After a three-day jury trial at which the district court 

permitted Burke to present evidence of the attorney fees that she incurred 

and of her emotional distress, the jury awarded damages to Burke for 

multiple types of harm, including emotional distress and incurred attorney 

fees. The district court then denied Crowley and ALS's motion for 

judgment as a matter of law. The district court awarded costs to Burke 

and granted her motion for a judgment debtor's examination, of Crowley 

and ALS but later vacated the examination. 

Crowley and ALS now appeal and raise the following issues: 

(1) whether the district court erred by refusing to grant Crowley and 

ALS's motion to dismiss Burke's claims for lack of subject matter 

jurisdiction, (2) whether the district court erred by denying Crowley and 

ALS's renewed motion for judgment as a matter of law regarding the 

award of attorney fees as consequential damages and emotional distress 

damages, (3) whether the district court abused its discretion when making 

evidentiary rulings, (4) whether the district court abused its discretion by 

refusing to give Crowley and ALS's proposed jury instructions, (5) whether 

the district court abused its discretion by improperly limiting Crowley's 

closing argument, (6) whether Burke's attorney committed misconduct 

during closing argument, and (7) whether the district court abused its 

discretion when making a post-judgment award of costs and ordering a 

judgment debtor's examination.' 

'Crowley and ALS waived for consideration their appellate 

arguments that the district court erred by submitting an improper jury 

verdict form and by refusing to grant judgment as a matter of law on the 

application of the Nevada State Bar's fee arbitration program rules by not 

raising these issues before the district court. See Old Aztec Mine, Inc. v. 

Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981). Furthermore, Crowley 

continued on next page... 

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The district court had subject matter jurisdiction over Burke's claims 

Crowley and ALS argue that the district court improperly 

refused to dismiss Burke's claims because they were worth less than the 

amount-in-controversy threshold for the district court's jurisdiction. 

We review subject matter jurisdiction and a district court's 

resolution of a motion to dismiss de novo. Ogawa v. Ogawa, 125 Nev. 660, 

667, 221 P.3d 699, 704 (2009) (reviewing subject matter jurisdiction de 

novo); Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227-28, 181 

P.3d 670, 672 (2008) (reviewing the resolution of a motion to dismiss de 

novo). 

Burke alleged sufficient damages to meet the amount-in-controversy 

threshold for the district court's jurisdiction 

District courts have original jurisdiction in cases where the 

amount of controversy exceeds $10,000. See generally Nev. Const. art. 6, § 

6(1); 2013 Nev. Stat., ch. 172, § 2, at 597 (former NRS 4.370(1)(a)-(b)). A 

claim for damages satisfies the jurisdictional amount in controversy 

unless "it . . . appear[s] to a legal certainty that the [damages are] worth 

less than the jurisdictional amount." Edwards v. Direct Access, LLC, 121 

Nev. 929, 933, 124 P.3d 1158, 1160 (2005) (alteration in original) (internal 

quotations omitted), abrogated on other grounds by Buzz Stew, 124 Nev. at 

228 n.6, 181 P.3d at 672 n.6. 

...continued 

and ALS make no substantive argument addressing the district court's 

denial of their motion for dismissal pursuant to NRCP 41(b). Therefore, 

this issue is non-cogent and we need not address it. See Edwards v. 

Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.M 1280, 1288 n.38 

(2006) (refusing to address a non-cogent argument). 

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In her complaint, Burke stated two claims for legal 

malpractice against Crowley and ALS. For each claim, she sought 

compensatory damages in excess of $10,000, attorney fees, and punitive 

damages. Since Burke did not allege any facts to limit the value of the 

compensatory damages that she sought, she alleged sufficient 

compensatory damages to meet the legal certainty test. See id. Therefore, 

the district court properly denied Crowley and ALS's motion to dismiss. 2 

The district court erred by refusing to grant Crowley and ALS's renewed 

motion for judgment as a matter of law with regard to the award of 

attorney fees as consequential damages but properly denied their motion 

with regard to emotional distress damages 

Crowley and ALS argue that the district court erred by 

denying their renewed motion for judgment as a matter of law with regard 

to Burke's recovery of attorney fees as consequential damages and 

emotional distress damages because these types of damages are not 

recoverable in a legal malpractice action. 

Burke argues that emotional distress damages and attorney 

fees incurred when pursuing a legal malpractice claim are recoverable 

because they are a foreseeable result of the malpractice. 

