abuse." Bass-Davis v. Davis, 122 Nev. 442, 453, 134 P.3d 103, 110 (2006) 

(internal quotations omitted). "'While review for abuse of discretion is 

ordinarily deferential, deference is not owed to legal error." Roth, 127 

Nev. at , 252 P.3d at 657 (quoting AA Primo Builders v. Washington, 

126 Nev. „ 245 P.3d 1190, 1197 (2010)); see Cooter & Gell v. 

Hartmarx Corp., 496 U.S. 384, 405, (1990) (A district court's ruling relying 

"on an erroneous view of the law or on a clearly erroneous assessment of 

the evidence" is an abuse of discretion). 

Pursuant to NRCP 59(a) allows a new trial to be granted if 

irregularity in the court's proceedings or abuse of discretion by the court 

prevents either party from having a fair trial. The Nevada Code of 

Judicial Conduct (NCJC), Canon 1 states that "[a] judge shall uphold and 

promote the independence, integrity, and impartiality of the judiciary and 

shall avoid impropriety and the appearance of impropriety." Pursuant to 

NCJC Canon 1, Rule 1.2, comment 5, 

[a]ctual improprieties include violations of law, 

court rules, or provisions of this Code. The test for 

appearance of impropriety is whether the conduct 

would create in reasonable minds a perception 

that the judge violated this Code or engaged in 

other conduct that reflects adversely on the judge's 

honesty, impartiality, temperament, or fitness to 

serve as a judge. 

Here, the district court judge held an in-chambers conference 

with Spittler to discuss settlement at the end of the third day of trial. 

"Although efforts on the part of a trial judge to expedite proceedings and 

to encourage settlements out of court are ordinarily to be commended, 

such efforts should never be so directed as to compel either litigant to 

make a forced settlement." Empire Etc. Bldgs. Co. v. Harvey Mach. Co., 

265 P.2d 32, 35 (Cal. Ct. App. 1954). According to Spittler, the judge 

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advised him that if he did not accept the settlement offer, the judge "would 

enter a direct verdict stopping the trial and any further evidence 

produced," causing Spittler serious financial costs. However, this 

conference was held after Spittler had presented his own testimony and 

the testimony of two witnesses. The only evidence Spittler presented after 

the in-chambers conference with the judge was brief testimony from a 

realtor, after which Spittler rested his case. Based on this, we conclude 

that Spittler's rights were not materially affected by the district court's inchambers conference and no irregularity in the proceedings occurred to 

prevent Spittler from having a fair trial. See NRCP 59(a); Empire, 265 

P.2d at 35 (determining that there was no undue pressure placed on the 

parties to force a settlement and thus no abuse of discretion by the trial 

judge where "[t]he trial proceeded at some length, the defendant's case 

was fully presented, and the case [was] taken under submission before 

being decided"). 

Accordingly, we conclude that the district court did not abuse 

its discretion in refusing to grant a new trial as it is unwarranted under 

NRCP 59(a). 1 See NCJC Canon 1, Rule 1.2, cmt. 5; Empire, 265 P.2d at 

35. 

lAlthough Spittler challenges the impartiality of the district court 

judge on appeal, Spittler concedes that he did not object to the in-chamber 

conference at trial. Spittler argues, however, that he was not required to 

object because the district court's error infringes on his constitutional 

rights such that plain error applies. Objections to the impartiality of the 

tribunal must be timely made; otherwise, such objections are waived. See 

Snyder v. Viani, 112 Nev. 568, 573, 916 P.2d 170, 173 (1996); see also 

Venetian Casino Resort v. Dist. Ct., 118 Nev. 124, 130, 41 P.3d 327, 331 

(2002) (holding that if a party has knowledge of potentially disqualifying 

circumstances concerning a special master and fails to object within a 

continued on next page... 

