SUPREME COURT 

OF 

NEVADA 

130 Nev., Advance Opinion 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

JUN LIU, 

Appellant, 

vs. 

CHRISTOPHER HOMES, LLC, A 

NEVADA LIMITED LIABILITY 

COMPANY; AND CHRISTOPHER 

HOMES RIDGES, LLC, A NEVADA 

LIMITED LIABILITY COMPANY, 

Respondents. 

No. 61435 

FILED 

MAR 2 7 2014 

TRAC K. LINDEMAN 

CLE 0 SUP E E 

BY Ad" Oa 

C ER 

Appeal from a district court judgment in a real property 

action. Eighth Judicial District Court, Clark County; Susan Johnson, 

Judge. 

Affirmed in part, reversed in part, and remanded. 

Pengilly Robbins Slater and James W. Pengilly and Craig D. Slater, Las 

Vegas, 

for Appellant. 

The Hayes Law Firm and Dale A. Hayes, Jr., Las Vegas, 

for Respondents. 

BEFORE GIBBONS, C.J., DOUGLAS and SAITTA, JJ. 

OPINION 

By the Court, SAITTA, J.: 

The court in Sandy Valley Associates v. Sky Ranch Estates 

Owners Association stated that when a defendant's breach of contract with 

a plaintiff causes the plaintiff to incur attorney fees in his or her defense 

in a legal dispute that is brought by another party, the plaintiff can 

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recover from the defendant the attorney fees as damages that arose from 

the breach of the contract. 117 Nev. 948, 957, 35 P.3d 964, 970 (2001). 

The Sandy Valley court also stated, "Attorney fees may. . . be awarded as 

damages in those cases in which a party incurred the fee . . . in clarifying 

or removing a cloud upon the title to property." Id. The court in Horgan 

v. Felton retreated from this latter statement about the recovery of 

attorney fees in cloud-on-title cases, stating that "in cases concerning title 

to real property, attorney fees are only allowable as special damages in 

slander of title actions, not merely when a cloud on the title to real 

property exists." 123 Nev. 577, 579, 170 P.3d 982, 983 (2007). It held that 

slander of title was a prerequisite for a plaintiff to "recover as damages the 

expense of legal proceedings necessary to remove a cloud on the plaintiffs 

title." Id. at 584-85, 170 P.3d at 987. 

Here the district court relied on Horgan in denying appellant 

Jun Liu's specially pleaded request to recover attorney fees from 

respondents Christopher Homes Ridges, LLC (CHR), and Christopher 

Homes, LLC (CH), concluding that because the breach of contract related 

to title to real property, and because Liu failed to allege and prove slander 

of title, she could not recover the attorney fees that she sought as special 

damages. We conclude that the district court erred in rejecting as a 

matter of law Liu's claim for attorney fees as special damages, as Horgan 

does not apply to preclude such recovery here. Although Horgan held that 

slander of title must be pleaded as a prerequisite for a party to recover 

attorney fees as damages in an action to clarify or remove a cloud on title 

to real property, that opinion did not retreat from the portion of Sandy 

Valley which held that a party, such as Liu, may recover attorney fees 

incurred in defending against third-party litigation because of CHR's or 

CH's breach of contract. Horgan, 123 Nev. at 583-86, 170 P.3d at 986-88. 

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Accordingly, we reverse the district court's judgment to the extent that it 

• denied Liu's request for special damages and affirm all other aspects of the 

district court's judgment. We remand this matter to the district court for 

proceedings consistent with this opinion. 

FACTS AND PROCEDURAL HISTORY 

Liu's appeal only challenges the district court's legal 

determinations regarding the recovery of attorney fees as special damages. 

Thus, our discussion of the facts is based on the district court's findings of 

fact, which Liu does not contest or seek to undo on appeal. 

CHR was the developer of a residential community that hired 

CH as a general contractor for the construction of homes within its 

community CH subcontracted with K&D Construction, LLC, for various 

construction services. One of the homes upon which K&D performed its 

services was Liu's. Liu had purchased the home from CHR pursuant to a 

contract (the Agreement), wherein CHR agreed to convey good and 

marketable title to Liu at the close of escrow. As K&D performed its 

construction services at CHR's residential community, K&D was neither 

timely nor fully paid. As a result, K&D recorded liens on various 

properties within CHR's residential community, including Liu's property. 