2To the extent that the district court incorrectly relied on Burke's 

claims for attorney fees when finding that her complaint satisfied the 

jurisdictional threshold, see Royal Ins. v. Eagle Valley Constr., Inc., 110 

Nev. 119, 120, 867 P.2d 1146, 1147 (1994) (holding that attorney fees and 

costs incurred in bringing a case cannot be relied upon to satisfy the 

jurisdictional threshold), its denial of Crowley and ALS's motion to dismiss 

was proper because it reached the correct result, albeit for the wrong 

reason. See Holcomb v. Ga. Pac., LLC, 128 Nev., Adv. Op. 56, 289 P.3d 

188, 200 (2012). 

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We review de novo the denial of a renewed motion for 

judgment as a matter of law and a party's eligibility to recover a particular 

type of damages. Rd. & Highway Builders, LLC v. N. Nev. Rebar, Inc., 

128 Nev., Adv. Op. 36, 284 P.3d 377, 380 (2012) (reviewing de novo the 

resolution of a renewed motion for judgment as a matter of law); 

Dynalectric Co. of Nev., Inc. v. Clark & Sullivan Constructors, Inc., 127 

Nev. 480, 483, 255 P.3d 286, 288 (2011) (reviewing de novo a party's 

eligibility to recover a type of damages). 

After a party has presented its case-in-chief, the district court 

may enter a "judgment as a matter of law against that party with respect 

to a claim or defense that cannot under the controlling law be maintained 

or defeated without a favorable finding on that issue." NRCP 50(a)(1). 

This standard applies to renewed motions for judgment as a matter of law. 

Nelson v. Heer, 123 Nev. 217, 223, 163 P.3d 420, 424 (2007); see also NRCP 

50(b). 

The district court erred by denying Crowley and ALS's motion with 

regard to the award of attorney fees as consequential damages 

Generally, "the district court may not award attorney fees 

absent authority under a statute, rule, or contract." Albios v. Horizon 

Cmtys., Inc., 122 Nev. 409, 417, 132 P.3d 1022, 1028 (2006). Burke 

identifies no statute or rule authorizing her to recover attorney fees as 

consequential damages in the present case. Nor does the record suggest 

that she had a contractual right to such damages. Thus, Burke cannot 

recover attorney fees as consequential damages unless an exception to the 

general rule applies. 

"[Ns an exception to the general rule, attorney fees may be 

awarded as special damages in limited circumstances." Liu v. Christopher 

Homes, LLC, 130 Nev., Adv. Op. 17, 321 P.3d 875, 878 (2014) (internal 

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quotations omitted). Here, the record does not suggest that any of the 

limited circumstances identified in Nevada caselaw apply. 3 See id. 

Therefore, the district court erred by not granting judgment as a matter of 

law against the award of attorney fees as consequential damages. 

The district court did not err when denying Crowley and ALS's 

motion regarding the award of emotional distress damages 

Generally, "a claim of negligent infliction of emotional distress 

is inappropriate in the context of a legal malpractice suit when the harm 

resulted from pecuniary damages, even if the plaintiffs demonstrated 

physical symptoms." Kahn v. Morse & Mowbray, 121 Nev. 464, 478, 117 

P.3d 227, 237 (2005). However, "this court [has] recognized the rule that, 

in special cases involving peculiarly personal subject matters, mental 

anguish may be a foreseeable damage resulting from breach of contract." 

Selsnick v. Horton, 96 Nev. 944, 946, 620 P.2d 1256, 1257 (1980); see also 

Burrus v. Nev.-Cal.-Or. Ry., 38 Nev. 156, 162, 145 P. 926, 929 (1915) 

(stating that "[r]ecovery for mental suffering should be limited to special 

cases"). Thus, Nevada law does not preclude the recovery of emotional 

distress damages for a special case, such as when harm arises from legal 

malpractice in a highly personal representation advancing a nonpecuniary interest. 

3To the extent that Burke contends that we should adopt a new 

exception that applies to the facts of the present case, she has failed to 

provide a compelling reason for us to diverge from established caselaw. 

See Miller v. Burk, 124 Nev. 579, 597, 188 P.3d 1112, 1124 (2008) 

("[U]nder the doctrine of stare decisis, [this court] will not overturn 

[precedent] absent compelling reasons for so doing. Mere disagreement 

does not suffice." (citations omitted)). Thus, this argument is without 

merit. 

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Here, the record demonstrates that Burke retained Crowley 

and ALS for a highly personal representation to achieve a non-pecuniary 

goal: her then-husband's adoption of her son. Thus, Burke was eligible to 

recover emotional distress damages in the present case. Therefore, the 

district court properly denied Crowley and ALS's motion for judgment as a 

matter of law with regard to this issue. 

