Robert Dillon Framing, Inc. (RDF), appeals the district court's 

final judgment awarding damages for breach of implied warranty of 

workmanship (Docket No. 55897). Canyon Villas Apartments crossappeals from the same judgment and separately appeals the district 

court's partial awards of costs and attorney fees (Docket Nos. 57122 and 

57927). We affirm in Docket No. 55897 and affirm in part and reverse and 

remand in part in Docket Nos. 57122 and 57927. 

1. Standing 

RDF argues that Canyon Villas should not have received 

damages because Canyon Villas did not have standing to sue RDF. 

Specifically, RDF argues that Canyon Villas lacks standing because it was 

not an intended third-party beneficiary of the subcontract between RDF 

and the general contractor, Olen Development. Standing is a question of 

law that this court reviews de novo. Arguello v. Sunset Station, Inc., 127 

Nev. , 252 P.3d 206, 208 (2011). Construction of a contract is also 

a question of law subject to de novo review. Fed. Ins. Co. v. Am. Hardware 

Mut. Ins. Co., 124 Nev. 319, 322, 184 P.3d 390, 392 (2008). 

An intended third-party beneficiary must show that the 

parties to the contract clearly intended to benefit him. Lipshie v. Tracy 

Inv. Co., 93 Nev. 370, 379-80, 566 P.2d 819, 824-25 (1977). Third-party 

beneficiary status requires more than the receipt of incidental benefits. 9 

John E. Murray Jr., Corbin on Contracts § 44.9, at 73 (rev. ed. 2007). 

Here, the subcontract explicitly lists the owner as one of the 

beneficiaries of the contract. Most important is paragraph 17, which 

states: "[t]his Agreement shall inure to the benefit of the Contractor and 

the Owner and to all successors, assigns or others claiming under or 

through them. . . ." (emphasis added). The meaning of the word "inure" is 

"to come into use," Black's Law Dictionary 900 (9th ed. 2009), and so it 

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follows that the agreement is "to come into use' for the benefit of' the 

owner. It is also meaningful that paragraph 17 gives the owner a right to 

assign his interest because the owner could not assign rights if he did not 

have rights under the subcontract in the first place. 

Several other provisions of the subcontract similarly establish 

that the owner is an intended beneficiary of the subcontract. For example, 

paragraph 8 reads: "Subcontractor hereby guarantees contractor and 

ownerof the project, against any loss or damage due to defects in 

workmanship or materials furnished under this subcontract"; if the 

subcontractor does not correct defects, "contractor or ownermay, at 

subcontractor's expense, furnish materials and/or labor to bring the work 

and materials up to the required standard" (emphasis added). And 

paragraph 18 indicates that the owner has standing because he may 

recover reasonable attorney fees or court costs incurred "in the prosecution 

of any suit or suits against the Subcontractor." 

Accordingly, the district court did not err when it accorded 

standing to Canyon Villas. Indeed, the district court had a responsibility 

to honor the parties' intentions as plainly written, and it did so 

appropriately. See Renshaw v. Renshaw, 96 Nev. 541, 543, 611 P.2d 1070, 

1071 (1980) (explaining that courts must honor party intentions where a 

contract is clear on its face). 

2. Economic loss doctrine 

RDF argues that the economic loss doctrine bars Canyon 

Villas from recovering damages for breach of the implied warranty of 

workmanship because implied warranties sound in tort, not contract. 

RDF did not raise this issue, however, until after the jury returned a 

verdict. 

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Citing Landmark Hotel v. Moore, 104 Nev. 297, 299, 757 P.2d 

361, 362 (1988), Canyon Villas argues that RDF cannot raise issues for the 

first time on appea1. 1Although Canyon Villas acknowledges that RDF 

raised economic loss in its post-verdict NRCP 50(b) motion, it maintains 

that the motion did not preserve the issue because RDF had not discussed 

economic loss in its pre-verdict NRCP 50(a) motion. RDF responds that a 

waiver is an intentional relinquishment of a knownright, Mahban v. 

