88, 92, 787 P.2d 777, 779 (1990). If the sanction is not case concluding, the 

district court has the discretion to decide whether or not to hold an 

evidentiary hearing on the abusive litigation practices before imposing the 

sanction. Bahena v. Goodyear Tire & Rubber Co. (Bahena I), 126 Nev. , 

, 235 P.3d 592, 600-01 (2010). Thus, we conclude that the district court 

did not abuse its discretion in dismissing CSA's second amended 

complaint against A-1 and Air Design without an evidentiary hearing. 

These sanctions were not case concluding and were appropriate remedial 

measures for CSA's inappropriate litigation practices that compromised 

the evidence. 

After considering CSA's issues on appeal, we conclude that in 

addition to the sanctions against CSA, two other issues warrant 

discussion, while the remaining issues lack merit. First, CSA contests the 

district court's order granting A- l's motion in limine barring construction 

defect evidence at the special master's hearing. Second, CSA challenges 

the appointment of the special master to determine the lien amounts and 

adoption of the master's report. We conclude that the district court did not 

abuse its discretion in granting A-1's motion in limine. It allowed CSA to 

prove offsets against A-1 before the special master while appropriately 

barring CSA from proffering construction defect evidence, since CSA had 

compromised that evidence. Also, we conclude that the district court did 

not abuse its discretion in appointing the special master to determine the 

lien amounts because NRS 108.239(7) and NRCP 53(c) permitted this 

appointment. Nor did it abuse its discretion in adopting the special 

master's report because, given CSA's failure to object under NRCP 

53(e)(2), the district court had the discretion to determine that the report 

was not clearly erroneous and to adopt it. 

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Factual and procedural background 

After being contracted by CSA to improve CSA's properties, a 

general contractor enlisted the services of A-1, Air Design, and respondent 

JD Construction, Inc. A-1 retained respondent Loftin Equipment to 

supply equipment. Suspecting improprieties in the performance of the 

general contractor's and subcontractor's work, CSA fired the general 

contractor and did not allow its subcontractors to return to the job site. 

After not being fully paid for their work, A-1, Air Design, JD, and Loftin 

filed mechanics' liens against CSA's property. 

CSA filed a complaint against the general contractor, and A-1, 

Air Design, JD, and Loftin filed complaints against CSA to foreclose on 

their mechanics' liens. CSA amended its initial complaint, adding Air 

Design and A-1 as defendants and asserting contract and tort-based 

claims based on allegedly deficient and incomplete work. Ultimately, the 

district court consolidated the various cases that arose from the parties' 

claims against each other. The district court bifurcated CSA's claims 

against the general contractor from the remaining claims by CSA and the 

other parties and referred the mechanics' lien claimants to a special 

master to determine the amount and priority of the mechanics' liens. 

CSA filed a second amended complaint, asserting contract and 

tort-based claims against A-1 and Air Design on the basis of construction 

defects and non-performance. In support of its claims, CSA submitted 

documents to show the work that subsequent contractors performed in 

order to remedy the defects. 

A-1 filed a motion to dismiss the second amended complaint 

or, in the alternative, for summary judgment on the basis that CSA 

engaged in spoliation of the evidence as to A-1's work. A-1 alleged that it 

3 
lacked the opportunity to obtain evidence of its allegedly faulty work 

because CSA prohibited it from returning to the job site and hired 

contractors to remedy A-1's work. Air Design filed a joinder to A-1's 

motion to dismiss and submitted an affidavit of CSA's architect, which 

revealed that subsequent work, including demolition, was performed in 

the areas where Air Design had allegedly produced faulty work. 

After hearings on A-1's and Air Design's motions, the district 

court determined that spoliation justified a dismissal of CSA's 

construction defect claims and it granted summary judgment in favor of A1 and Air Design on all claims that CSA asserted against them in the 

second amended complaint. As a result, CSA lacked any remaining claims 

against A-1 and Air Design, but the case continued because there 

remained the subcontractors' complaints against CSA to foreclose on their 

mechanics' liens. 

Before the special master's hearing on the mechanics' liens 

against CSA, A-1 filed a motion in limine to exclude testimony by CSA's 

experts regarding alleged defects and remedial repairs performed upon Al's work because the district court already found that CSA compromised 

the construction defect evidence. The district court granted A-1's motion, 

providing that "construction defect issues should not be heard by . . . 

