Schwartz v. Estate of Greenspun

• Decision Date: 28 September 1994
• Docket Number: No. 22999,22999
• Parties: , 23 Media L. Rep. 1022 Milton I. SCHWARTZ; Checker Cab Company of Nevada, Inc., and Yellow Cab Company of Nevada, Inc., Nevada Corporations, Appellants/Cross-Respondents, v. The ESTATE OF Herman Milton GREENSPUN, Brian Lee Greenspun and Las Vegas Sun, Inc., a Nevada Corporation, Respondents/Cross-Appellants.
• Court: Nevada Supreme Court

Page 638

881 P.2d 638

110 Nev. 1042, 23 Media L. Rep. 1022

Milton I. SCHWARTZ; Checker Cab Company of Nevada, Inc. and Yellow Cab Company of Nevada, Inc., Nevada Corporations, Appellants/Cross-Respondents, v. The ESTATE OF Herman Milton GREENSPUN, Brian Lee Greenspun and Las Vegas Sun, Inc., a Nevada Corporation Respondents/Cross-Appellants.

No. 22999.

Supreme Court of Nevada.

Sept. 28, 1994.

Frederic I. Berkley, Las Vegas, for appellants, cross-respondents.

Beckley, Singleton, DeLanoy, Jemison & List and Daniel F. Polsenberg, Moran & Weinstock, Las Vegas, Gipson, Hoffman & Pancione and Vincent H. Chieffo, Los Angeles, CA, for respondents/cross-appellants.

OPINION

STEFFEN, Justice:

Appellants Milton I. Schwartz, Checker Cab Company and Yellow Cab Company of Nevada (collectively "Schwartz") filed the instant action against the late Herman Greenspun, Brian Greenspun and their family-operated newspaper, the Las Vegas Sun, Inc. (collectively "Greenspun"). ¹ Schwartz alleged claims for defamation and intentional infliction of emotional distress based upon Greenspun's publication of five articles in the Las Vegas Sun. During the course of the proceedings, the district court twice denied Greenspun's motion to dismiss pursuant to NRCP 41(e) and Schwartz rejected an offer of judgment made by Greenspun pursuant to NRCP 68 and NRS 17.115. Prior to trial, the district court excluded Schwartz's expert witness. After a lengthy trial, the jury returned a defense verdict and the district court awarded Greenspun attorney's fees and costs. Schwartz appealed the district court's orders excluding his expert witness and awarding fees and costs. On cross appeal, Greenspun complains that the district court erroneously denied the motions to dismiss.

For the reasons hereafter discussed, we affirm the district court's exclusion of Schwartz's expert and the award of attorney's fees and costs to Greenspun.

FACTS

Milton Schwartz is an officer and part owner of Yellow Cab Company and Checker Cab Company. The instant controversy stems from five columns entitled "Where I Stand" written by Brian Greenspun and the late Herman "Hank" Greenspun and published in the respondent newspaper, the Las Vegas Sun. In the articles, Greenspun denounced as unsafe the site which housed a 30,000 gallon propane tank used to fuel Schwartz's cabs. The articles decried Schwartz and various government officials for failing to relocate the tank to a less populated area.

On June 5, 1985, Schwartz filed the instant action against the Sun and Greenspun, asserting claims for common law defamation and intentional infliction of emotional distress. Schwartz alleged that the articles falsely accused him and his companies of engaging in acts of bribery and other improprieties in connection with obtaining governmental approval for the site and operation of the propane tank.

In the midst of the litigation, Greenspun petitioned this court for extraordinary relief in connection with a discovery order. That proceeding terminated on September 29, 1988, in favor of Greenspun. See Las Vegas Sun v. District Court, 104 Nev. 508, 761 P.2d 849 (1988). No stay was in effect during the pendency of the writ proceedings.

On August 28, 1990, Greenspun filed a motion under NRCP 41(e) seeking dismissal of the action for failure to bring the case to trial within five years. Schwartz opposed the motion on the ground that the three-year saving provision of NRCP 41(e) extended the time within which to bring the case to trial to September 29, 1991. The district court denied Greenspun's motion without opinion and trial was scheduled for September 16, 1991.

Approximately one month before trial, Greenspun again moved to dismiss under NRCP 41(e). Concurrently, Greenspun moved for summary judgment on the grounds that Schwartz had failed to prove constitutional malice by clear and convincing evidence. Greenspun argued that Schwartz was required to prove constitutional malice because Schwartz was a public figure and the newspaper articles involved matters of public concern. The district court again denied Greenspun's motion to dismiss without opinion. It also denied Greenspun's motion for summary judgment, ruling that Schwartz and the cab companies were not public figures.

On September 6, 1991, Greenspun extended an offer of judgment to Schwartz pursuant to NRCP 68 and NRS 17.115. Greenspun offered the three plaintiffs $25,000 each. The offer was rejected and the matter proceeded to trial.

