### 140Nev.,AdvanceOpinion (CO IN THE SUPREME COURT OF THE STATE OF NEVADA

STORM LUNA GRIFFITH, INDIVIDUALLY;AND ISAIAS LUNACORTEZ, INDIVIDUALLY, Appellants, vs. ZOE RIVERA; AND L.R., THROUGH ZOE RIVERA AS NATURAL PARENT OF L.R., Respondents. No. 86755

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EL ETHA. aRcy N CLE CURT BY EF DEPUTY CLERK Appeal from a short trialjudgment in a personal injury action. Eighth Judicial District Court, Clark County; Jessica K. Peterson, Judge.

Affirmed.

Martinez Dieterich & Zarcone Legal Group and Melanie Muldowney, Las Vegas, for Appellants. The Powell Law Firm and Paul D. Powell, Jonathon C. Roberts, and Torn W. Stewart, LasVegas, for R.espondents.

BEFORE THE SUPREME COURT, STIGLICH, PICKERING, and PARRAGUIRRE, JJ.

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### OPINION

By the Court, PARRAGUIRRE, J.:

In August 2021, a vehicle driven by Storm Griffith and owned by Isaias Luna-Cortez (hereinafter appellants) collided with a vehicle holding Zoe Rivera and her daughter L.R. (hereinafter respondents). Respondents filed a complaint against appellants, and the case proceeded tocourt-annexedarbitration. Respondentssucceededatarbitration,andon October25, 2022, appellantsfiled a requestfor trialde novo. Theverynext day, on October 26, 2022, this court issued an order amendingthe Nevada Short Trial Rules. See In re Creation of a Cornrn. to Study the Rules Governing Alternative Dispute Resolution and Nev. Short Trial Rules, ADKT 0595 (Order Amending the Rules Governing Alternate Dispute Resolution and Nevada Short Trial Rules, Oct. 26, 2022). Among the amendments was a change to NSTR 27(b)(4) increasing the amount of attorneyfeesashorttrialjudgemayawardfrom$3,000to$15,000. Id. The order stated that the amendments would become effective beginning January 1, 2023. Id.

AshorttrialwasheldonMarch3, 2023, andrespondentsagain prevailed. Respondents then filed an application for fees, costs, and prejudgmentinterest,andtheshorttrialjudgeawarded$15,000inattorney feestoeachrespondent,totaling$30,000. The districtcourt entered afinal judgment consistent with the short trial judge's award. Appellants now appeal,arguingthatbecausetheyfiledtheirrequest for trialdenovobefore

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### 2the rule change, the short trial judge should have applied the preamendment, $3,000 attorney fee cap.1 DISCUSSION Appellants argue that the short trial judge erred by applying the attorney fee rule change retroactively to award respondents $15,000 in attorney fees. We review a trial court's award ofattorneyfees for an abuse ofdiscretion. Mack-Manley v. Manley, 122 Nev.849, 860, 138P.3d 525, 533 (2006). But questions of retroactivity are reviewed de novo. Corp. of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints v. Seventh Jud. Dist. Ct., 132 Nev. 67, 70, 366 P.3d 1117, 1119 (2016).

When a statute or rule is amended, "[t]here is a general presumption in favor of prospective application." Delucchi v. Songer, 133 Nev. 290, 293, 396 P.3d 826, 829 (2017) (alteration in original) (quoting McKellar v. McKellar, 110 Nev. 200, 203, 871 P.2d 296, 298 (1994)). But this general presumption "does not apply to statutes or rules that do not change substantive rights and instead relate solely to remedies and procedure." Valdez v.Emps. Ins. Co. ofNev., 123Nev. 170, 179-80, 162 P.3d 148, 154 (2007) (emphasis added). Such procedural and remedial rule changes"willbe appliedto anycasespendingwhen

. . . enacted." Id. at 180, 162 P.3d at 154.
'Appellants also argue on appeal that the short trial judge erred by awarding the maximum attorney fee amount per plaintiff, as opposed to interpreting the fee cap as a per-side limitation. But appellants failed to raise this argument below even though respondents requested the maximum amount per party in their application for attorney fees. Therefore, the argument is waived. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52, 623 P.2d 981, 983 (1981) ("A point not urged in the trial court
... is deemed to have been waived and will not be considered on appeal.").

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OF NEVADA (0) I947A 3Appellants argue that the short trialjudge improperly applied

the rule change retroactively because the rule change affected their substantive rights. Respondents assert that the amendment was merely a proceduralchangegoverningthe availableremedyandthereforeretroactive application is appropriate. "The line between a substantive and a procedural rule is a 'hazy' one." Sequoia Orange Co. v. Yeutter, 973 F.2d 752, 757 (9th Cir. 1992) (quotingArn. Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987)). But we have stated that "a substantive standard is

one that createsduties, rights, and obligations, while a procedural standard specifieshow those duties, rights, and obligations shouldbe enforced." Lyft, Inc. v. Eighth Jud, Dist. Ct., 137 Nev. 832, 838, 501 P.3d 994, 1001 (2021) (quotingAzar v. Allina Health Servs., 587 U.S. 566, 573 (2019)).