In addition, K&D filed a civil action against CHR, CH, Liu, 

and other homeowners. In its complaint, K&D sought to foreclose on its 

liens on numerous properties, including Liu's property. Liu filed an 

answer to K&D's complaint and a cross-claim against CHR and CH. She 

asserted a breach of contract claim against CHR and CH, alleging that 

they breached their duty under the Agreement to deliver good and 

marketable title when they failed to pay the debts to K&D that resulted in 

a lien on her property. Under this claim, Liu tried to recover from CHR 

and CH the attorney fees and costs that she allegedly incurred in 

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defending herself against K&D's action. She also sought attorney fees 

that she incurred in prosecuting her claim for attorney fees. 

K&D, CHR, and CH entered into a stipulated agreement that 

resolved the payments of the outstanding balances owed to R&D, 

dismissed K&D's claims against Liu, and resulted in the discharge and 

removal of K&D's liens. After the dismissal of K&D's claims, Liu's claims 

against CHR and CH remained, including the claim to recover attorney 

fees as damages that allegedly arose from the breach of the Agreement. 

Before the district court, Liu contended that, pursuant to 

Sandy Valley, she could recover attorney fees as special damages that 

were caused by the breach of the Agreement by CH and CHR. The district 

court determined otherwise, concluding that CHR, not CH, possessed and 

breached a contractual duty to deliver good and marketable title to Liu 

when a lien was imposed on Liu's property because of unpaid debts to 

K&D. Relying on Horgan, the district court resolved that, as a matter of 

law, Liu could not recover attorney fees as special damages According to 

the district court's interpretation of Horgan, Liu was required to prove 

slander of title in order to recover attorney fees as special damages, which 

the district court found that she failed to do. As a result, Liu filed this 

appeal challenging the district court's determinations regarding the 

recovery of attorney fees as special damages. 

DISCUSSION 

Liu argues that the district court erred in relying on Horgan 

for its conclusion that her failure to assert and prevail on a slander of title 

claim prevented her from recovering attorney fees as special damages in 

an action that related to the title to real property. She contends that 

Horgan does not bar a party from recovering attorney fees as special 

damages when the civil action incidentally pertains to title to real 

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property. Liu reads Horgan to disallow attorney fees that stem from an 

action in which a claimant tries to remove a cloud on title but fails to 

prove slander of title. She emphasizes that she did not seek attorney fees 

as special damages from an action to remove a cloud on title but rather as 

special damages that resulted from CHR's breach of contract. Liu argues 

that Sandy Valley permits the recovery of attorney fees as special 

damages that arise from a breach of contract and thus her attorney fees 

claim below was not barred as a matter of law. 

CHR and CH respond that the district court did not err in 

finding against Liu on her claim for recovery of attorney fees as special 

damages. They read Horgan to provide that a party, such as Liu, who 

fails to assert and prevail on a slander of title claim in an action relating 

to the title to real property cannot recover attorney fees as special 

damages. 

These arguments indicate that there is confusion over (a) 

Sandy Valley's and Horgan's effect on the law regarding the recovery of 

attorney fees as special damages and (b) the extent to which Horgan 

retreated from Sandy Valley's discussion about the grounds for recovering 

attorney fees as special damages. We take this opportunity to clarify our 

precedent. In so doing, because the arguments concern the district court's 

application of caselaw to Liu's claims for attorney fees, we review these 

legal issues de novo.' See Thomas v. City of N. Las Vegas, 122 Nev. 82, 90, 

'In addition to the arguments above, CHR contends that the district 

court rejected Liu's claim for attorney fees for reasons other than its 

interpretation and application of caselaw, such as insufficient evidence to 

support Liu's claim that the breach of the Agreement caused her to incur 

attorney fees in defending herself against K&D's action. This contention 

continued on next page . . . 

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127 P.3d 1057, 1063 (2006) (providing that a denial of attorney fees is 

generally reviewed for abuse of discretion but that de novo review applies 

when an attorney fees matter concerns questions of law). 

