This action stems from the construction of the Apache Springs 

common-interest community project. Horizon Investments, Inc. was the 

developer of the project. Horizon, in turn, hired CBC to do all of the 

surface grading and asphalt work. Because CBC could not provide asphalt 

work, it subcontracted with Hanson. 

After the completion of the project, certain defects began to 

appear as a result of the allegedly negligent design and construction of the 

project. The Apache Springs Homeowners' Association (Apache Springs 

HOA) filed a class-action complaint against Horizon, alleging various 

claims under NRS Chapter 40 and tort and contract principles. Horizon 

then filed a third-party complaint against all of its contractors, including 

CBC. Subsequently, CBC filed a third-party complaint against Hanson for 

the asphalt work that it provided on the project. Hanson was dismissed 

from the case, and CBC was eventually able to settle directly with Apache 

Springs HOA. 

CBC then filed an indemnity claim against Hanson to recover 

the total amount paid in the settlement. The matter was set for a bench 

trial, and before opening statements, Hanson moved for a judgment as a 

matter of law, arguing that CBC would be unable to prove the causation 

and damages elements of its claims. The district court denied Hanson's 

motion and proceeded with trial. After CBC's president testified, Hanson 

again moved for a judgment as a matter of law, and after lengthy 

argument, the district court granted Hanson's motion, citing NRCP 50(a). 

Hanson filed a motion for attorney fees pursuant to the offer of judgment 

rule. Over CBC's objection, the district court granted Hanson's motion for 

attorney fees. These consolidated appeals followed. 

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Judgment on partial findings 

CBC's primary contention on appeal is that the district court 

erred in granting Hanson's motion for a judgment as a matter of law. 

Specifically, CBC argues that the district court precluded it from 

presenting testimony that would have satisfied the elements of its claims. 

CBC also argues that the district court improperly entered a judgment 

after determining that proof of actual payment of the settlement and the 

settlement's allocation were necessary elements to prove its claims. In its 

answering brief, Hanson (1) contends that the clear language of NRCP 

50(a)(1) allows a district court to grant a judgment as a matter of law after 

the nonmoving party has been fully heard on an issue and (2) argues that 

CBC was fully heard on the issues of causation and damages and that its 

claims for indemnity failed as a matter of law. 

As a preliminary matter, it is important to clarify the rule of 

civil procedure under which the motion for judgment should have been 

brought. NRCP 50 applies in cases heard before a jury. Therefore, the 

parties' and the district court's reliance on NRCP 50 is misplaced. 

Instead, NRCP 52, which is applicable in nonjury trials, should have been 

applied.' Therefore, further discussion of the district court's entry of a 

judgment as a matter of law will be analyzed as if it had entered a 

judgment on partial findings under NRCP 52(c). 

Subsection (c) of NRCP 52 was added in 2004 and it "conforms 

to the 1991 amendment to [FRCP 52]." In the Matter of a Study 

Committee to Review the Nevada Rules of Civil Procedure, ADKT No. 276 

'The pertinent subdivisions of these rules, NRCP 50(a) and NRCP 

52(c), parallel each other with NRCP 50 applicable in jury trials and 

NRCP 52 applicable in nonjury trials. NRCP 52 drafter's note. 

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(Order Amending the Nevada Rules of Civil Procedure, July 26, 2004); 

NRCP 52 drafter's note. In a nonjury trial, NRCP 52(c) allows the district 

court to enter judgment on partial findings against a party when it "has 

been fully heard on an issue" and judgment cannot be maintained 

"without a favorable finding on that issue." The district court must enter 

findings of fact and conclusions of law that constitute the grounds for its 

action. NRCP 52(a), (c). 

"Findings of fact shall not be set aside unless clearly 

erroneous." NRCP 52(a). We review the district court's application of law 

to facts and issues of statutory construction de novo. D.R. Horton, Inc. v. 

Green, 120 Nev. 549, 553, 96 P.3d 1159, 1162 (2004); I. Cox Constr. Co. v. 

CH2 Invs., LLC, 129 Nev. , 296 P.3d 1202, 1203 (2013). "When a 

statute's language is plain and unambiguous, we give that language its 

ordinary meaning." State, Dep't of Taxation v. Chrysler Grp., LLC, 129 

Nev. P.3d , (Adv. Op. No. 29, May 2, 2013); see Webb ex 

rel. Webb v. Clark Cnty. Sch. Dist., 125 Nev. 611, 618, 218 P.3d 1239, 1244 

(2009) (stating that the rules of statutory construction apply to interpret 

the rules of civil procedure). 