MGM Grand Hotels, Inc.,100 Nev. 593, 596, 691 P.2d 421, 423 (1984), and 

here it was not reasonably to be anticipated 2that the jury would find 

breach of the implied warranty without finding breach of contract 

Canyon Villas is correct that a point not urged in the trial 

court is deemed waived and will not be considered on appeal. Britz v. 

Consolidated Casinos Corp.,87 Nev. 441, 447, 488 P.2d 911, 915 (1971). 

Canyon Villas is also correct that RDF's NRCP 50(a) motion did not 

discuss the economic loss doctrine. Under NRCP 50(b) a party may 

"renewits request for judgment as a matter of law" (emphasis added). 

From the rule's plain text, a party is allowed to renew, i.e., repeat, the 

same arguments made in its initial NRCP 50(a) motion. There is no 

1RDF filed joinders to pretrial motions filed by other parties that 

addressed the economic loss doctrine. The district court did not decide 

these motions because the filing parties settled and RDF did not 

separately press the economic loss issue prior to trial. 

2After closing arguments, two theories went to the jury for 

consideration: breach of contract and breach of implied warranty of 

workmanship. The contract required RDF to perform "the highest quality" 

work. The implied warranty of workmanship required RDF to perform 

‘`reasonably skillful" work. In an unusual outcome, the jury found that 

RDF provided work of "the highest quality" but somehow failed to achieve 

the "reasonably skillful" work required by the implied warranty. Of note, 

the jury was not asked to clarify its verdict. 

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indication that new arguments are permissible. See 9B Charles Alan 

Wright & Arthur R. Miller, Federal Practice and Procedure § 2537, at 606- 

16 (2008) ("Since the post-submission motion is nothing more than a 

renewal of the earlier motion made at the close of the presentation of the 

evidence, the case law makes it quite clear that the movant cannot assert 

a ground that was not included in the earlier motion."). Accordingly, 

RDF's NRCP 50(b) motion did not preserve its economic loss argument. 

Nonetheless, even accepting for purposes of discussion that no 

waiver occurred, RDF's economic loss doctrine challenge still fails. 

The economic loss doctrine precludes recovery of economic 

losses in tort actions when the plaintiff has not suffered personal injury or 

damage to his property other than damage to the defective item or 

condition itself. Calloway v. City of Reno, 116 Nev. 250, 262, 993 P.2d 

1259, 1267 (2000), overruled in part by Olson v. Richard, 120 Nev. 240, 

244, 89 P.3d 31, 33 (2004) (explaining that economic loss doctrine does not 

bar recovery for negligence claims brought under NRS Chapter 40). The 

economic loss doctrine does not, however, preclude a party from recovering 

purely economic losses under a contract because contract law seeks to 

enforce the expectancy interests, including standards of quality, created 

by agreement between parties. Id. at 260, 993 P.2d at 1265. And so when 

a party seeks purely economic damages as recompense for unmet 

expectations, the economic loss doctrine does not bar the claim. Similarly, 

this court does not apply the economic loss doctrine to warranty cases 

because warranties are intimately connected to contracts. Id. at 257, 993 

P.2d at 1264. 

Calloway's logic precludes application of the economic loss 

doctrine here. An implied warranty of workmanship accompanies a 

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service contract as a matter of law. In this covenant, the performing party 

promises he will perform with care, skill, reasonable expediency, and 

faithfulness. 23 Richard A. Lord, Williston on Contracts § 63:25, at 525 

(4th ed. 2002). And because the warranty of workmanship addresses the 

qualityof workmanship expected of a promisor, the warranty sounds in 

contract. 

We therefore reject RDF's economic loss doctrine challenge. 

3. Expert evidence 

Next, RDF contends that the district erred by denying its 

motions to exclude extrapolation evidence and allowing Dr. Lorden to give 

an expert opinion during trial. Its contentions are twofold: first, 

extrapolation is inappropriate where multiple units are involved because 

of the potential for variance, and second, Dr. Lorden's testimony did not 

satisfy the requirements 3articulated in Hallmark v. Eldridge, 124 Nev. 