Rules providing the circumstances under which attorney fees may be awarded, such as NSTR 27(b), are typically considered substantive. See WPHArchitecture, Inc. v. Vegas VP, LP, 131 Nev. 884, 889, 360 P.3d 1145, 1148 (2015). However, the specific amendment to NSTR 27(13)(4) at issue here did not create or remove any conditions under which a short trial judge may award fees. Rather, the amendment simply increased the maximum amount of attorney fees a short trialjudge may award. Thus, it did not create or remove any duty, right, or obligation; it simply "specifie[d] how those [preexisting

.] duties, rights, and obligations should be enforced." Lyft, 137 Nev. at 838, 501 P.3d at 1001 (quotingAzar, 587 U.S. at 573). In other words, it may be reasonably characterized as a procedural amendment governing the available remedy. See Republican Atrys Gen. Ass'n v. Las Vegas Metro. Police Dep't, 136 Nev. 28, 32, 458 P.3d 328, 332 (2020) (recognizing attorney fees for a prevailing party as an available remedy); In re W.N. Connell &Marjorie T. Connell Living Tr., 134 Nev. 613,

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### 618, 426 1 3,3d 599, 603 (2018) (acknowledging attorney fees as one of a varietyofremedies available in a breach offiduciary duty action).

But "[d]etermining whether a statute alters substantive rights and thereby has retroactive effect 'is not always a simple or mechanical task.'" Salloum v. Boyd Gaming Corp., 137 Nev. 549, 551, 495 P.3d 513, 516 (2021) (quoting SandpointeApartments, LLC v. Eighth Jud. Dist. Ct., 129 Nev. 813, 820, 313 P.3d 849, 854 (2013)). Indeed, the distinction between substantive and procedural rules has been characterized as a "logical morass." Mistretta v. United States, 488 U.S. 361, 392 (1989). Fundamentally, this distinction—and how it relates to questions of retroactivity—depends less on abstract classification than on context, with
a focus on "familiar considerations of fair notice, reasonable reliance, and settled expectations." Martin v. Hadix, 527 U.S. 343, 358 (1999); see Salloum, 137 Nev. at 551-52, 495 P.3d at 516 (noting the "fundamental notions of fair notice, reasonable reliance, and settled expectations" (internal quotation marks omitted)). It is true that the increase in the attorney fee cap from S3,000 to SI.5,000 multiplied the risk of pursuing a trial de novo and did so after a trial de novo request was filed. But notice of'the rule change waspublished 67 days before the change took effect.

Appellants argue that they reasonably relied upon the expectation that attorney fees would be capped at S3,000 when they requested a trial de novo. But "[a] statute does not operate 'retrospectively' merelybecause it

. . . 'upsets expectationsbased in prior law." Sandpointe Apartments, 129 Nev. at 821, 313 P.3d at 854 (quotingPub. Emps.'Benefits Program v. Las Vegas Metro. Police Dep't, 124 Nev. 138, 155, 179 P.3d 542, 553 (2009), and Landgraf v. USI Film Prods., 511 U.S. 244, 269 (1994)). The short trial was held over four months after this court issued the order

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### 5 “.1) lgJ7Aamending the short trial rules in ADKT 0595 and two months after the

changes went into effect. Even crediting the argument that the risk of increased attorney fees was substantive, appellants were provided fair notice of the rule change and had ample opportunity to change course to either withdraw the short trial request before incurring that risk or otherwise conform their conduct to the increased risk. Cf. Martin, 527 U.S. at 358 (notingthat attorneyshadthe opportunitytowithdrawfromthe case to avoid a lower hourly rate brought about by a newly enacted statute). Further, the policy of discouraging frivolous short trial requests remains the same under both the original and amended rule. Because the parties
were provided fair notice ofthe rule change, any continued reliance on the $3,000 attorney fee cap after the issuance of ADKT 0595 was not reasonable. Therefore, the amendment "did not upset any reasonable expectations ofthe parties," Martin, 527 U.S. at 358, and the district court did not err by applying the amended rule to this case.2 CONCLUSION The amendment to NSTR 27(b)(4) did not affect the parties' substantive rights but was instead a procedural rule change governing the

2We recognize otherjurisdictions have found that "substantive rights and obligations [regarding] attorney fees

. . . vest and accrue as of the time the underlying cause of action accrues," and therefore amendments to attorneyfee limitations alter the substantive rights ofthe parties. See, e.g., L. Ross, Inc. v. R.W. Roberts Constr. Co., 466 So. 2d 1096, 1098 (Fla. Dist. Ct. App. 1985), approved, 481 So. 2d 484 (Fla. 1986). But in our view, no party has a vested right in any amount of attorney fees through NSTR 27 until after the short trial, at whichpoint theprevailingpartyis determined. See Vested, Black's Law Dictionary (12th ed. 2024) ("Having become a completed, consummated right for present or future enjoyment; not contingent; unconditional; absolute

. . . .").

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OF NEVADA 10) 1947A 6available remedy. Thus, the short trial judge did not err by applying the

amended rule to this case. We therefore affirm thejudgment ofthe district court.

J. Parraguirre

We concur: 

# AlC1-4..0 J. Stiglich 

# P icked.

, J. Pickering

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