Horgan's partial abrogation of Sandy Valley 

Generally, attorney fees are not recoverable "absent authority 

under a statute, rule, or contract." Albios v. Horizon Communities, Inc., 

122 Nev. 409, 417, 132 P.3d 1022, 1028 (2006). But, la] s an exception to 

the general rule," attorney fees may be awarded "as special damages in 

limited circumstances." Horgan, 123 Nev. at 583, 170 P.3d at 986. 

The court in Sandy Valley made three significant statements 

about the grounds for recovering attorney fees as special damages. 117 

Nev. at 956-57, 35 P.3d at 969-70. First, the court stated that attorney 

fees may be recovered as special damages when they are pleaded as such 

pursuant to NRCP 9(g) and are a "natural and proximate consequence of 

the injurious conduct." Id. at 956-57, 35 P.3d at 969. Second, the court 

explained that 

[alttorney fees may be an element of damage in 

cases when a plaintiff becomes involved in a 

third-party legal dispute as a result of a breach 

of contract .. . [and] [t]he fees incurred in 

defending. . . the third-party action could be 

damages in the proceeding between the plaintiff 

and the defendant [who breached the contract]. 

Id. at 957, 35 P.3d at 970. Third, the Sandy Valley court stated the 

following about the recovery of attorney fees as special damages in actions 

. . . continued 

lacks merit because the district court rejected Liu's attorney fees claim 

solely as a matter of law. 

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concerning a cloud on title to real property: "[alttorney fees may. ... be 

awarded as damages in those cases in which a party incurred the 

fees . . . in clarifying or removing a cloud upon the title to property." Id. 

The Horgan court revisited Sandy Valley in addressing a 

matter involving the recovery of attorney fees that were accumulated in 

seeking declaratory relief to remove a cloud on title to real property. 

Horgan, 123 Nev. at 579-80, 583-86, 170 P.3d at 983-84, 986-88. In 

clarifying Sandy Valley, the Horgan court retreated from the third 

statement above concerning the award of attorney fees in cloud-on-title 

actions. Horgan, 123 Nev. at 579, 588, 170 P.3d at 983, 988. In doing so, 

it did not retreat from the Sandy Valley court's position regarding the 

recovery of attorneyS fees as damages that are caused by injurious conduct 

or a breach of contract. Id. Disapproving of Sandy Valley's broad 

statement that "latttorney fees may. . . be awarded as damages in those 

cases in which a party incurred the fees . . . in clarifying or removing a 

cloud upon the title to property," the Horgan court stated that "in cases 

concerning title to real property, attorney fees are only allowable as special 

damages in slander of title actions, not merely when a cloud on the title to 

real property exists." Id. at 579, 583, 170 P.3d at 983, 986 (alterations in 

original) (second emphasis added) (quoting Sandy Valley, 117 Nev. at 957, 

35 P.3d at 970). When read in isolation, this statement conveys that in 

any action that merely relates to title, clarification of title, or removal of a 

cloud on title to real property, a party can recover attorney fees as special 

damages only if he or she asserts and prevails on a slander of title claim. 

See id. Thus, when read by itself, this statement appears to support the 

district court's determination that Liu could not recover attorney fees. 

However, the meaning and effect of Horgan cannot be 

ascertained by reading one statement to the exclusion of the rest of the 

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opinion. See Orr v. Allen, 248 U.S. 35, 36 (1918) (indicating that language 

in an opinion must not to be taken out of context or segregated from the 

remainder of the opinion); Mashpee Tribe v. New Seabury Corp., 592 F.2d 

575, 585 (1st Cir. 1979) ("Different sections of an opinion should be read as 

consistent with each other."). Rather, Horgan "must be read as a whole, 

without particular portions read in isolation, [so as] to discern the 

parameters of its holding." Fisher v. Big Y Foods, Inc., 3 A.3d 919, 926-27 

(Conn. 2010). 

The remainder of the Horgan court's opinion indicates that it 

did not hold that a party in any matter that relates to title to real property 

must prevail on a slander of title claim in order to recover attorney fees as 

special damages. 123 Nev. at 583-86, 170 P.3d at 986-88. Rather, the 

Horgan court contemplated a party's ability to recover attorney fees as 

special damages that were incurred in a specific type of civil action that is 

brought by that party: an action to clarify or remove a cloud on title. Id. 