The district court did not commit reversible error when making its 

evidentiary rulings 

Crowley and ALS argue that the district court improperly 

allowed Burke to present evidence of her emotional distress because it had 

previously dismissed her emotional distress claim. 4They also contend 

that the district court improperly allowed Burke to present evidence of the 

attorney fees that she incurred. Finally, Crowley and ALS argue that the 

district court improperly prohibited Crowley from impeaching Burke 

during cross-examination. 

"We review a district court's decision to admit or exclude 

evidence for abuse of discretion, and we will not interfere with the district 

court's exercise of its discretion absent a showing of palpable abuse." M. C. 

Multi-Family Dev., L.L.C. v. Crestdale Assocs., Ltd., 124 Nev. 901, 913, 

193 P.3d 536, 544 (2008). 

`Crowley and ALS's related argument that the law of the case 

doctrine precludes a district court from reversing its prior ruling is 

without merit because the law of the case doctrine only applies to 

appellate decisions and not prior district court orders. See Dictor v. 

Creative Mgmt. Servs., LLC, 126 Nev. 41, 44, 223 P.3d 332, 334 (2010). 

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The district court did not abuse its discretion by allowing evidence of 

Burke's emotional distress 

Evidence that has a tendency to make a material fact more or 

less probable is relevant and generally admissible. NRS 48.015; NRS 

48.025(1). "A district court may reconsider a previously decided issue if 

substantially different evidence is subsequently introduced or the decision 

is clearly erroneous." Masonry & Tile Contractors Ass'n of S. Nev. v. 

Jolley, Urga & Wirth, Ltd., 113 Nev. 737, 741, 941 P.2d 486, 489 (1997). 

In its pretrial order, the district court found that Burke failed 

to state an emotional distress cause of action because she did not allege 

any physical injury as a symptom of emotional distress. In making this 

finding, the district court applied the elements of the tort of intentional 

infliction of emotional distress. It is unclear from the record whether the 

district court dismissed Burke's demands for emotional distress damages 

from her legal malpractice claims or dismissed a stand-alone emotional 

distress claim. 

A legal malpractice claim does not require that the elements of 

intentional infliction of emotional distress be satisfied or that a plaintiff 

suffer physical symptoms to be eligible to recover for emotional distress. 

See Day v. Zubel, 112 Nev. 972, 976, 922 P.2d 536, 538 (1996) (stating the 

elements for a legal malpractice claim without identifying intentional 

infliction of emotional distress or requiring physical symptoms of harm). 

Thus, the district court applied an erroneous standard of law if its order 

dismissed Burke's claim for emotional distress damages from her legal 

malpractice claims. Therefore, if the prior order dismissed claims for 

emotional distress damages from Burke's legal malpractice claims, the 

district court properly reconsidered the prior order when it allowed 

evidence of emotional distress damages. 

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If the prior order dismissed a stand-alone emotional distress 

claim and not emotional distress damages from Burke's legal malpractice 

claims, then evidence of her emotional distress would have remained 

relevant to the damage elements of her legal malpractice claims and thus 

admissible. Therefore, the district court did not abuse its discretion by 

admitting evidence of Burke's emotional distress that was relevant to her 

properly reinstated claim. 

The district court abused its discretion by admitting evidence of the 

attorney fees that Burke incurred 

Attorney fees are not recoverable as consequential damages in 

the present case because they are not authorized as such by statute, rule, 

contract, or caselaw. See Liu, 130 Nev., Adv. Op. 17, 321 P.3d at 878; 

Albios, 122 Nev. at 417, 132 P.3d at 1028. Thus, evidence that is only 

relevant to the issue of the attorney fees that Burke incurred in pursuing 

her legal malpractice claim is irrelevant and thus inadmissible. See NRS 

48.015; NRS 48.025(2). Therefore, the district court abused its discretion 

by admitting this evidence. 

To demonstrate that an error is not harmless and warrants 

reversal, a party "must show that the error affects the party's substantial 

rights so that, but for the alleged error, a different result might reasonably 

have been reached." Wyeth v. Rowatt, 126 Nev. 446, 465, 244 P.3d 765, 

778 (2010); see also NRCP 61. Here, Crowley and ALS fail to show that 

the admission of this inadmissible evidence amounted to more than 

harmless error because they provide no analysis to suggest that this 

evidence impacted any valid claim, defense, or recoverable element of 

damages. Therefore, the improper admission of this evidence was 

harmless error and does not warrant reversal. 