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The district court did not err in determining that access roadway 

easements on parcels patented under the STA are to benefit only small tract 

parcels 

Under the Small Tract Act of 1938, the United States disposed 

of certain 5-acre parcels of government land. 43 U.S.C. § 682a (1940), 

repealed by Federal Land Policy and Management Act of 1976, Pub. L. No. 

94-579, § 702, 90 Stat. 2743, 2789 (1976). In Nevada, those properties 

disposed of are governed by the requirements of the STA Nevada 

Classification Order. Bureau of Land Management, Nevada Classification 

Order (May 18, 1953) (Classification Order). It is undisputed that 

respondents purchased 5-acre parcels that were part of the original 

distribution of government land under the STA. What is disputed is the 

application of the STA's access roadway easements to the properties 

involved in this case. 

The district court's deference to a Department of the Interior 

memorandum was warranted 

Spittler argues that the district court erroneously deferred to 

the agency interpretation provided in a Department of the Interior 

memorandum. See Bureau of Land Management, Easements Reserved in 

Small Tract Act Leases and Patents, Instructional Memorandum No. 91- 

196 (February 25, 1991) (Interior Dept. memorandum). He contends that 

the district court was required to first make a determination that 

Congressional intent was unclear from the statute itself, and the district 

...continued 

reasonable time, the objection is waived). Therefore, we conclude that 

Spittler waived his right to object to the alleged impartiality or bias of the 

judge and, accordingly, waived his right to seek review of this issue on 

appeal. See NCJC Canon 1, R. 1.2, cmt. 5; Empire, 265 P.2d at 35. 

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court never made such a determination prior to relying on the 

memorandum. We disagree. 

IR]eview in this court from a district court's interpretation of 

a statute is de novo." State, Div. of Insurance v. State Farm, 116 Nev. 

290, 293, 995 P.2d 482, 484 (2000) (quoting State, Dep't. of Mtr. Vehicles v. 

Frangul, 110 Nev. 46, 48, 867 P.2d 397, 398 (1994)). Additionally, 

"matters involving the construction of an administrative regulation are a 

question of law subject to independent appellate review." Id. at 293, 995 

P.2d at 484-85. Regardless, this court will generally defer to the "agency's 

interpretation of a statute that the agency is charged with enforcing,' 

when determining the meaning of an administrative regulation. Public 

Agency Compensation Trust v. Blake, 127 Nev. „ 265 P.3d 694, 697 

(2011) (quoting State Farm, 116 Nev. at 293, 995 P.2d at 485). However, 

no deference will be given "to the agency's interpretation if, for instance, a 

regulation 'conflicts with existing statutory provisions or exceeds the 

statutory authority of the agency." Id. (quoting State Farm, 116 Nev. at 

293, 995 P.2d at 485); see also Jerry's Nugget v. Keith, 111 Nev. 49, 54, 888 

P.2d 921, 924 (1995) ("[A]dministrative regulations cannot contradict the 

statute they are designed to implement."). 

In Lengerich v. Department of Interior, the Federal Circuit 

Court of Appeals stated that substantial deference should be given to an 

agency's interpretation of its own regulations, and that the United States 

Supreme Court has advised that clear administrative interpretations 

warrant enforcement. 454 F.3d 1367, 1372 (Fed. Cir. 2006). "To merit 

deference, however, an 'agency's interpretation (1) must have been 

directed to regulatory language that is unclear; (2) must have been 

actually applied in. . . agency action[s]; and (3) must not be plainly 

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erroneous or inconsistent with the regulation." Id. (quoting Gose v. U.S. 

Postal Service, 451 F.3d 831, 839 (Fed. Cir. 2006)). 

Our review of the Interior Dept. memorandum at issue in this 

case indicates that it was offered to clarify regulatory language within the 

STA, it has been applied in agency actions and is not a "post hoc 

rationalization," Gose, 451 F.3d at 839, and the Department of the 

Interior's interpretation is consistent with the statutory language of the 

STA. Thus, we conclude that the district court's deference to this 

memorandum was warranted in its assessment of rights-of-way available 

under the STA, and as requested in this instance by Spittler. 