The Horgan court stated that a "plaintiff may recover as 

damages the expense of legal proceedings necessary to remove a cloud on 

the plaintiffs title" when he or she prevails on a slander of title claim. Id. 

at 584-85, 170 P.3d at 987 (emphasis added). It stated that "attorney 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). In asserting these conclusions, the Horgan 

court primarily relied on authorities that permit the award of attorney 

fees as special damages to parties who brought claims to clarify or remove 

a cloud on title, accrued attorney fees in bringing those claims, and 

prevailed on a slander of title claim. See id. at 584-86, 170 P.3d at 987-88 

(citing: Wright v. Rogers, 342 P.2d 447, 449, 457 (Cal. Ct. App. 1959) 

(providing that in an action to remove a cloud on title, the plaintiff may 

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recover attorney fees as special damages if he or she prevails on a slander 

of title claim); Price v. Tyler, 890 So. 2d 246, 248-49, 251, 253 (Fla. 2004) 

(explaining that parties cannot recover attorney fees as special damages 

that were accrued in declaratory relief and quiet title actions absent a 

slander of title); Rayl v. Shull Enters., Inc., 700 P.2d 567, 573 (Idaho 1984) 

(concluding that a plaintiff who sought to remove a cloud on his title was 

entitled to attorney fees as special damages that arose from the slander of 

title); Paulson v. Kustom Enters., Inc., 483 P.2d 708, 715-16 (Mont. 1971) 

(remanding a matter to allow parties to recover attorney fees accrued in 

removing a cloud on title resulting from slander); Den-Gar Enters. v. 

Romero, 611 P.2d 1119, 1121, 1124 (N.M. Ct. App. 1980) (providing that 

plaintiffs who sought to remove a cloud on title through a quiet title action 

could recover attorney fees under a slander of title claim); Peckham v. 

Hirschfeld, 570 A.2d 663, 667-70 (R.I. 1990) (providing the same); Dowse v. 

Doris Trust Co., 208 P.2d 956, 958-59 (Utah 1949) (concluding that a 

plaintiff was entitled to special damages, including attorney fees, in an 

action to remove a cloud on his title because the defendant slandered it); 

and Rorvig v. Douglas, 873 P.2d 492, 494, 497-98 (Wash. 1994) (providing 

the same)). 

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Thus, the Horgan court's holding that one must prevail on a 

slander of title claim to recover attorney fees as special damages is one 

that applies to the recovery of attorney fees that are accrued from 

pursuing an action to clarify or remove a cloud on title. Generally, an 

action to clarify or remove a cloud on title is either an action in equity or 

an action for declaratory relief See MacDonald v. Krause, 77 Nev. 312, 

317-18, 362 P.2d 724, 727 (1961) (identifying actions to quiet title and to 

remove clouds on title as actions in equity); Kress v. Corey, 65 Nev. 1, 25- 

26, 189 P.2d 352, 363-64 (1948) (stating that a cloud on title may be 

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removed by a declaratory judgment). Hence, when discussing the recovery 

of attorney fees as damages that arose from actions to clarify or remove a 

cloud on title, the Horgan court was not concluding that a slander of title 

claim is a prerequisite to recovering attorney fees as special damages in 

all civil actions that relate to title to real property. See 123 Nev. at 579, 

583-86, 170 P.3d at 983, 986-88. Rather, as revealed by its language and 

the authorities it relied on, the Horgan court held that slander of title is a 

prerequisite to a party's recovery of attorney fees that were amassed in 

asserting claims to clarify or remove a cloud on title, such as declaratory 

or equitable relief claims. Id. 

In explaining its analysis and conclusions, the Horgan court 

stated that when a plaintiff incurs attorney fees as a result of a 

defendant's intentional effort to cloud title, the plaintiff deserves the fees 

because he or she had no choice but to litigate. Id. at 585-86, 170 P.3d at 

987-88. Otherwise, absent slander of title, the plaintiff shoulders the debt 

for the attorney fees that he or she risked accruing when deciding to 

clarify or remove a cloud on title by suing the defendant. See id. 