The plain language of NRCP 52(c), as well as the drafter's 

note, indicate that a district court may enter a judgment on partial 

findings once the nonmoving party has been fully heard on an issue. In 

other words, once a party has presented all of the evidence that it plans to 

present on a specific issue, the plain meaning of the rule allows the 

district court to enter a judgment on partial findings if the party fails to 

prove that issue by a preponderance of the evidence—where that issue is a 

necessary element of the prima facie case. Allowing a party to move for a 

judgment on partial findings also supports the judiciary's policy of 
maintaining judicial economy, D.R. Horton, Inc. v. Eighth Judicial Dist. 

Court, 123 Nev. 468, 481, 168 P.3d 731, 741 (2007), because a particular 

claim would not need to be litigated to completion if it is clear that a 

required element of the claim has not been proven. 

When construing and applying NRCP 52(c), we may also look 

to FRCP 52(c) for guidance because its language is almost identical. See 

Moseley v. Eighth Judicial Dist. Court, 124 Nev. 654, 662-63, 188 P.3d 

1136, 1142 (2008) (providing that, when construing a Nevada Rule of Civil 

Procedure, this court may look to the interpretation of similarly worded 

federal rules). The broad language of FRCP 52(c), and NRCP 52(c), 

supports the judiciary's objective to "'conserve[] time and resources by 

making it unnecessary for the court to hear evidence on additional facts 

when the result would not be different even if those additional facts were 

established." Id. at 272 (alteration in original) (quoting 9 James Wm. 

Moore, et al., Moore's Federal Practice § 52.50[2] (3d ed. 2012)). 

Federal courts have interpreted the revised language of the rule to allow 

for the trial court to render a judgment on partial findings at any time 

during the trial as long as the party has been fully heard on the issue. 

See, e.g., id.; Morales Feliciano v. Rullan, 378 F.3d 42, 59 (1st Cir. 2004); 

First Va. Banks, Inc. v. BP Exploration & Oil, Inc., 206 F.3d 404, 407 (4th 

Cir. 2000); Granite State Ins. Co. v. Smart Modular Techs., Inc., 76 F.3d 

1023, 1031 (9th Cir. 1996). "[T]he right to be 'fully heard' does not amount 

to a right to introduce every shred of evidence that a party wishes, without 

regard to the probative value of that evidence." First Va. Banks, Inc., 206 

F.3d at 407; see also Granite State Ins. Co., 76 F.3d at 1031. In reviewing 

whether a judgment on partial findings is appropriate, a district court may 

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weigh the evidence presented and determine whether the nonmoving 

party has satisfied its burden. First Va. Banks, Inc., 206 F.3d at 407. 

Here, the district court granted Hanson's motion for a 

judgment on partial findings after CBC presented only one of its five 

witnesses. CBC argued that it had not finished its presentation of its 

evidence regarding causation and damages. CBC made an offer of proof as 

to the evidence it intended to present. Had CBC been fully heard on the 

issues by being allowed to present its four remaining witnesses, it could 

potentially have proven that its work was not the cause of the defects. 

Indemnity 

An additional problem that arose in the underlying case is 

that the district court and CBC could not agree on the necessary elements 

of proving an indemnity claim—contractual and implied. When the district 

court improperly adds an element to a claim, a party should not be 

required to introduce evidence to prove an unnecessary element. We 

therefore must review the substantive elements of proving a claim for 

indemnity. 

Indemnity "allows a complete shifting of responsibility to an 

'indemnity obligor' when the party seeking indemnity has extinguished its 

liabilities incurred as a result of the indemnity obligor's 'active' fault." 

Doctors Co. u. Vincent, 120 Nev. 644, 651, 98 P.3d 681, 686 (2004). In 

order to establish a claim for indemnity, the party seeking indemnity must 

plead and prove that: 

(1) it has discharged a legal obligation owed to a 

third party; (2) the party from whom it seeks 

liability also was liable to the third party; and (3) 

as between the claimant and the party from whom 

it seeks indemnity, the obligation ought to be 

discharged by the latter. 

6 
Rodriguez v. Primadonna Co., 125 Nev. 578, 590, 216 P.3d 793, 801 

(2009). 

