IN THE SUPREME COURT OF THE STATE OF NEVADA 

C & A INVESTMENTS, L.L.C., 

Appellant, 

vs. 

JIANGSON DUKE, LLC; BANK OF 

UTAH, NOT INDIVIDUALLY, BUT 

SOLELY AS REMAINDERMAN 

TRUSTEE UNDER REMAINDERMAN 

TRUST AGREEMENT (1995-2), DATED 

AS OF JUNE 13, 1995, AS SUCCESSOR 

TRUSTEE TO WELLS FARGO TRUST 

COMPANY, N.A. (FORMERLY KNOWN 

AS WELLS FARGO BANK NORTHWEST, 

N.A., FORMERLY KNOWN AS FIRST 

SECURITY BANK OF UTAH, N.A.); AND 

NORTHERN NEVADA COMSTOCK 

INVESTMENTS, LLC, 

Res • ondents. 

C & A INVESTMENTS, L.L.C., 

Appellant/Cross-Respondent, 

vs. 

JIANGSON DUKE, LLC; AND 

NORTHERN NEVADA COMSTOCK 

INVESTMENTS, LLC, 

Respondents/Cross-Appellants, 

and 

BANK OF UTAH, NOT INDIVIDUALLY, 

BUT SOLELY AS REMAINDERMAN 

TRUSTEE UNDER REMAINDERMAN 

TRUST AGREEMENT (1995-2), DATED 

AS OF JUNE 13, 1995, AS SUCCESSOR 

TRUSTEE TO WELLS FARGO TRUST 

COMPANY, N.A. (FORMERLY KNOWN 

AS WELLS FARGO BANK NORTHWEST, 

N.A., FORMERLY KNOWN AS FIRST 

SECURITY BANK OF UTAH, N.A.) 

Res ondent/Cross-Res i ondent. 

No. 79881 

MED 

OCT 1 1 2022 

ELIZADE -i À. BROWN 

CL F RREME COUP 

CLERK 

No. 83279 

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ORDER AFFIRMING (DOCKET NO. 79881), AND 

AFFIRMING IN PART, REVERSING IN PART, AND REMANDING 

(DOCKET NO. 83279) 

These are consolidated appeals from a final judgment following 

a bench trial in a real property dispute and postjudgment orders denying 

attorney fees, awarding costs, and denying a motion to set aside the 

judgment under NRCP 60(b)(5) and (6). First Judicial District Court, 

Carson City; William A. Maddox, Senior Judge.' 

The dispute arises from a Reciprocal Easement and Operation 

Agreement (REOA) that places restrictive covenants on the Northtown 

Plaza (Plaza) located in Carson City, Nevada. C & A Investments sued to 

invalidate the REOA restrictions. After a bench trial, the district court 

entered a final judgment in favor of defendants Jiangson Duke, LLC 

(Jiangson) and Northern Nevada Comstock Investments, LLC (Cornstock). 

C & A appealed from the final judgment (Docket No. 79881). Thereafter, it 

also moved for relief from the judgment under NRCP 60(5) and (6), and 

Jiangson and Comstock filed motions for attorney fees and costs. The 

district court granted in part the motions for costs but denied the motion for 

attorney fees and the NRCP 60(b) motion. C & A appealed from the order 

denying the NRCP 60(b) motion, and Comstock appealed from the orders 

denying attorney fees and partially denying costs.2

'Pursuant to NRAP 34(1)(1), we have determined that oral argument 

is not warranted. 

2Jiangson filed a joinder in support of Comstock's arguments 

regarding attorney fees only. 

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Appeal from the final judgrnent (Docket No. 79881) 

In its appeal from the final judgment, C & A first argues that 

the district court erred by finding that it had not demonstrated changed 

conditions to warrant invalidating the REOA.3 A restrictive covenant like 

those in the REOA becomes unenforceable when "changed conditions have 

so thwarted the purpose of the . . . limitation that it is of no appreciable 

value to other property owners and it would be inequitable or oppressive to 

enforce the restriction." Gladstone v. Gregory, 95 Nev. 474, 478, 596 P.2d 

491, 494 (1979); Wallace v. St. Clair, 127 S.E.2d 742, 757 (W. Va. 1962) 

("Changed conditions of the neighborhood will not defeat enforcement of a 

restrictive covenant unless the changes are so radical as practically to 

destroy the essential objects and purposes of the agreement." (quoting 

Rornbauer v. Cornpton Heights Christian Church, 40 S.W.2d 545, 553 (Mo. 