The district court did not err in finding that STA patents limit 

roadway easements to the sole benefit of already patented parcels 

This court will not disturb a trial court's findings of fact unless 

they are "clearly erroneous and not based on substantial evidence." 

Chateau Vegas Wine v. So. Wine & Spirits, 127 Nev. „ 265 P.3d 

680, 684 (2011) (quoting Beverly Enterprises v. Globe Land Corp., 90 Nev. 

363, 365, 526 P.2d 1179, 1180 (1974)). "Substantial evidence is evidence 

that a reasonable mind might accept as adequate to support a conclusion." 

Jones v. SunTrust Mortgage, Inc., 128 Nev. , 274 P.3d 762, 764 

(2012) (internal quotations omitted). 

On appeal, Spittler relies solely on the Interior Dept. 

memorandum in contending that the district court erred in failing to find 

that the parcel maps of the parties' properties show the respective 

roadways to be permanent easements. Respondents argue that the 

district court did not err in finding that a roadway easement over 

respondents' properties in no way benefitted Spittler's property, and 

Spittler fails to show on appeal how any of the district court's findings 

were clearly erroneous. 

6 
The Classification Order states, in pertinent part, that 

Tracts will be subject to all existing rights-of-way 

and to rights-of-way 33 feet in width along or as 

near as practicable to the boundaries thereof for 

road purposes and public utilities. Such rights-ofway may be utilized by the Federal Government, 

or the State, County or municipality in which the 

tract is situated, or by any agency thereof. 

(Emphases added.) 

The district court concluded that the Classification Order provided no 

easement to private owners of land not designated as STA land. We agree. 

"When construing a statute, this court looks to the words in the statute to 

determine the plain meaning of the statute, and this court will not look 

beyond the express language unless it is clear that the plain meaning was 

not intended." Hernandez v. Bennett-Haron, 128 Nev. „ 287 P.3d 

305, 315 (2012). Rules of statutory construction also apply to 

administrative regulations. Silver State Elec. v. State, Dep't of Tax., 123 

Nev. 80, 85, 157 P.3d 710, 713 (2007). 

Pursuant to the plain language of the Classification Order, 

only those existing rights-of-way that were used by a governmental entity 

for road and public utility purposes survived. As the record demonstrates 

and the district court concluded, the easements on the Purdon and Routsis 

properties were never used as roads under the express language of the 

Classification Order. The Interior Dept. memorandum clarified that 

unless such common law rights-of-way were actually used for the purpose 

of serving a small tract parcel, the dedication no longer existed upon the 

termination of the classification. Thus, upon the STA's repeal in 1976, the 

existing rights-of-way on the Purdon and Routsis properties terminated. 

Accordingly, we conclude that Spittler has failed to 

demonstrate that the district court's findings were clearly erroneous. 

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Because substantial evidence in the record supports the district court's 

findings, we further conclude that the district court did not err in 

determining that a roadway easement over respondents' properties in no 

way benefited Spittler's property. See Chateau Vegas Wine, 127 Nev. at 

265 P.3d at 684. 

The district court did not err in granting respondents' slander of title 

claims 

The district court concluded that respondents met their 

burden of proof in establishing their slander of title claims. In reaching its 

decision, the district court specifically concluded that "Spittler's 

actions.. . , including but not limited to suing the defendants in order [to] 

harass them into a settlement, . . . were not based on reasonable grounds, 

but rather, were in bad faith." 

Malice is a necessary element of a slander of title claim. "In 

order to prove malice it must be shown that the defendant knew that the 

statement was false or acted in reckless disregard of its truth or falsity." 

Rowland v. Lepire, 99 Nev. 308, 313, 662 P.2d 1332, 1335 (1983). 

However, there is no malice if a person has valid reasons to support his or 

her claim. Id. "Additionally, evidence of a defendant's reliance on the 

advice of counsel tends to negate evidence of malice." Id. 