[Special Master] Bell and the motion is granted to the extent that it 

precludes anything dealing with construction defect." 

The special master held a hearing with the lien claimants and 

CSA and determined the amounts owed by CSA. Thereafter, JD, A-1, and 

Loftin filed motions to adopt the special master's determinations. Air 

Design filed a joinder to A-1's motion. In the absence of an objection by 
CSA to the special master's findings, the district court granted the 

motions. 

After a hearing by the special master determining the priority 

of the liens, the district court entered a final judgment against CSA on the 

amount and priority of the mechanics' liens. CSA subsequently appealed. 

The sanctions against CSA for its spoliation of the evidence 

CSA contends that the district court abused its discretion in 

dismissing CSA's complaints against A-1 and Air. Design on the basis of 

spoliation, arguing that the district court should have held an evidentiary 

hearing on spoliation of the evidence before doing so. We disagree. 

Generally, a district court's discovery sanctions will not be 

reversed unless there has been an abuse of discretion. Foster v. Dingwall, 

126 Nev. „ 227 P.3d 1042, 1048 (2010). If the sanction imposed is 

that of dismissal with prejudice, a somewhat heightened standard of 

review applies. Id, Generally, NRCP 37 provides for discovery sanctions 

for a party's willful violation of a discovery order. Young v. Johnny Ribeiro 

Bldg., Inc., 106 Nev. 88, 92, 787 P.2d 777, 779 (1990). But it is within the 

district court's "inherent equitable powers" to dismiss an action for 

abusive litigation practices not listed under a statute. Id. (quoting 

TeleVideo Sys., Inc. v. Heidenthal, 826 F.2d 915, 916 (9th Cir. 1987)). 

As an exercise of the district court's equitable powers, 

discovery sanctions must be "just and . . . relate to the claims at issue." 

Foster, 126 Nev. at , 227 P.3d at 1048. Dismissal of a party's complaint 

as a sanction does not need to be "preceded by other less severe sanctions, 

[but] it should be imposed only after thoughtful consideration of all the 

factors involved in a particular case." Bahena v. Goodyear Tire & Rubber 

Co. (Bahena 1), 126 Nev. 235 P.3d 592, 598 (2010) (quoting 

5 
Young, 106 Nev. at 92, 787 P.2d at 780). In considering dismissal as a 

discovery sanction, the district court may weigh 

"the degree of willfulness of the offending party, 

the extent to which the non-offending party would 

be prejudiced by a lesser sanction, the severity of 

the sanction of dismissal relative to the severity of 

the discovery abuse, whether any evidence has 

been irreparably lost, the feasibility and fairness 

of alternative, less severe sanctions . . . , the policy 

favoring the adjudication on the merits, whether 

sanctions unfairly operate to penalize a party for 

the misconduct of his or her attorney, and the 

need to deter. . . similar abuses." 

Bahena I, 126 Nev. at , 235 P.3d at 598 (quoting Young, 106 Nev. at 93, 

787 P.2d at 780). If the dismissal is not a case-concluding sanction, then 

the district court has the discretion to determine the nature and extent of 

the hearing that precedes the sanction. Id. at , 235 P.3d at 600-01. A 

case-concluding sanction is one that results in the conclusion of the case, 

the offending party being "out of court," and an appeal being the offending 

party's only recourse. Bahena v. Goodyear Tire & Rubber Co. (Bahena II), 

126 Nev . 245 P.3d 1182, 1186 (2010). 

Dismissal is a proper sanction where a plaintiff possesses the 

evidence at issue but disposes of it before filing a complaint. See Stubli u. 

Big D Int'l Trucks, Inc., 107 Nev. 309, 313-14, 810 P.2d 785, 787-88 (1991) 

(providing that dismissal was appropriate in a similar situation where 

evidence was irreparably lost). Before litigation, a party must preserve 

items that are "reasonably calculated to lead to the discovery of admissible 

evidence." Bass-Davis v. Davis, 122 Nev. 442, 450, 134 P.3d 103, 108 

(2006). A party in control of the evidence is required to preserve it once 

litigation is reasonably foreseeable. Id. 