1931))); see also Restatement (Third) of Property (Servitudes) § 7.10 cmt. a 

(2000) (explaining that "Nile test is stringent: relief is granted only if the 

purpose of the servitude can no longer be accornplished[,] . . . serve[s] no 

useful purpose, and would create unnecessary harm to the owner of the 

servient estate"; and further urging courts to "apply the changed-conditions 

doctrine with caution"). "As long as the original purpose of the covenants 

3C & A alternatively argues that the REOA does not restrict gaming. 

The district court did not resolve this argument—it denied C & A's NRCP 

15(b) motion to include this claim in its complaint because the claim was 

not timely raised or tried by consent. Because the district court did not 

resolve this claim and because C & A does not challenge the denial of its 

NRCP 15(b) motion, we decline to consider C & A's argument that the REOA 

does not restrict gaming. See 9352 Cranesbill Tr. v. Wells Fargo Bank, N.A., 

136 Nev. 76, 82, 459 P.3d 227, 232 (2020) (declining to address an issue that 

the district court did not resolve); Powell v. Liberty Mut. Fire Ins. Co., 127 

Nev. 156, 161 n.3, 252 P.3d 668, 672 n.3 (2011) (concluding that issues not 

raised on appeal are generally deemed waived). 

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can still be accomplished and substantial benefit will inure to the restricted 

area by their enforcement, the covenants stand even though the subject 

property has a greater value if used for other purposes." W. Land Co. v. 

Truskolaski, 88 Nev. 200, 205, 495 P.2d 624, 627 (1972) (quoting W. 

Alameda Heights Homeowners Ass'n v. Bd. of Cty. Cornin'rs, 458 P.2d 253, 

256 (Colo. 1969)); see also Gladstone, 95 Nev. at 479, 596 P.2d at 494 

(holding that an increased monetary value without the restriction did not 

justify invalidating the restriction based on changed conditions). 

In reviewing the district court's judgment, we give deference to 

its factual findings that are supported by substantial evidence but review 

its legal conclusions de novo. See W. Land Co., 88 Nev. at 205, 495 P.2d at 

627 (reviewing the district court's factual findings for substantial evidence 

supporting its decision regarding the enforceability of a restrictive 

covenant); see also U.S. Bank, Nat'l Ass'n ND v. Res. Grp., LLC, 135 Nev. 

199, 200-01, 444 P.3d 442, 445 (2019) (reviewing a "district court's legal 

conclusions de novo but giv[ing] deference to its factual findings unless they 

are clearly erroneous or not supported by substantial evidence"). Here, the 

trial evidence supports the district court's decision. The stated purpose of 

the REOA restrictions is to provide for the "operation and maintenance 

thereon of retail mercantile businesses, financial institutions and related 

facilities common to family-type retail shopping centers." The evidence 

reflected that, since 1999, C & A has continuously leased space in the Plaza 

to family-oriented, retail commercial businesses. Additionally, trial 

testimony showed the property owners benefited from the restrictions tying 

the properties together by creating a theme for the Plaza and the types of 

services available there and giving tenants confidence regarding the type of 

future tenants they could expect at the Plaza. Further evidence showed 

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that the combination of these factors increased the market value of the 

properties at the Plaza. Although the court heard evidence regarding the 

economic recession that hit retail commercial businesses in the area 

beginning in 2006, it also heard evidence that the area was recovering and 

would return to historic norms within a few years. Thus, substantial 

evidence supports the district court's findings that the REOA's purpose "has 

not been thwarted because the Plaza remains a viable family-oriented 

retail/commercial shopping center," and that the REOA's restrictions 

continue to benefit the parcel owners. 

Lastly, the record reflects that enforcing the REOA restrictions 

would not be inequitable or oppressive because, as the district court found, 

C & A was on notice of several factors affecting the Plaza when it acquired 

its interest in the Plaza and C & A knew of the restrictions when it entered 

into the REOA. See Wood v. Dozier, 464 So. 2d 1168, 1170 (Fla. 1985) 

(holding that even if changed conditions "would ordinarily be sufficient to 

grant relief from enforcing the covenants," the fact that the party was on 

notice when he purchased the property precluded relief (quoting Allen v. 

Avondale Co., 185 So. 137, 138 (Fla. 1938))). For example, when acquiring 

its interest in the Plaza, C & A knew that Krnart was experiencing financial 

difficulties nationally—ultimately leading to store closures and bankruptcy. 