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The district court did not abuse its discretion by limiting Crowley's 

cross-examination of Burke 

Before a witness may be impeached with prior inconsistent 

statements, "a foundation must be laid by interrogating the witness 

himself as to whether he has ever made such statements." Mattox v. 

United States, 156 U.S. 237, 245 (1895), quoted with approval in Reno Mill 

& Lumber Co. v. Westerfield, 26 Nev. 332, 337, 67 P. 961, 962, rev'd on 

other grounds, 26 Nev. 332, 346, 69 P. 899, 900 (1902). 

When cross-examining Burke about her prior trial testimony, 

Crowley attempted to impeach Burke with an inconsistent, but 

unspecified, comment that someone had purportedly made at Burke's 

deposition. Crowley did not identify the statement or ask Burke if she 

made it. Thus, Crowley failed to lay a proper foundation for his 

impeachment of Burke, and the district court did not abuse its discretion 

by refusing to allow Crowley's cross-examination on this issue. 5 

The district court did not abuse its discretion by refusing to give Crowley 

and ALS's proposed jury instructions 

Crowley and ALS argue that the district court improperly 

refused to give seven of their proposed jury instructions. We review a 

district court's decision regarding jury instructions for abuse of discretion 

or judicial error. Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev. 

1430, 1435, 148 P.3d 710, 714 (2006). 

°To the extent that Crowley and ALS contend that the district court 

improperly limited the cross-examination of Burke at a bench conference, 

their argument is without merit because their failure to include a 

transcript of the bench conference in the appellate record requires us to 

presume that the district court acted properly. See Cuzze v. Univ. & Cmty. 

Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 131, 135 (2007). 

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A jury instruction need not be given where its substance is 

adequately covered in other instructions. See S. Pac. Co. v. Watkins, 83 

Nev. 471, 493, 435 P.2d 498, 512 (1967). Here, Crowley and ALS omitted 

the jury instructions that the district court gave from the appellate record. 

We must presume that the given jury instructions adequately covered the 

content of their jury instructions that the district court refused to give. 

See Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 603, 172 P.3d 

131, 135 (2007) (observing that "we necessarily presume that the missing 

portion supports the district court's decision"). Additionally, it is appellant 

who "bears the responsibility of ensuring an accurate and complete record 

on appeal." Id. at 603, 172 P.3d at 135. Therefore, we conclude that the 

district court did not abuse its discretion by refusing to give Crowley and 

ALS's proposed jury instructions. 

The district court did not abuse its discretion by limiting Crowley and 

ALS's closing argument 

Crowley and ALS argue that the district court improperly 

prevented Crowley from addressing the application of the bylaws of the 

Nevada State Bar's fee arbitration program in closing argument. 

We review a district court's regulation of closing arguments for 

an abuse of discretion, see Manley v. State, 115 Nev. 114, 125, 979 P.2d 

703, 709-10 (1999), and observe that the district court has the authority to 

prevent an attorney from misstating the applicable law during closing 

argument. See Scott v. State, 92 Nev. 552, 556, 554 P.2d 735, 738 (1976). 

Here, the district court instructed Crowley not to misstate the applicable 

law and did not prohibit him from discussing the fee arbitration program's 

bylaws. Therefore, it did not abuse its discretion. 

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Burke's attorney did not commit misconduct in closing argument 

Crowley and ALS argue that Burke's attorney committed 

misconduct by making multiple improper comments during closing 

argument. Specifically, Burke's attorney told jurors that "[they] are the 

voice of the community. Those are my words. I'm going to ask you to do 

the right thing. It's what you took the oath to do. No more lawyer jokes, 

you can go downtown now and say, hey look, I told at least one lawyer to 

clean up." However, they did not object to these comments. 

We review de novo "[w[hether an attorney's comments are 

misconduct" and will only reverse a judgment for unobjected-to 

misconduct when it constitutes "irreparable and fundamental 

error ... that results in a substantial impairment of justice or denial of 

fundamental rights such that, but for the misconduct, the verdict would 

have been different." Lioce v. Cohen, 124 Nev. 1, 19-20, 174 P.3d 970, 982 

(2008). The complaining party has the burden to demonstrate that 

reversal is warranted. Id. at 19, 174 P.3d at 982. 