Here, Liu was not a plaintiff who incurred attorney fees by 

asserting equitable or declaratory relief claims to clarify or remove a cloud 

on title. Rather, she pleaded to recover attorney fees as special damages 

that she allegedly incurred defending against K&D's civil action as a 

result of CHR's breach of the Agreement. Thus, the attorney fees that Liu 

incurred in her defense against K&D's action and her claim for attorney 

fees were not within the purview of Horgan's requirement that a party 

who brought an action to clarify or remove a cloud on title must prove 

slander of title in order to recover the attorney fees that he or she incurred 

in the action. See Horgan, 123 Nev. at 583-86, 170 P.3d at 986-88. 

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The portion of Sandy Valley that Horgan did not overturn 

When revisiting and abrogating Sandy Valley, the Horgan 

court only overturned the analysis and conclusion in Sandy Valley that 

concerned the recovery of attorney fees that are accumulated in actions to 

clarify or remove a cloud on title to real property. Horgan, 123 Nev. at 

579, 583-86, 170 P.3d at 983, 986-88. The court did not retreat from 

Sandy Valley's conclusion that a party to a contract may recover, as 

special damages, the attorney fees that arise from another party's breach 

of the contract when the breach causes the former party to incur attorney 

fees in a legal dispute brought by a third party. See Horgan, 123 Nev. at 

579, 583-86, 170 P.3d at 983, 986-88 (omitting from its discussion Sandy 

Valley's language that concerns the recovery of attorney fees as special 

damages that arise from a breach of contract); Sandy Valley, 117 Nev. at 

957, 35 P.3d at 970. Thus, this portion of Sandy Valley was not undercut 

by Horgan. In unity with the various jurisdictions that have held the 

same, we maintain that a party to a contract may recover from a 

breaching party the attorney fees that arise from the breach that caused 

the former party to accrue attorney fees in defending himself or herself 

against a third party's legal action. See, e.g., Masonic Temple Ass'n of 

Crawfordsville v. Ind. Farmers Mitt. Ins. Co., 837 N.E.2d 1032, 1039 (Ind. 

Ct. App. 2005) (providing that when the defendant's breach of contract 

caused the plaintiff to engage in litigation with another party, the 

attorney fees from that litigation "may be recovered as an element 

of ... damages from [the] defendant's breach of contract"); Pac. Coast Title 

Ins. Co. v. Hartford Accident & Indem. Co., 325 P.2d 906, 907-08 (Utah 

1958) (providing the same); Fid. Nat'l Title Ins. Co. of N.Y. v. S. Heritage 

Title Ins. Agency, Inc., 512 S.E.2d 553, 558 (Va. 1999) (concluding that 

attorney fees incurred in litigation caused by a party's breach of contract 

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can be recovered as special damages); Kremers-Urban Co. v. Am. Emp'rs 

Ins, Co., 351 N.W.2d 156, 168 (Wis. 1984) (recognizing that attorney fees 

and expenses incurred in third-party litigation are recoverable "when they 

are the natural and proximate result of the breach of contract or other 

wrongful act" that caused the plaintiff to be involved in litigation with 

other parties). 

In light of the above, Sandy Valley permits, and Horgan does 

not bar, Liu's claim to recover attorney fees as special damages that were 

purportedly sustained in defending herself against K&D's suit, which was 

allegedly caused by CHR's breach of the Agreement. Accordingly, we hold 

that the district court erred in relying on Horgan to conclude that Liu 

cannot recover attorney fees as special damages. 2 

The district court must revisit Liu's claim for attorney fees 

Determining whether a party's breach of contract caused 

another party to incur attorney fees in defending himself or herself from a 

third party's complaint involves factual inquiries. See Frantz v. Johnson, 

2It appears that Liu also relies on Sandy Valley for the contention 

that she can recover attorney fees and costs that she incurred when 

prosecuting her claim against CHR to recover attorney fees as special 

damages—in addition to the attorney fees that she incurred when 

defending herself against K&D's action. Sandy Valley does not support 

this contention. See 117 Nev. at 957, 35 P.3d at 970. It only provides for 

the recovery of attorney fees as special damages that are incurred in 

defending against third-party litigation that is caused by a breach of 

contract. Id. Because Liu has not provided any other salient authority in 

support of her argument, we do not address the recovery of attorney fees 

and costs that are incurred when prosecuting a claim for attorney fees as 

special damages. Edwards v. Emperor's Garden Rest., 122 Nev. 317, 330 

n.38, 130 P.3d 1280, 1288 n.38 (2006) (providing that this court need not 

address an argument that is not cogently made). 