C & A was also aware that a freeway bypass was going to be constructed 

around Carson City, and that traffic to the Plaza would diminish once that 

opened. And while the restrictions may prohibit a more profitable use of 

the property, that is an insufficient basis to invalidate the restrictions under 

the doctrine of changed conditions. See Truskolaski, 88 Nev. at 205, 495 

P.2d at 627. 

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C & A next argues that the district court erred by not finding 

abandonment of the REOA restrictions based on prior violations of those 

restrictions. To support a finding of abandonment, a party must show 

violations of the restrictions that are so substantial and general that they 

"frustrate the original purpose of the agreement." W. Land Co., 88 Nev. at 

207, 495 P.2d at 628. Furthermore, abandonment "must be established by 

clear and unequivocal evidence of acts of a decisive nature." Tornpkins v. 

Buttrum Constr. Co. of Neu., 99 Nev. 142, 145, 659 P.2d 865, 867 (1983) 

(quoting Lindner v. Woytowitz, 378 A.2d 212, 216 (Md. Ct. Spec. App. 1977)). 

As evidence of abandonment, C & A alleged that the restrictions had been 

violated in five instances. The first two alleged violations include a 

nonprofit tenant that supplies food to local children and a pizza parlor, both 

of which purportedly violate the REOA restriction on certain food providers. 

The remaining three alleged violations include a fitness center located in a 

portion of the abandoned anchor tenant building, gaining machines in the 

anchor tenant building until 2003, and gaming machines currently in a 

tenant restaurant. Notably, the gaming machines at issue were operated 

under a limited gaming license that permits no more than fifteen gaming 

machines. These violations, even taken together, neither frustrate the 

Plaza's ability to operate and maintain "retail mercantile businesses, 

financial institutions and related facilities comrnon to family-type retail 

shopping centers,' nor do they constitute "clear and unequivocal evidence 

of acts" to abandon the restrictions, Tompkins, 99 Nev. at 145, 659 P.2d at 

867. We thus conclude that these violations, occurring over the span of 

nearly three decades, do not equate to abandonment because they were not 

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"so general as to frustrate the original purpose" of the agreement.4 See W. 

Land Co., 88 Nev. at 207, 495 P.2d at 628. Thus, we affirm the final 

judgment. 

Appeal frorn the order denying the NRCP 60(b) motion (Docket No. 83279) 

C & A argues that the district court erred by denying its motion 

for relief from the judgment under NRCP 60(b)(5) and (6) because it did not 

apply the correct standards.5 Reviewing for an abuse of discretion, .see 

Rodriguez v. Fiesta Palms, LLC, 134 Nev. 654, 656, 428 P.3d 255, 257 (2018) 

(holding that we review a district court's NRCP 60(b) determination for an 

abuse of discretion), holding modified on other grounds by Willard v. BerryHinckley Indus., 136 Nev. 467, 469 P.3d 176 (2020), we agree, see In re 

4Because we conclude that the violations do not support a finding of 

abandonment, we need not address the district court's application of the 

REOA's non-waiver provision. 

5Contrary to Comstock's argument, we conclude that C & A timely 

filed its motion. The final judgment was predicated, at least in part, on 

testimony that the economy in the area would bounce back within a year or 

two. C & A took on that prediction in its NRCP 60(b) motion with an 

affidavit from a cornmercial real estate agent, stating that conditions had 

deteriorated, not improved, over that time. Given the basis for the motion, 

it was filed within a reasonable time for purposes of NRCP 60(b)(5) and (6). 

See NRCP 60(b)(5), (6) (requiring that motions filed under those subsections 

be filed within "a reasonable time"); United States v. Holtzman, 762 F.2d 

720, 725 (9th Cir. 1985) (holding that "[w]hat constitutes reasonable time 

[under FRCP 60(b)(5) and (6)] depends on the facts of each case" and citing 

a case holding that there is "no outside time limit on reasonable time," and 

several others concluding that motions filed within four to six years were 

not unreasonable); cf. McClendon v. Collins, 132 Nev. 327, 330, 372 P.3d 

492, 494 (2016) (noting that the "fflederal cases interpreting the Federal 

Rules of Civil Procedure are strong persuasive authority, because the 

Nevada Rules of Civil Procedure are based in large part upon their federal 

counterparts" (internal quotation marks omitted)). 

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Halverson, 123 Nev. 493, 510, 169 P.3d 1161, 1173 (2007) (recognizing that 

a district court "abuses its discretion when, among other things, it applies 

an incorrect legal standard"). 