Crowley and ALS offer no meaningful analysis and cite no 

controlling or persuasive legal authority to support their contention that 

Burke's attorney's comments amounted to misconduct. Therefore, this 

issue is non-cogent and we need not address it. See Edwards v. Emperor's 

Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38 (2006) 

(refusing to address a non-cogent argument). 

The district court abused its discretion when awarding costs to Burke and 

scheduling a debtor's examination, but these abuses were harmless error 

Crowley and ALS argue that the district court improperly 

awarded costs to Burke and ordered a judgment debtor's examination of 

Crowley and ALS before they had an opportunity to file a motion to retax 

costs or to oppose the judgment debtor's examination. 

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We review an award of costs for an abuse of discretion. Vill. 

Builders 96, L.P. u. U.S. Labs., Inc., 121 Nev. 261, 276, 112 P.3d 1082, 

1092 (2005). Since a judgment debtor's examination is a proceeding upon 

which a judgment debtor provides information about his or her assets, 

NRS 21.270(1), it is a discovery issue whose resolution we review for an 

abuse of discretion. See Club Vista Fin. Servs., L.L.C. v. Eighth Judicial 

Dist. Court, 128 Nev., Adv. Op. 21, 276 P.3d 246, 249 (2012). An abuse of 

discretion can occur when a district court disregards controlling law. 

Bergmann v. Boyce, 109 Nev. 670, 674, 856 P.2d 560, 563 (1993). 

The district court abused its discretion by prematurely awarding 

costs, but this was harmless error 

A party has three days to file a motion to retax after it has 

been served with a motion for costs. NRS 18.110(4). Before the time 

expired for Crowley and ALS to file their motion to retax costs, the district 

court awarded costs to Burke. However, the district court revised its 

award of costs after Crowley and ALS filed their motion. 

Since it awarded costs to Burke before Crowley and ALS's 

time to respond had expired, the district court abused its discretion by 

disregarding NRS 18.110(4). However, this was harmless error because 

the district court reduced its award in response to Crowley and ALS's 

subsequent motion to retax costs. See NRCP 61. 

The district court abused its discretion by ordering a judgment 

debtor's examination, but this was harmless error 

Except as otherwise provided for by court rules, a party in the 

Tenth Judicial District Court has ten days after being served with a 

motion to file an opposition. 10 JDCR 15(9). Here, the district court 

issued an order scheduling a judgment debtor's examination less than ten 

days after Burke served a copy of the motion for a judgment debtor's 

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examination on Crowley and ALS. Therefore, the district court abused its 

discretion by granting this motion before Crowley and ALS's time to 

respond had expired. See 10 JDCR 15(9); see also Bergmann, 109 Nev. at 

674, 856 P.2d at 563. However, this abuse was harmless because the 

district court vacated its order• scheduling the judgment debtor's 

examination before the examination was held. See NRCP 61. 

Conclusion 

The district court properly denied Crowley and ALS's motion 

to dismiss because it had subject matter jurisdiction over Burke's claims. 

However, it erred by refusing to grant judgment as a matter of law against 

the award of attorney fees as consequential damages but properly refused 

to grant judgment as a• matter of law against the award of emotional 

distress damages. While the district court properly admitted evidence of 

Burke's emotional distress and limited Crowley's cross-examination of 

Burke, it abused its discretion by admitting evidence of the attorney fees 

that Burke incurred. However, this abuse was harmless error. 

The district court also properly refused to give Crowley's 

proposed jury instructions and did not abuse its discretion by instructing 

Crowley not to make misstatements of law. Burke's attorney did not 

commit misconduct in closing argument because he did not improperly 

appeal to the jury's emotions or urge it to ignore the evidence. Finally, the 

district court abused its discretion by awarding costs to Burke and 

scheduling a judgment debtor's examination of Crowley and ALS before 

their time to respond expired. However, these abuses were harmless 

because the district court subsequently modified its award of costs and 

vacated the order scheduling the judgment debtor's examination. Thus, 

the district court's judgment is proper except for the award of attorney 

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fees as consequential damages, which is unsupported by our governing 

law. 6Therefore, we 

ORDER the judgment of the district court AFFIRMED IN 

PART AND REVERSED IN PART. 

J. 

Pickering 

cc: Chief Judge, Tenth Judicial District Court 

Hon. Robert E. Estes, Senior Judge 

Carolyn Worrell, Settlement Judge 

American Legal Services 

Martin G. Crowley 

Bradley Drendel & Jeanney 

Churchill County Clerk 

°We have considered the parties' remaining arguments and conclude 

that they are without merit. 

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