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116 Nev. 455, 468, 999 P.2d 351, 359 (2000) (indicating that causation is 

an issue of fact). In our appellate capacity, we do not resolve matters of 

fact for the first time on appeal. See Round Hill Gen. Improvement Dist. v. 

Newman, 97 Nev. 601, 604, 637 P.2d 534, 536 (1981) (noting that "an 

appellate court is not an appropriate forum in which to resolve disputed 

questions of fact"). 

'When the district court determined that Horgan barred Liu's 

claim to recover attorney fees as special damages, it also found that CHR 

breached its contract with Liu by leaving its debts to K&D unpaid. But, 

because it erroneously reasoned that Horgan disposed of Liu's attorney 

fees claim as a matter of law, the district court did not resolve whether the 

evidence before it proved that CHR's breach of the Agreement caused Liu 

to accumulate the attorney fees in defending her interests against K&D's 

suit. We do not resolve this factual issue that the district court did not 

reach, as doing so would require us to inappropriately weigh the evidence 

and resolve questions of fact for the first time on appeal. It is up to the 

district court on remand to resolve these questions. 

CONCLUSION 

In light of our analysis and determinations above, we reverse 

the district court's findings of fact, conclusions of law, and judgment on 

Liu's claim for the recovery of attorney fees as special damages that 

allegedly arose from CHR's breach of the Agreements All other aspects of 

3The dissent disagrees with our conclusions, relying on a 

concurrence in Horgan which noted that there are claims, other than 

slander of title, under which a party can recover attorney fees as special 

damages, such as "actions for malicious prosecution, abuse of process, 

wrongful attachment, trademark infringement, false imprisonment or 

arrest." 123 Nev. at 587, 170 P.3d at 988-89 (Maupin, J., concurring). The 

continued on next page . . . 

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, J. 

the district court's judgment are affirmed. We remand this matter for 

further proceedings that are consistent with this opinion. 

Saitta 

I concur: 

. . . continued 

dissent appears to conclude that because the Horgan concurrence did not 

include a breach of contract claim within its list, it is persuasive authority 

that attorney fees that arise from a breach of contract cannot be recovered 

as special damages. We disagree. We do not read the Horgan concurrence 

as conveying a comprehensive and exclusive list of claims on which a party 

can recover attorney fees as special damages. Rather, the Horgan 

concurrence stressed that the Horgan opinion did not preclude the 

recovery of attorney fees as special damages in circumstances other than 

those presented in that appeal. Id. In so doing, it offered examples of 

claims under which one may recover attorney fees. Id. Thus, like the 

Horgan concurrence, we conclude that Horgan does not bar the recovery of 

attorney fees in circumstances that are not addressed in Horgan, such as 

the circumstances that are present in this appeal. 

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C.J. 

GIBBONS, C.J., dissenting: 

As the majority notes, we concluded in Horgan v. Felton, 123 

Nev. 577, 579, 170 P.3d 982, 983 (2007), that "in cases concerning title to 

real property, attorney fees are only allowable as special damages in 

slander of title Actions, not merely when a cloud on the title to real 

property exists." In Horgan, the concurrence noted that there are other 

types of cases that allow attorney fees as damages, such as "actions for 

malicious prosecution, abuse of process, wrongful attachment, trademark 

infringement, false imprisonment or arrest." Id. at 587, 170 P.3d at 989 

(Maupin, J., concurring). Breach of contract is not one of the exceptions 

specified in Horgan and should fall into the same category as actions to 

quiet title. This would further address our concern in Horgan that the 

scope of real property cases where attorney fees are available as special 

damages was "inadvertently expanded." Id. at 586, 170 P.3d at 988. For 

this reason, I conclude that the district court• correctly interpreted the 

holding of Horgan, and I would affirm the district court's denial of 

attorney fees. 

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