomas J. Tanksley, Settlement Judge 

Morris Law Group 

Kemp, Jones & Coulthard, LLP 

Eighth District Court Clerk 

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