Here, the evidence presented at trial demonstrates that upon 

first seeking access to his land, Spittler communicated to the United 

States Forest Service that he had no other access to his property and was 

therefore landlocked. It was only after Spittler observed the tactics of 

another neighbor in subdividing his land and suing owners of neighboring 

properties to force access did Spittler engage in similar conduct against 

respondents. Spittler claims that his reliance on the advice of Jeff Cruess, 

an employee of the Washoe County Surveyor's Office, indicates a lack of 

8 
malice. Although Cruess testified in support of Spittler's claim for rightof-way, the district court concluded that Cruess was misinformed about 

key facts and found his testimony "to be admittedly biased, uninformed, 

and incorrect." The district court then carefully weighed the evidence 

presented before concluding that Spittler knew as early as 2002 that he 

had no claimed right of access across respondents' properties. This court 

generally defers to the district court regarding witness credibility and will 

not reweigh evidence. Castle v. Simmons, 120 Nev. 98, 103, 86 P.3d 1042, 

1046 (2004) (noting that this court "will not reweigh the credibility of 

witnesses on appeal; that duty rests within the trier of fact's sound 

discretion"). 

Because substantial evidence supports the district court's 

conclusion, we conclude that the district court did not err in granting 

respondents' slander of title claim. See Chateau Vegas Wine, 127 Nev. at 

, 265 P.3d at 684. 

The district court did not err in finding that Spittler was not entitled to an 

easement by necessity 

"Although an implied easement arises by operation of law, the 

existence of an implied easement is generally a question of fact." Jackson 

v. Nash, 109 Nev. 1202, 1208, 866 P.2d 262, 267 (1993). "An easement by 

necessity will generally be found to exist if two requirements are met: (1) 

prior common ownership, and (2) necessity at the time of severance." Id. 

at 1209, 866 P.2d at 268. "A way of necessity arises from the 'application 

of the presumption that whenever a party conveys property, he conveys 

whatever is necessary for the beneficial use of that property and retains 

whatever is necessary for the beneficial use of land he still possesses." Id. 

(quoting Daywalt v. Walker, 31 Cal. Rptr. 899, 901 (Ct. App. 1963)). 

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The party who seeks to burden the property of another by way 

of necessity carries the burden of proof. Id. "In order for an easement by 

necessity to exist, both the benefited parcel and the burdened parcel must 

have been once owned by the same person." Id. If such common 

ownership does not exist, there can be no easement by necessity. Id. at 

1210, 866 P.2d at 268. 

Here, the record reflects that respondents' small tract parcels 

were originally patented in 1956 and 1960 to the properties' predecessors 

under the STA, while Spittler's land was originally patented to his 

predecessors in 1973 pursuant to a separate Congressional Act. The 

patents of these parcels were issued at different periods of time to 

different predecessors and the parcels were subsequently subdivided by 

these predecessors. Thus, we perceive no common ownership that would 

have allowed for a severance of title, creating the need for an easement by 

necessity benefitting Spittler's property. We conclude that Spittler fails to 

meet the first requirement under Jackson, and has thus failed to prove an 

easement by necessity is warranted. 

We further conclude that Spittler has failed to demonstrate 

that he is landlocked, thereby further negating his easement by necessity 

argument. The Forest Service had already granted Spittler an easement 

at the time he sought access across respondents' land. The easement 

required Spittler to construct a road on the granted access way; however, 

Spittler never constructed a road because, upon obtaining the easement, 

he decided he no longer wanted to build a home and live on the property. 

Thus, we conclude that the district court did not err in finding 

that Spittler was not entitled to an easement by necessity. 