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Here, the very evidence that CSA relied upon for its claims 

revealed its acts of spoliation. CSA submitted a memorandum drafted by 

a third party that identified deficiencies in A-1's work, and CSA hoped to 

use this as the basis for its claims, but that very memorandum also 

revealed that subsequent subcontractors remedied the alleged deficiencies. 

CSA also submitted work orders and invoices revealing the same. Hence, 

CSA disposed of the evidence as to A-1's work, such that there was no way 

for the subcontractors to independently have their work evaluated for 

defects. Further, much of this remedial work occurred before CSA filed its 

claims and before A-1 learned of the claims asserted against it; thus, CSA 

foreclosed A-1's opportunity to gather evidence for its defense. 

CSA engaged in similar acts as to Air Design's work. The 

work orders of subsequent subcontractors showed that CSA compromised 

the evidence of Air Design's work. A deposition by CSA's architect 

provided that, after the termination of the initial contract, demolition and 

repair work occurred in the area where Air Design had worked. Since Air 

Design did not perform any work after CSA terminated the general 

contractor, it too was precluded for gathering evidence it could use for its 

defense. 

Adjudicating the construction defect claims would have given 

CSA the unfair advantage of being the only party who had the opportunity 

to collect and review evidence of the allegedly defective work. Thus, the 

district court did not abuse its discretion in dismissing CSA's complaints 

against A-1 and Air Design as this was the appropriate response to CSA's 

inappropriate litigation practices. 

As the sanctions against CSA did not end the case, the district 

court did not need to hold an evidentiary hearing on spoliation before 

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imposing the sanctions. After the imposition of the sanctions against CSA, 

the case continued because subcontractor's mechanics' liens remained for 

resolution by the special master and the district court. Moreover, the 

district court did not entirely deny CSA the chance to rebut the allegations 

of spoliation before imposing the sanctions. The district court held 

hearings on A-1's and Air Design's motions; these hearings afforded CSA a 

chance to contest the allegations of spoliation. 

The order granting A-1's motion in limine 

CSA argues that the district court abused its discretion in 

granting A-1's motion in limine, contending that the district court 

improperly excluded an expert's report showing that A-1 did not complete 

its work. We disagree. 

The district court has wide discretion in determining 

admissible evidence. State ex rel. Dep't of Highways v. Nev. Aggregates & 

Asphalt Co., 92 Nev. 370, 376, 551 P.2d 1095, 1098 (1976). A motion in 

limine may be used to exclude or admit evidence. See EDCR 2.47. 

Here, contrary to CSA's arguments, the district court's order 

granting A-1's motion in limine did not preclude CSA from presenting 

evidence of offsets against A-1; the order only barred CSA from using 

evidence of construction defects. CSA could have presented any other 

evidence to show that A-1 did not complete its work, including a redacted 

version of its expert report, so long as the evidence did not pertain to 

construction defects. Thus, the district court did not abuse its discretion 

in granting A-1's motion in limine because it allowed CSA to prove offsets 

8 
against A-1 while barring construction defect evidence that CSA 

compromised.' 

The appointment of the special master and the adoption of his report 

CSA contends that the district court delegated too much power 

to the special master and that, because the litigation was so complex, it 

should not have adopted the special master's report. We disagree. 

We review the appointment of a special master for an abuse of 

discretion. Russell v. Thompson, 96 Nev. 830, 835, 619 P.2d 537, 540 

(1980). The abuse of discretion standard also applies to the district court's 

review and adoption of the special master's report. Venetian Casino 

Resort, LLC v. Eighth Judicial Dist. Court, 118 Nev. 124, 132, 41 P.3d 327, 

332 (2002). 

The appointment of the special master 

NRS 108.239(7) permits the use of special masters in 

mechanics' lien cases. It provides, in pertinent part, that "[t]he court shall 

. . . , by decree, proceed to hear and determine the claims in a summary 

way, or may, if it be the district court, refer the claims to a special master 

to ascertain and report upon the liens and the amount justly due thereon." 

NRS 108.239(7). 

