Gunderson v. D.R. Horton, Inc.

Citation130 Nev. Adv. Op. 9,319 P.3d 606
Decision Date23 April 2014
Docket NumberNo. 56614.,56614.
PartiesRobert GUNDERSON; Phyllis Gunderson; Sharron Libby; Rosario Layton; Tomi Duren; Linda Waters; Jessica Grant; Clifford Couser; Charina Couser; Deanna Davis; Richard T. Jones; Messina Klein; Melanie Moore; John Menichelli; Bernadette Menichelli; Suzanne Allen; Robert Weber; Karen Kellison; Juan Lopez; Helen Scungio; Shonna Mayfield; Gunther R. Paul; Sharon Epstein; Stephen Gregory; Wendy Murata; Vanessa Caster; Wanda Berkholtz; Dennis Werra; Amanual Asfaha; Edit Molnar; Frank Sutton; Gaganath M. Pyara; Jesse Saunders; Jodi Martin; Joshua Davis; Kristi Rodriguez; Lynn Nowakowski–Bacon; John Nowakowski–Bacon; Margaret Dudley; Michelle Johnson; Miguel Santana; Desiree Santana; Patricia Barrett; Randy Ferren; Patrick McGough; Nancy Jansen; and Barbara Werra, Appellants/Cross–Respondents, v. D.R. HORTON, INC., a Delaware Corporation, Respondent/Cross–Appellant.
CourtSupreme Court of Nevada

OPINION TEXT STARTS HERE

James R. Christensen, Las Vegas, for Appellants/Cross–Respondents Robert Gunderson,Phyllis Gunderson, Linda Waters, Jessica Grant, Clifford Couser, John Menichelli, Bernadette Menichelli, Robert Weber, Juan Lopez, Helen Scungio, Shonna Mayfield, Gunther R. Paul, Wendy Murata, Wanda Berkholtz, Lynn Nowakowski–Bacon, Margaret Dudley, Michelle Johnson, Patricia Barrett, Patrick McGough, Nancy Jansen, and Barbara Werra.

Sharron Libby, Rosario Layton, Tomi Duren, Charina Couser, Deanna Davis, Richard T. Jones, Messina Klein, Melanie Moore, Suzanne Allen, Karen Kellison, Sharon Epstein, Stephen Gregory, Vanessa Caster, Dennis Werra, Amanual Asfaha, Edit Molnar, Frank Sutton, Gaganath M. Pyara, Jesse Saunders, Jodi Martin, Joshua Davis, Kristi Rodriguez, John Nowakowski–Bacon, Miguel Santana, Desiree Santana, and Randy Ferren, in Proper Person.

Wolfenzon Rolle and Bruno Wolfenzon and Jonathan P. Rolle, Las Vegas; Marquis Aurbach Coffing and Jack Chen Min Juan and Micah S. Echols, Las Vegas, for Respondent/Cross–Appellant.

Before the Court En Banc.1

OPINION

By the Court, DOUGLAS, J.:

In this opinion, we address whether the district court abused its discretion by: (1) denying a motion for a new trial based on allegations of attorney misconduct; (2) not granting sanctions under NRS 17.115 and NRCP 68; and/or (3) refusing to consider apportioning sanctions. We conclude that the district court did not abuse its discretion in denying appellants'/cross-respondents' motion for a new trial, but did abuse its discretion regarding the issuance and apportionment of sanctions. We hold that: (1) the district court was statutorily required to issue sanctions under NRS 17.115 and NRCP 68; (2) when a district court issues sanctions against multiple offerees pursuant to NRS 17.115 and NRCP 68, it has and must exercise its discretion to determine whether to apportion those sanctions among the multiple offerees or to impose those sanctions with joint and several liability; and (3) when sanctions are issued against multiple homeowner offerees pursuant to NRS 17.115 and NRCP 68 in a construction defect action, a district court abuses its discretion by imposing those sanctions jointly and severally against the homeowners. Accordingly, we affirm the district court's decision in part, reverse in part, and remand the matter to the district court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

Appellants/cross-respondents, homeowners in the High Noon at Boulder Ranch community (the homeowners), retained experts to inspect their homes for construction defects. Based on their experts' findings, the homeowners sent respondent/cross-appellant contractor D.R. Horton, Inc., a written notice detailing alleged architectural, insulation, waterproofing, and other defects. In response, D.R. Horton notified the homeowners of its intent to inspect the alleged defects to determine how to respond to the homeowners' notice. The homeowners then filed a complaint, seeking relief primarily under theories of negligence and breach of warranty.

After receiving the homeowners' complaint, D.R. Horton elected to repair the identified defects. Subsequently, the district court stayed proceedings on the homeowners' complaint to allow D.R. Horton to make repairs. After completing its work, D.R. Horton provided the homeowners with a formal statement of repairs. The district court then lifted the stay, and the homeowners filed an amended complaint. In response, D.R. Horton filed an answer and a third-party complaint against several subcontractors.

