Simas Floor Co., Inc. v. Tysen, No. 14245

Docket NºNo. 14245
Citation669 P.2d 708, 99 Nev. 691
Case DateSeptember 27, 1983
CourtSupreme Court of Nevada

Page 708

669 P.2d 708
99 Nev. 691
SIMAS FLOOR CO., INC., Appellant,
v.
Drusilla TYSEN, dba Strawberry Shortcake, et al., Respondents.
No. 14245.
Supreme Court of Nevada.
Sept. 27, 1983.

Fran P. Archuleta, Reno, for appellant.

Sala, McAuliffe, White & Long, and J. Michael Memeo, Reno, for respondents.

[99 Nev. 692] OPINION

PER CURIAM:

This is an appeal from a judgment in a contract dispute. The sole issue presented is whether the district court committed reversible error in awarding attorney's fees to the defendant below, respondent Tysen. We conclude that the district court did not commit reversible error, and we therefore affirm the award of attorney's fees.

Appellant ("Simas"), plaintiff below, filed a complaint against Tysen, alleging that Tysen had failed to pay Simas for certain services rendered by Simas. Simas specifically alleged that Tysen had agreed to pay $5,383.50 for these services, and prayed for judgment in this amount, with interest. Simas also alleged that it had suffered "special and general damages" in excess of $10,000, and prayed for judgment in that amount.

Tysen filed an answer and counterclaim in the lawsuit, and the matter proceeded to trial.

At trial, Simas presented evidence that the price for the services rendered to Tysen was $5,383.50. Simas presented no evidence, however, supporting the allegation of special and general damages. At the conclusion of trial, the district court entered judgment for Tysen on Simas' complaint, and awarded Tysen $750 in attorney's fees. The district court also entered judgment for Simas on Tysen's counterclaim. This appeal followed.

Simas contends on appeal that under NRS 18.010(2)(c) 1, the district court had no

Page 709

authority to award attorney's fees to Tysen, because Simas sought recovery in excess of $10,000. Simas relies on Peacock Jewelers, Inc. v. Nevada St. Bk., 92 Nev. 654, 556 P.2d 1266 (1976), where we summarily vacated an award of attorney's fees to a prevailing defendant because the complaint "sought" more than $10,000.

Although Peacock Jewelers, Inc. seemingly supports Simas' position, Tysen contends that that decision should not control here, because Simas provided absolutely no support, in its [99 Nev. 693] pleadings, at trial or otherwise, for its allegation of damages in excess of $10,000. We agree with Tysen's contention. The complaint in this case was based solely on a theory of breach of contract, and Simas alleged a specific amount of money owed by...

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4 practice notes
  • Cook v. Sunrise Hospital & Medical Center, No. 47220.
    • United States
    • Nevada Supreme Court of Nevada
    • October 30, 2008
    ...no extensive legal arguments taking place in support of giving a jury instruction, satisfied NRCP 51(c)'s requirements). 4. Barnes, 99 Nev. at 691 n. 1, 669 P.2d at 710 n. 1. 5. Id.; see, e.g., Tidwell v. Clarke, 84 Nev. 655, 660, 447 P.2d 493, 496 (1968) (providing that when counsel timely......
  • Barnes v. Delta Lines, Inc., No. 13699
    • United States
    • Nevada Supreme Court of Nevada
    • September 27, 1983
    ...that the refusal to give the negligence per se instruction was not prejudicial to appellants' case. A negligence per se instruction would [99 Nev. 691] have served to shift the burden of proof to respondents to show excuse or justification, thereby relieving appellants of the burden of esta......
  • Del Piero v. Phillips, No. 18648
    • United States
    • Nevada Supreme Court of Nevada
    • February 22, 1989
    ...is no question that the jury may have reached a different result if it had been properly instructed on the law of negligence per se." 99 Nev. at 691, 669 P.2d at 711 (1983); see Meyer v. Swain, 104 Nev. 595, 763 P.2d 337 (1988). There is ample evidence which would have supported a jury find......
  • Campbell v. Nocilla, C-B
    • United States
    • Nevada Supreme Court of Nevada
    • January 3, 1985
    ...attorney's fees to a prevailing defendant because the complaint "sought" more than $10,000. Respondent relies on Simas Floor Co. v. Tysen, 99 Nev. 691, 669 P.2d 708 (1983), where Page 493 we held that under the circumstances of that case, although the complaint prayed for damages in excess ......
4 cases
  • Cook v. Sunrise Hospital & Medical Center, No. 47220.
    • United States
    • Nevada Supreme Court of Nevada
    • October 30, 2008
    ...no extensive legal arguments taking place in support of giving a jury instruction, satisfied NRCP 51(c)'s requirements). 4. Barnes, 99 Nev. at 691 n. 1, 669 P.2d at 710 n. 1. 5. Id.; see, e.g., Tidwell v. Clarke, 84 Nev. 655, 660, 447 P.2d 493, 496 (1968) (providing that when counsel timely......
  • Barnes v. Delta Lines, Inc., No. 13699
    • United States
    • Nevada Supreme Court of Nevada
    • September 27, 1983
    ...that the refusal to give the negligence per se instruction was not prejudicial to appellants' case. A negligence per se instruction would [99 Nev. 691] have served to shift the burden of proof to respondents to show excuse or justification, thereby relieving appellants of the burden of esta......
  • Del Piero v. Phillips, No. 18648
    • United States
    • Nevada Supreme Court of Nevada
    • February 22, 1989
    ...is no question that the jury may have reached a different result if it had been properly instructed on the law of negligence per se." 99 Nev. at 691, 669 P.2d at 711 (1983); see Meyer v. Swain, 104 Nev. 595, 763 P.2d 337 (1988). There is ample evidence which would have supported a jury find......
  • Campbell v. Nocilla, C-B
    • United States
    • Nevada Supreme Court of Nevada
    • January 3, 1985
    ...attorney's fees to a prevailing defendant because the complaint "sought" more than $10,000. Respondent relies on Simas Floor Co. v. Tysen, 99 Nev. 691, 669 P.2d 708 (1983), where Page 493 we held that under the circumstances of that case, although the complaint prayed for damages in excess ......

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