Here, the district court denied C & A's NRCP 60(b) motion 

relying on the test outlined in Gladstone v. Gregory, 95 Nev. 474, 596 P.2d 

491 (1979) for whether changed conditions justify nonenforcement of an 

otherwise valid restrictive covenant. However, under NRCP 60(b)(5), the 

district court must address the threshold issue of whether the judgment is 

prospective in nature. See NRCP 60(b)(5) (providing that the district court 

may relieve a party. .. from a final judgment" where, in relevant part, 

applying it prospectively is no longer equitable"); Maraziti v. Thorpe, 52 

F.3d 252, 254 (9th Cir. 1995) (explaining the standard used in determining 

whether a judgment has prospective application for purposes of FRCP 

60(b)); cf. McClendon v. Collin.s, 132 Nev. 327, 330, 372 P.3d 492, 494 (2016). 

And if the judgment has prospective application, the court then must 

determine whether the facts warrant relief from the judgment under NRCP 

60(b)(5). That inquiry is fact intensive. Brown v. Tenn. Dep't of Fin. & 

Admin., 561 F.3d 542, 545 (6th Cir. 2009) ("Whether prospective 

enforcement is no longer equitable under Rule 60(b)(5) is a fact-intensive 

inquiry within the broad equitable powers of a district court."). The district 

court, thus, abused its discretion by applying the incorrect legal standard. 

In re Halverson, 123 Nev. at 510, 169 P.3d at 1173. 

Additionally, if C & A is not entitled to relief under NRCP 

60(b)(5), the district court had to determine whether, under NRCP 60(b)(6), 

any other reason [justified] relief." See Vargas v. J Morales Inc., 138 Nev., 

Adv. Op. 38, 510 P.3d 777, 781 (2022) (holding "that relief may not be sought 

under NRCP 60(b)(6) when it would have been available under NRCP 

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60(b)(1)-(5)"). The district court did not do so here. Specifically, the district 

court did not conduct a fact-intensive inquiry to determine whether the case 

meets the "exceptional or extraordinary circumstances" that would justify 

NRCP 60(b)(6) relief. Blue Diamond Coal Co. v. Trs. of UMWA Combined 

Benefit Fund, 249 F.3d 519, 529 (6th Cir. 2001) (providing that courts must 

"intensively balance numerous factors" when considering FRCP 60(6)(6)'s 

application); cf. McClendon, 132 Nev. at 330, 372 P.3d at 494. We therefore 

reverse the district court's order denying the NRCP 60(b) motion and 

remand for the district court to apply the relevant standards under NRCP 

60(b)(5) and (6) in the first instance and to conduct an evidentiary hearing, 

if necessary. See Borhan v. Allison, 541 F. App'x 740, 741 (9th Cir. 2013) 

(remanding for the district court to hold an FRCP 60(b)(6) evidentiary 

hearing to resolve factual issues in the first instance). 

Appeal from the postjudgrnent orders regarding attorney fees and costs 

(Docket No. 83279) 

Jiangson and Comstock argue that the district court 

erroneously determined that the REOA did not provide a basis for attorney 

fees. In particular, they argue that they were the prevailing parties and the 

attorney fee provision broadly permits recovery in "any action to enforce" 

the RE0A.6 We conclude that the attorney fee provision may be interpreted 

6Comstock and Jiangson further argue that it is irrelevant whether 

the attorney fees here were incurred offensively or defensively. However, 

they rely on distinguishable authority that addresses a California statute 

that permitted a prevailing party to recover attorney fees incurred in 

enforcing a contract regardless of "whether he or she is the party specified 

in the contract or not." Shadoan v. World Say. & Loan Ass'n, 268 Cal. Rptr. 

207, 212 (Ct. App. 1990) (citing Cal. Civ. Code § 1717(1)). Unlike the 

California statute at issue in Shadoan, NRS 18.010(1) limits attorney fees 

as prescribed by the parties' agreement. NRS 18.010(1) ("The compensation 

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in two ways: (1) that a party may recover attorney fees only when filing an 

action to enforce the REOA or (2) that a party also may recover attorney 

fees when the REOA is used as a defense, such as here. The contractual 

provision therefore is ambiguous. Anvui, LLC u. G.L. Dragon, LLC, 123 

Nev. 212, 215, 163 P.3d 405, 407 (2007) (holding that a contract is 

ambiguous if it may reasonably be interpreted in more than one way). 