Before trial, D.R. Horton served individual offers of judgment on each of the homeowners based on the extent of their respective property's defects; 39 of the 40 homeowners rejected these offers and proceeded to trial.

During closing arguments, counsel for D.R. Horton and counsel for third-party defendant RCR Plumbing made multiple statements that the homeowners' counsel objected to as attorney misconduct. The district court sustained several of these objections without admonishing counsel or the jury. At the conclusion of the trial, the jury awarded verdicts for each homeowner, totaling $66,300 in damages. No individual homeowner's award exceeded his or her offer of judgment from D.R. Horton.

Following the jury's verdicts, the homeowners and D.R. Horton filed motions for costs and attorney fees. The district court determined that D.R. Horton made valid offers of judgment and that no homeowner's award exceeded his or her respective offer. Accordingly, the district court awarded D.R. Horton post-offer costs, but declined to award it attorney fees. Despite awarding D.R. Horton post-offer costs, the district court denied both motions, stating that it was impossible to award apportioned costs and fees under the circumstances. The homeowners then filed a motion for a new trial, or, in the alternative, additur. D.R. Horton opposed the homeowners' motion and filed a countermotion for remittitur, requesting that the district court reduce the verdicts to zero. Again, the district court denied both motions. This appeal and cross-appeal followed.

In their appeal and cross-appeal, the homeowners and D.R. Horton assert a number of arguments. While we conclude that most of these arguments do not warrant specific discussion,2 we take this opportunity to address the homeowners' argument that the district court abused its discretion in denying their motion for a new trial based on attorney misconduct and both parties' contentions that they were entitled to costs and attorney fees.

DISCUSSION
I. The district court did not abuse its discretion in denying a new trial for attorney misconduct

The homeowners argue that the district court should have granted their motion for a new trial because D.R. Horton's counsel repeatedly committed misconduct throughout the trial. Specifically, the homeowners claim that D.R. Horton's counsel violated RPC 3.4(e) and our decision in Lioce v. Cohen, 124 Nev. 1, 174 P.3d 970 (2008), by urging the jurors to “send a message” because this case was driven by attorneys and experts, the homeowners were liars, and the trial was a waste of the jury's time. The homeowners also assert that, even if the specific instances of misconduct were not independently sufficient to warrant a new trial, the cumulative effect of D.R. Horton's counsel's misconduct required the district court to grant the homeowners' motion for a new trial. We disagree.

This court reviews a district court's decision to grant or deny a motion for a new trial for an abuse of discretion. Lioce, 124 Nev. at 20, 174 P.3d at 982. “Whether an attorney's comments are misconduct is a question of law, which we review de novo; however, we will give deference to the district court's factual findings and application of the standards to the facts.” Id.

Under NRCP 59(a)(2), the district court may grant a new trial if the prevailing party committed misconduct that affected the aggrieved party's substantial rights. In Lioce, this court discussed the applicable legal standards for reviewing a district court's denial of a motion for a new trial based on attorney misconduct. See Lioce, 124 Nev. at 14–26, 174 P.3d at 978–86. Under Lioce, this court decides whether there was attorney misconduct, identifies the applicable legal standard for determining whether a new trial was warranted, and assesses whether the district court abused its discretion in applying that standard. See id. at 14–26, 174 P.3d at 978–86.

When an attorney commits misconduct, and an opposing party objects, the districtcourt should sustain the objection and admonish the jury and counsel, respectively, by advising the jury about the impropriety of counsel's conduct and reprimanding or cautioning counsel against such misconduct. Id. at 17, 174 P.3d at 980;see also Black's Law Dictionary 55 (9th ed. 2009) (defining “admonition” as [a]ny authoritative advice or caution from the court to the jury regarding their duty as jurors or the admissibility of evidence for consideration,” or [a] reprimand or cautionary statement addressed to counsel by a judge”). In the event of a proper objection and admonition, “a party moving for a new trial bears the burden of demonstrating that the misconduct [was] so extreme that the objection and admonishment could not remove the misconduct's effect.” Lioce, 124 Nev. at 17, 174 P.3d at 981. If the district court overrules the objection, the party moving for a new trial must show that the district court erred in its ruling and that “an admonition to the jury would likely have affected the verdict in favor of the moving party.” Id. at 18, 174 P.3d at 981.

An attorney's failure to object constitutes waiver of an issue, unless the failure to correct the misconduct would constitute plain error. Id. at 19, 174 P.3d at 982. Establishing plain error requires a party to show that “the attorney misconduct amounted to irreparable and fundamental error,” resulting “in a substantial...

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