Prior to the commencement of trial, the district court granted Greenspun's motion in limine and excluded all newspaper articles not relevant to Schwartz's claims. The district court also excluded Schwartz's expert, Robert Lichter, whose testimony was to consist of an analysis of the excluded articles.

Voir dire began on September 16, 1991, and the jury was impanelled on September 17, 1991; however, the jury did not begin to hear the case until September 19, 1991. After a four-week trial, the jury returned a defense verdict.

Following the entry of judgment, Greenspun filed a motion for attorney's fees and costs, together with memoranda and supplemental memoranda of costs and disbursements. Schwartz opposed the motion and a hearing was held on January 27, 1992. The district court awarded Greenspun attorney's fees and costs pursuant to NRCP 68, NRS 17.115 and NRS 18.020. This appeal ensued.

DISCUSSION

On appeal, Schwartz assigns error to the district court's order excluding his expert witness and awarding attorney's fees and costs to Greenspun. Greenspun's cross-appeal challenges the district court's rulings denying his motions to dismiss under NRCP 41(e).

1. Exclusion of Expert Witness

Schwartz retained Dr. S. Robert Lichter to analyze 193 articles from the Sun and the Las Vegas Review Journal, which discussed Schwartz. Schwartz asserts that based on a "content-analysis," Dr. Lichter would have testified that Greenspun's articles fell below the degree of care required by accepted journalistic standards. Schwartz also contends that Lichter would have testified regarding Greenspun's state of mind, which was relevant to prove malice.

Exclusion of expert testimony is within the district court's sound discretion. Griffin v. Rockwell Int'l, Inc., 96 Nev. 910, 911, 620 P.2d 862, 863 (1980). Absent an abuse of that discretion, this court will not interfere with the lower court's ruling. Id. Upon careful consideration of the record and Dr. Lichter's testimony was irrelevant to the issue of constitutional malice because Schwartz's claim was for common law defamation and the district court had ruled that the plaintiffs were private figures. See Nevada Indep. Broadcasting v. Allen, 99 Nev. 404, 414, 664 P.2d 337, 344 (1983). And, Schwartz's offer of proof demonstrated that Dr. Lichter was not expressing an opinion on common law malice. ² Dr. Lichter's proffered testimony concerning professional journalistic standards was also irrelevant given the district court's ruling that professional journalistic standards were inapplicable since Schwartz needed only to prove ordinary negligence.

arguments on appeal, we are unable to discern an abuse of discretion by the trial judge.

In short, the testimony Schwartz intended to offer through Dr. Lichter would not have assisted the jury in understanding the evidence or in determining a fact in issue. See NRS 50.275. Thus, the testimony was properly excluded.

2. Attorney's Fees and Costs

In a post-trial motion for attorney's fees and costs, Greenspun requested $222,823.43 in costs and $277,771.25 in attorney's fees. The district court awarded Greenspun $125,046.70 in costs and $150,000 in attorney's fees, to be allocated among the three law firms representing the Greenspun defendants. Interest was awarded on the total amount of $275,046.70 from the time of entry of the order (March 19, 1992) until paid.

Schwartz contends that the award of attorney's fees and costs was erroneous because: (1) the offer of judgment was untimely; (2) the district court awarded attorney's fees without making specific findings as to each of the four factors announced in Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983); and (3) the award of costs may include costs not recoverable under NRS 18.005. Each contention will be considered in turn.

A. Timeliness of Offer of Judgment

The trial in this matter was scheduled to commence on September 16, 1991. On September 6, 1991, Greenspun made an offer of judgment to Schwartz for a total amount of $75,000, divided equally among the three plaintiffs. The offer was made pursuant to NRCP 68 and NRS 17.115. Schwartz contends that the offer of judgment was untimely because it was not made more than ten days before trial began.

Under NRCP 68, an offer of judgment can be made "[a]t any time more than 10 days before the trial begins...." The ten-day period is determined in accordance with NRCP 6(a). ³ See Polk v. Montgomery County, 130 F.R.D. 40, 42 (D.Md.1990).

Schwartz maintains that the trial began on September 16, 1991--the first day of voir dire. Contrarily, Greenspun contends that for purposes of Rule 68, trial begins with the presentation of the case to the fact-finder, which in this case did not occur until September 19.

In determining when trial commences for purposes of NRCP 68, it is necessary to consider the policy underlying the rule. With respect to NRCP 41(e), we have said that a case is brought to trial by, inter alia, examining jurors. See Smith v. Timm, 96 Nev. 197, 200, 606 P.2d 530, 531 (1980). For the purpose of determining double jeopardy, trial begins when the jury is impanelled and sworn. Serfass v. United States, 420 U.S. 377, 388, 95 S.Ct. 1055, 1062-63, 43 L.Ed.2d 265 (1975). Regarding Rule 68, the "infrequently encountered" issue of when trial begins has been held to be "when the trial judge calls the proceedings to order and actually commences to hear the case." Greenwood v. Stevenson, 88 F.R.D. 225, 229 (D.R.I.1980...