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The district court did not err in awarding attorney fees and costs as special 

damages to respondents 

Spittler argues that the Routsises waived their right to 

attorney fees as special damages when they failed to plead accordingly in 

their counterclaim. 2 

A party's failure to properly plead special damages "does not 

necessarily bar an award of attorney fees when evidence of attorney fees 

as damages has been litigated at trial. In such a case, motions under 

NRCP 54(c) or NRCP 15(b) may be appropriate mechanisms for resolving 

a conflict between the pleadings and the trial evidence." Sandy Valley 

Assocs. v. Sky Ranch Estates, 117 Nev. 948, 959, 35 P.3d 964, 971 (2001) 

receded from on other grounds in Horgan v. Felton, 123 Nev. 577, 586, 170 

P.3d 982, 988 (2007). However, there must be "sufficient evidence to 

support the award and the reasonableness of the fee." Id. 

In the Routsises' slander of title counterclaim, they alleged 

that "[a]s a direct, proximate and foreseeable result of [Spittler]'s slander 

of title, [they] have been damaged in excess of $50,000.00 to be shown 

according to proof at trial," but they did not include a claim for attorney 

fees. However, at trial the Routsises presented evidence to support a 

claim for attorney fees without objection and the district court granted 

their motion, filed pursuant to NRCP 15, to amend their counterclaim to 

add attorney fees as special damages. Therefore, we conclude that the 

Routsises did not waive their right to recover attorney fees as special 

damages. 

2Spittler does not assert this argument as to Purdon as he properly 

pleaded special damages. 

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LI 
Spittler further argues that in a slander of title claim, a 

party's costs incurred to litigate the action itself cannot be designated as 

special damages. Instead, only those litigation costs incurred to clear title 

are properly designated as special damages. Spittler contends that the 

district court failed to limit the special damages award to only those fees 

necessary to clear title. 

"Generally, attorney fees are not recoverable absent a statute, 

rule, or contractual provision to the contrary." Horgan, 123 Nev. at 583, 

170 P.3d at 986. "As an exception to the general rule, a district court may 

award attorney fees as special damages in limited circumstances." Id. 

(emphasis added). "[A]ttorney fees are only available as special damages 

in slander of title actions and not simply when a litigant seeks to remove a 

cloud upon title." Id. at 586, 170 P.3d at 988 (emphasis added) (holding 

that where the district court failed to find a valid claim for slander of title 

to real property, attorney fees were not warranted). 

Here, the district court concluded that Spittler's actions 

constituted slander of title, and that respondents had suffered special 

damages in the form of attorney fees and costs spent to clear title to their 

real property. During trial, the district court allowed the respondents to 

present evidence in support of their claims for special damages. The court 

also permitted the respondents to prove additional attorney fees and costs 

through post-trial motions, which Purdon did. 

Because the district court is permitted to award attorney fees 

as special damages in slander of title actions, and because there is 

sufficient evidence to support the reasonableness of the fees awarded here, 

we conclude that the district court did not err in awarding respondents 

their attorney fees and costs associated with removing the cloud upon 

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their titles. 3 Horgan, 123 Nev. at 586, 170 P.3d at 988; Sandy Valley, 117 

Nev. at 959, 35 P.3d at 971. 

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

the district court AFFIRMED. 

Parraguirre 

cc: Second Judicial District Court Dept. 8 

Robert G. Berry, Settlement Judge 

Jeffrey A Dickerson 

Law Offices of Mark Wray 

Chapman Law Firm, P.C. 

Washoe District Court Clerk 

3Spittler also argues that respondents failed to apportion and show 

by admissible evidence of actual work done and costs incurred, and also 

failed to demonstrate that the rate charged was reasonable and customary 

in the community. However, Spiffier fails to provide any cogent argument 

or legal authority to support these issues on appeal, and thus we do not 

consider them. See LVMPD v. Coregis Insurance Co., 127 Nev. , 

n.2, 256 P.3d 958, 961 n.2 (2011) ("Because [the appellant] failed to 

provide any argument or citation to authority on the issues . . . we will not 

address these issues."); see also NRAP 28(a)(9)(A). 

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J.