Given that ambiguity, we conclude that the district court did not abuse its 

discretion by denying the request for attorney fees. See Pardee Homes of 

Nev. v. Wolfram, 135 Nev. 173, 176, 444 P.3d 423, 425-26 (2019) (reviewing 

the denial of attorney fees for a manifest abuse of discretion, but reviewing 

de novo the question of whether a contract authorizes attorney fees); Davis 

v. Beling, 128 Nev. 301, 321, 278 P.3d 501, 515 (2012) (holding that the 

threshold issue for determining whether an attorney fee provision will be 

enforced is "whether the language . . . is clear and unambiguous"). 

Comstock also argues that the district court erred by limiting 

its recovery of costs.7 Reviewing for an abuse of discretion, we disagree. See 

Cadle Co. v. Woods & Erickson, LLP, 131 Nev. 114, 120, 345 P.3d 1049, 1054 

(2015). With respect to the requested costs for expert John S. Wright, an 

MAI certified appraiser, Comstock did not demonstrate that the costs were 

of an attorney and counselor for his or her services is governed by 

agreement, express or implied, which is not restrained by law."). 

7To the extent that Cornstock argues that it was entitled to the full 

amount of costs requested because C & A did not move to retax costs, we 

disagree. In deciding whether and how much to award as costs, the district 

court must follow guiding legal principles, a clear disregard of which would 

be an abuse of discretion. See Ozawa v. Vision Airlines, Inc., 125 Nev. 556, 

563, 216 P.3d 788, 793 (2009) (explaining that a clear disregard of guiding 

legal principles may constitute an abuse of discretion in the context of 

awarding costs). 

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reasonable" or "necessary."8 See Cadle Co., 131 Nev. at 120, 345 P.3d at 

1054 (holding that "costs must be reasonable, necessary, and actually 

incurred"); Bobby Berosini, Ltd. v. People for the Ethical Treatment of 

Animals, 114 Nev. 1348, 1352-53, 971 P.2d 383, 385-86 (1998) (holding that 

a district court may not award costs without evidence to determine whether 

the costs were reasonable); see also Frazier v. Drake, 131 Nev. 632, 651, 357 

P.3d 365, 378 (Ct. App. 2015) (holding that "before any award of expert 

witness fees as costs may be made under NRS Chapter 18, the district court 

must have evidence before it demonstrating that the costs were reasonable, 

necessary, and actually incurred that goes beyond a mere memorandum of 

costs" (internal quotation marks omitted)). Thus, the district court did not 

abuse its discretion by limiting the cost award to the statutory rate for 

experts. See NRS 18.005 (setting a statutory rate of $1500 per expert); 

Cadle Co., 131 Nev. at 120, 345 P.3d at 1054. And because Comstock's 

expert Gary Johnson, a commercial real estate agent, did not provide 

justifying documentation beyond his billing statement, which did not 

provide an itemized breakdown of costs, the district court similarly did not 

abuse its discretion by limiting his associated costs. See Village Builders 

96, L.P. v. U.S. Labs., Inc., 121 Nev. 261, 276-78, 112 P.3d 1082, 1092-93 

(2005) (explaining that providing justification for each copy made or call 

placed is necessary in order for the district court to properly assess whether 

8Although Comstock argues for the first time on appeal that these 

costs were reasonable compared to other experts in the field, this assertion 

is without evidentiary support in the record. We therefore cannot consider 

it. See Old Aztec Mine, Inc. u. 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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Parraguirre 

- , J. 

Herndon 

Sr.J. 

the cost was actually incurred and reasonable); Cadle Co., 131 Nev. at 120, 

345 P.3d at 1054. 

For the reasons set forth in this order, we 

ORDER the judgment of the district court in Docket No. 79881 

AFFIRMED, the judgment of the district court denying NRCP 60(b) relief 

in Docket No. 83279 REVERSED AND REMANDED for proceedings 

consistent with this order, and the judgments of the district court regarding 

attorney fees and costs in Docket No. 83279 AFFIRMED.9

cc: Chief Judge, The First Judicial District Court 

Hon. William A. Maddox, Senior Judge 

Madelyn Shipman, Settlement Judge 

Allison MacKenzie, Ltd. 

Lemons, Grundy & Eisenberg 

Mahe Law, Ltd. 

Guild, Gallagher & Fuller, Ltd. 

Midtown Reno Law 

Carson City Clerk 

9The Honorable Mark Gibbons, Senior Justice, participated in the 

decision of this matter under a general order of assignment. 

12