492, 498, 189 P.3d 646, 650 (2008), because it was unreliable and 

unhelpful to the jury. Both claims are without merit. 

This court has not prohibited extrapolation evidence except 

where it was used in a pre-litigation notice of constructional defects or to 

certify a class. See D.R. Horton v. Dist. Ct.,123 Nev. 468, 472, 168 P.3d 

731, 735 (2007); Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 

859, 124 P.3d 530, 545 (2005). In both of these cases, the discussion 

centered on whether the subset of homes that plaintiff had sampled was 

representative—an issue that was particularly problematic because these 

3In Hallmark v. Eldridge,124 Nev. 492, 189 P.3d 646 (2008), this 

court explained that expert testimony must satisfy three requirements: (1) 

the expert must be qualified, (2) the expert's specialized knowledge must 

assist the jury, and (3) the expert must limit his testimony to matters 

within the scope of his knowledge. 124 Nev. at 498, 189 P.3d at 650. 

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cases involved separate single-family homes with varied defects. D.R. 

Horton, 123 Nev. at 479-80, 168 P.3d at 739-40; Shuette, 121 Nev. at 859, 

124 P.3d at 545; see Beazer Homes Holding Corp. v. Dist. Ct., 128 Nev. 

 , 291 P.3d 128, 135-36 (2012). Here, Canyon Villas is not suing in 

a representative capacity. Unlike D.R. Horton and Shuette, it is not 

necessary to determine the exact damages each individual owner is 

entitled to and there is no risk that certain plaintiffs will receive a 

windfall while others would be undercompensated or unfairly precluded. 

Further, the district court did not abuse its discretion when it 

deemed Dr. Lorden's testimony reliable and helpful. RDF does not dispute 

Dr. Lorden's qualifications in the field of statistics. Although the sample 

he examined was small compared to the number of apartments in the 

complex, Dr. Lorden testified that his list of properties to inspect included 

approximately equal numbers of one-, two-, and three-bedroom 

apartments, as well as an equal number of apartments on the first and 

second stories. Moreover, the list of apartments of each type was 

generated by a random-number formula to ensure that the sample was 

random. And as an added level of randomness, experts in the field used 

random numbers to determine which window to test in each apartment. 

Because the sample was random, Dr. Lorden testified that it was 

statistically insignificant that the field experts only examined 2% of the 

windows. In fact, according to Dr. Lorden, a survey of larger or smaller 

size would have yielded the same result and the same margin of error. As 

such, data based on the small sample was reliable and provided the jurors 

with helpful information. 

Thus, the district court did not abuse its discretion by 

admitting Dr. Lorden's testimony. 

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Attorney fees and costs 

Canyon Villas argues that it has a contractual right to all of 

its requested attorney fees, not just the fees incurred after its offer of 

judgment. Additionally, Canyon Villas argues that the district court erred 

in refusing to award paralegal fees as part of attorney fees. This court 

reviews a district court's determination as to the reasonableness of an 

attorney fee claim for an abuse of discretion. Albios v. Horizon 

Communities, Inc., 122 Nev. 409, 417, 132 P.3d 1022, 1027-28 (2006). 

However, whether a statute or contract legally authorizes a fee award 

presents a question of law, which we review de novo. See id.; Davis v. 

Beling, 128 Nev. „ 278 P.3d 501, 515 (2012). 

Attorney fees were not allowed at common law, Jensen v. 

Pradere, 39 Nev. 466, 471, 159 P. 54, 55 (1916), and can only be recovered 

when "authorized. . . by a statute, rule or contract." Davis, 128 Nev. at 

 ,278 P.3d at 515 (quoting U.S. Design & Constr. v. I.B.E.W. Local 357, 

118 Nev. 458, 462, 50 P.3d 170, 173 (2002)). "Where a contract provision 

purports to allow attorney's fees in an action arising out of the terms of 

the instrument,' conventional rules of construction apply. Dobron v. 

Bunch, 125 Nev. 460, 464, 215 P.3d 35, 37-38 (2009) (quoting Campbell v. 