1CSA also contests the order granting JD's motion in limine, which 

barred CSA from using construction defect evidence at the special master 

hearing on JD's lien amount. We are unable to address this issue as CSA 

failed to offer this court a citation to the hearing transcript underlying the 

order and the order's language. NRAP 28(a)(9) (stating that an appellant 

must cite to the record upon which it relies); NRAP 30(b)(1) and (3) 

(requiring an appellant to include all necessary materials, including 

transcripts, that are necessary for reviewing the issues). 

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These masters "regulate all proceedings . . . and . . . do all acts 

and take all measures necessary or proper for the efficient performance of 

the master's duties under the order." NRCP 53(c). They are appointed 

when necessary and "in matters of account and of difficult computation of 

damages . . . upon a showing that some exceptional condition requires it." 

NRCP 53(b). In lien matters, the special master may only report on the 

liens and the amount due, whereas the district court determines the lien's 

validity. Venetian, 118 Nev. at 130, 41 P.3d at 330. Further, when the 

district court reviews the special master's findings and recommendations, 

it does so under a clearly erroneous standard. Id. at 132, 41 P.3d at 331- 

32; see also NRCP 53(e)(2). The district court reviews the conclusions of 

law de novo. Venetian, 118 Nev. at 132, 41 P.3d at 331-32. 

Here, the district court assigned a special master to resolve 

"the calculation, computation of damages, and amount owing, including 

principal, interest, attorney's fees and lien costs, as to each lien claimant." 

It also directed the master to determine the liens' priority. The district 

court did not direct the master to ascertain the liens' validity. Thus, it did 

not improperly delegate its duties to the special master. See id. at 130, 41 

P.3d at 330. 

CSA concedes that the litigation was a complex civil matter 

with various parties and claims. These situations are exactly the type 

where it is proper to use a special master because "litigation involves 

matters of account that would reach substantial proportions and would 

potentially consume an inordinate amount of judicial resources." Id. at 

128, 41 P.3d at 329. Hence, the district court did not abuse its discretion 

in appointing the special master to determine the amounts due on the 

mechanics' liens. 

10 
The adoption of the special master's report 

Following the special master's hearing, the master must 

submit a report to the district court, including findings of fact and 

conclusions of law. NRCP 53(e)(1). In cases not tried before a jury, "the 

court shall accept the master's findings of fact unless clearly erroneous." 

NRCP 53(e)(2). If any party makes an objection within ten days after 

being served with the master's findings, the district court, "after [a] 

hearing[,] may adopt the report or may modify it or may reject it in whole 

or in part or may receive further evidence or may recommit it with 

instructions." Id. 

Here, CSA failed to object to the special master's findings 

under NRCP 53(e)(2). As a result, the district court considered the special 

master's report, determined that the report was not clearly erroneous, and 

adopted it. The record does not include any indication that the report was 

clearly erroneous. Thus, the district court did not abuse its discretion in 

adopting the special master's report. 2 

2Also, we disagree with CSA's contentions that the district court 

erred in adopting the special master's report, that NRCP 53(e)(3) only 

allows for a report to be read to the jury, and that CSA lacked the 

opportunity to present evidence of any offsets. Although NRCP 53(e)(3) 

allows for a report to be read to the jury in jury actions, it does not apply 

in a case with no jury, such as this. Further, there is no right to a jury 

trial in foreclosure of mechanics' liens. Close v. Isbell Constr. Co., 86 Nev. 

524, 529, 471 P.2d 257, 261 (1970) (explaining that a jury may not be 

claimed in matters of equity and that foreclosure of mechanics' liens is an 

equity matter). Therefore, although a jury trial may have been requested 

with regard to CSA's construction defect and/or fraud claims, the 

mechanics' liens issues were to appropriately be conducted via a bench 

trial. Also, CSA had the opportunity to present evidence of offsets before 

continued on next page . . . 

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1947A 
Douglas 

Saitta 

Conclusion 

In light of the above, and since we have considered CSA's 

remaining contentions and concluded that they lack merit, we 

ORDER the judgment of the district court AFFIRMED. 

Gibbons 

J. 

cc: Hon. Kathleen E. Delaney, District Judge 

Patti, Sgro & Lewis 

Hitzke & Associates 

Susan Frankewich, Ltd. 

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP/Las Vegas 

Gordon & Rees, LLP 

Eighth District Court Clerk 

. . . continued 

the special master; it was only precluded from using construction defect 

evidence in doing so. 

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