The disagreement in this case focuses on whether proof of 

payment and evidence of the allocation of a settlement are required 

elements of an indemnity claim. In order to satisfy the requirement that 

the claimant discharged the indemnitor's legal obligation, the potential 

indemnitee must prove that it "extinguished its own liability through 

settlement or by paying a judgment." Rodriguez, 125 Nev. at 589, 216 

P.3d at 801. Additionally, "R]o establish a right to indemnification where 

a case is resolved by settlement, the party must establish that the 

settlement was reasonable[ ] [and] that the underlying claim was valid 

against it." 41 Am. Jur. 2d Indemnity § 27 (2005). As such, courts have 

determined that settlement is presumptive evidence of liability of the 

indemnitee and of the amount of liability, but it may be overcome by proof 

from the indemnitor that the settlement was unreasonable, e.g., 

unreasonable in amount, entered collusively or in bad faith, or entered by 

an indemnitee not reasonable in the belief that he or she had an interest 

to protect. Peter Culley & Assocs. v. Superior Court, 13 Cal. Rptr. 2d 624, 

632-33 (Ct. App. 1992); see also Safeco Ins. Co. of Am. v. Gaubert, 829 

S.W.2d 274, 280-81 (Tex. App. 1992); United Boatbuilders, Inc. v. Tempo 

Prods. Co., 459 P.2d 958, 960 (Wash. Ct. App. 1969). But see Besser Co. v. 

Paco Corp., 671 F. Supp. 1010, 1014 (M.D. Pa. 1987) (concluding that an 

indemnitee must prove its liability to the third-party plaintiff); Salt Lake 

City Sch. Dist. v. Galbraith & Green, Inc., 740 P.2d 284, 287 (Utah Ct. 

App. 1987) (determining that an indemnitee who settled with a thirdparty plaintiff without giving notice to the indemnitor must prove its 

liability for the settlement by a preponderance of the evidence). However, 

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proof of payment and the indemnitee's potential liability to the third-party 

plaintiff are not required in order to support the policy favoring 

settlement. Restatement (Third) of Torts: Apportionment of Liability § 22 

cmt. c (2000); see Damanti v. A/ S Inger, 153 F. Supp. 600, 601 (E.D.N.Y. 

1957). Further, it is always possible for the district court to allow the 

indemnity claim to proceed through trial and simply make execution of the 

judgment contingent on payment of the underlying statement. 6 Charles 

Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and 

Procedure § 1451 (3d ed. 2010). 

Here, the district court determined that CBC failed to prove 

that it paid the settlement and to present evidence that would allow the 

district court to determine what amount of the settlement could be 

apportioned to Hanson. CBC offered into evidence copies of the checks 

sent to the attorney for Apache Springs HOA and the corresponding 

acknowledgments of receipt from the attorney. The district court 

determined that the evidence was not sufficient to support a finding that 

the settlement was paid. However, as discussed above, proving that a 

payment was made with respect to a previous settlement is not an element 

of a cause of action for indemnity. 

After Hanson renewed its motion for a judgment as a matter 

of law, CBC opposed dismissal, arguing that evidence of a good faith 

settlement determination and the testimony of its remaining four expert 

witnesses would establish its prima facie claim for indemnity. CBC was 

simply not given a chance to present evidence to prove its case. CBC was 

able to prove that it discharged a liability that it owed to a third party by 

offering evidence of the good-faith settlement. See Rodriguez, 125 Nev. at 

590, 216 P.3d at 801. Further, it was established that CBC did not 
Gibbons 

J. 

J. 

J. 

provide any paving services. Finally, if CBC had been given a chance to 

present its four remaining expert witnesses, it may have been able to 

establish that it was not negligent in providing its services. We therefore 

conclude that the district court erred in determining that CBC had to 

prove that the settlement was paid and establish how the settlement 

amount was reached. Additionally, it was error for the district court to 

enter a judgment against CBC before it was able to present evidence to 

show that it was not the cause of the construction defects. 2For the 

foregoing reasons we, 

ORDER the judgment of the district court REVERSED AND 

REMAND this matter to the district court for proceedings consistent with 

this order. 

2Because we reverse the district court's entry of judgment on partial 

findings, the district court's award of attorney fees must necessarily be 

vacated. See W. Techs., Inc. v. All-Am. Golf Ctr., Inc., 122 Nev. 869, 876, 

139 P.3d 858, 862 (2006) (vacating attorney fees award where damages 

award was reversed and remanded for recalculation). 

9 
cc: Hon. Susan Johnson, District Judge 

Jay Earl Smith, Settlement Judge 

Brady, Vorwerck, Ryder & Caspino 

Lee J. Grant, II 

Robinson & Wood 

Eighth District Court Clerk 

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