Nocilla, 101 Nev. 9, 12, 692 P.2d 491, 493 (1985)). Thus, "[e]very word 

must be given effect if at all possible," and a court should avoid an 

interpretation that makes a contract provision meaningless. Musser v. 

Bank of America, 114 Nev. 945, 949, 964 P.2d 51, 54 (1998) (alteration in 

original) (quoting Royal Indem. Co. v. Special Serv., 82 Nev. 148, 150, 413 

P.2d 500, 502 (1966)). 

Paragraph 18 of the contract broadly provides that the owner 

is entitled to "any and all reasonable attorneys' fees and court costs which 

may be paid or incurred, growing out of or caused by the Agreement or 

8 
performance hereunder." This language gave Canyon Villas the 

contractual right to recover all reasonable fees that it incurred in 

litigating this dispute with RDF—regardless of whether the underlying 

cause of action sounded in tort or contract. See Santisas v. Goodin, 951 

P.2d 399, 405 (Cal. 1998) ("If a contractual attorney fee provision is 

phrased broadly enough. . . it may support an award of attorney fees to 

the prevailing party in an action alleging both contract and tort claims".). 

For the same reason, it was error, given Canyon Villas' contract right to 

fees, for the district court to limit the award to the fees incurred after the 

offer of judgment. Rather, as in Davis, Canyon Villas should have been 

awarded reasonable fees dating back to the inception of the litigation with 

RDF. Davis, 128 Nev. at , 278 P.3d at 515. We therefore reverse and 

remand for the district court to augment its fee award consistent with this 

order and our decision in Davis. 

The district court also abused its discretion to the extent that 

it excluded paralegal fees from the attorney fees award because reasonable 

attorney fees, which are recoverable under paragraph 18 of the 

subcontract, include paralegal fees. Paralegals provide essential, costeffective services that help attorneys represent clients. See Missouri v. 

Jenkins, 491 U.S. 274, 285, 288 (1989). Limiting fee recovery to members 

of the bar, who bill at a substantially higher rate, would cost everyone, 

including the nonprevailing party, more money. Id. 

Canyon Villas also argues that the district court erred in 

denying it the full $369,000 in costs that it requested. 4The determination 

4Canyon Villas does not press the argument on appeal that it is 

entitled to costs under paragraph 18 of the contract. Hence, we need not 

address that issue. See Edwards v. Emperor's Garden Rest., 122 Nev. 

317, 333 n.38, 130 P.3d 1280, 1288 n.38 (2006). 

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Gibbons 

Parr aguirre 

Saitta 

of allowable costs is within the sound discretion of the trial court, and this 

court will not disturb the district court's decision absent an abuse of that 

discretion. Bergmann v. Boyce, 109 Nev. 670, 679, 856 P.2d 560, 565-66 

(1993). 

In Schouweiler v. Yancey Co., this court explained that when 

evidence on which the lower court's judgment rests is not included in the 

record on appeal, it is assumed that the record supports the district court's 

findings. 101 Nev. 827, 831, 712 P.2d 786, 789 (1985). Here, the basis for 

the determination of allowable costs is unclear and the record contains no 

findings of fact or conclusions of law that decisively show which theory of 

recovery the district court used. Accordingly, we must presume that the 

district court did not abuse its discretion in limiting the costs awarded to 

Canyon Villas, and we therefore affirm the costs award. In light of the 

foregoing, we 

ORDER the judgment of the district court AFFIRMED IN 

PART AND REVERSED IN PART AND REMAND this matter to the 

district court for proceedings consistent with this order as to attorney and 

associated paralegal fees 

, J. 

Hardesty 

)4-C 

Douglas 

,J 

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cc: Ara H. Shirinian, Settlement Judge 

Lewis & Roca, LLP/Las Vegas 

Parker & Edwards 

Berding & Weil, LLP 

Thomas D. Harper, Ltd. 

Springel & Fink 

Lemons, Grundy & Eisenberg 

Maddox, Isaacson & Cisneros, LLP 

Eighth District Court Clerk 

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